Opinion
May, 1906.
Judgment affirmed, with costs, on opinion of Kruse, J., delivered at Special Term. All concurred, except Spring, J., who dissented in a memorandum; Kruse, J., not sitting.
By the ordinances passed on the 25th of July, 1900, and which comprise Exhibit A of the record, an entire new scheme was blocked out to collect and dispose of the waste paper and other litter which collected upon the streets. In the 1st paragraph or subdivision the duty was imposed upon the board of public works to take charge of this business. In order to carry out the scheme that department was authorized to enter into a contract with a responsible person or firm for the erection and maintenance of 300 of the boxes or receptacles designed for the deposit of this litter. By this contract the person or firm was to have "the exclusive right and privilege for a period of ten years * * * to erect and maintain such boxes." In the first place, I do not think the project was intended to be experimental, unless it can be said that because a new method or plan was intended to be adopted pursuant to the ordinances an experiment was involved. The scheme was designed to continue for at least ten years, for the first contract to be entered into was to extend over that period. A contract of that length, covering the entire city, is too extensive to denominate it a mere experiment. In the second place, it seems to me to narrow the scope of the contract to limit the authority to the original agreement which the board of public works was to enter into. We must keep in mind that this whole business was committed to the board of public works and the making of the contract was simply the mode of executing it. It would be rare that the one contract would continue for a period of ten years, and the board of public works in order to make effectual the new plan adopted must possess the power to make new agreements as occasion should arise. The ordinances themselves, it seems to me, inherently indicate this purpose. By subdivision 4 the department of public works is directed "as frequently as shall be necessary" to provide for the taking care of the waste paper and litter. Again in subdivision 5 the expression "to any contract" is used, and in the succeeding subdivision in referring to the license or privilege we find the following language: "With whom such contract or contracts shall be made." The city is fully protected. In the first place, by subdivision 6, the right is given to terminate the contract upon sixty days' notice; in the second place, if it desired to abandon the business, it could do so by repealing the ordinances. Pursuant to the authority given it, the department of public works, now a commissioner, entered into an agreement which continued along until 1902, when he terminated it under the sixty-day clause. He immediately entered into another agreement with the plaintiff, which the common council disapproved, but did not repeal the ordinances. It is not necessary here to discuss the right of the common council to interfere with the commissioner of public works to the extent of annulling the agreement which he has made. The point is, it seems to me, that the agreement was valid when executed, and whatever expenses have been incurred, and it seems some were incurred, or whatever rights accrued to the plaintiff by virtue of the agreement, it may be entitled to. That is, it was a valid agreement at its inception because the board of public works was authorized to make it. The only question, therefore, to consider is what the ordinances meant, and it does not seem to me, in view of the scope of the business, of the power committed to the board of public works, the phraseology of the ordinances and the extent of the plan designed, that we can say it should be limited to the first contract made by the board. I think the judgment should be reversed.