J. B. Lyon Co. v. Morris

237 A.D. 304, 261 N.Y.S. 285, 1932 N.Y. App. Div. LEXIS 5336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1932
• Status: Published

Opinions

Hill, J.

The Superintendent of the Division of Standards and Purchase of the State of New York and the Secretary of State appeal from an order of peremptory mandamus directing them to deliver to the respondent the copy and material from which to print certain election supplies for the year 1932. Section 3 of the State Printing Law classifies the State public printing “ into three principal parts.” We are not concerned here with the “ first ” and “ third ” parts. The “ second ” part is defined — “ The second part shall be known as the department printing, which shall include all printing for the various offices, institutions and departments of the State, other than legislative, classified as department printing by the Board of Estimate and Control, pursuant to this chapter.” The “ three principal parts ” of the public printing are to be let by the Board of Estimate and Control as provided in section 4 of the State Printing Law. “ It shall be the duty of said Board, * * * to let to the lowest bidder, * * * all contracts for the work embraced in the three several parts in this chapter, defined, excépt.” Then follow certain items like examination papers, law briefs and agricultural bulletins which are not to be contracted. Until 1922 there was included among the exemptions “ The printing authorized by the Election Law.” These words were deleted by chapter 643 of the Laws of 1922 (amdg. State Printing Law [Laws of 1917, chap. 667], §§ 3, 4, as amd. by Laws of 1921, chap. 337). The department printing is classified by the Board of Estimate and Control (now the Division of Standards and Purchase)

* as to size, material required, and numerous other details, and listed in groups lettered from A to Q, inclusive. Bids are accepted separately on each group. The respondent, either as original bidder or as assignee, held a contract with the State to furnish certain of the groups during the year beginning July 1, 1931, and ending June 30, 1932. If the election printing was included in the general printing contract, it fell among the groups let to respondent. It was not specifically mentioned, but was of the size and general description contained in the groups in respondent’s contract. The appellant Superintendent invited bids for election printing for the year 1932 to be submitted on May 11, 1932. Among others, the respondent submitted a bid at a sum several thousand dollars less than it would have received had the work been done or the items furnished under the general contracts which it held with the State. However, it was not the low bidder, and the contract was about to be awarded to another at a figure substantially below respondent’s bid. The respondent sought the mandamus order upon the assertion that the election printing was included in its department printing contract, and that the Secretary of State neither directly nor through the Superintendent of Standards and Purchase, had authority to let the separate contract.

The jurisdiction and the duty of the Secretary of State to enter into a separate contract for election printing was unquestioned until 1922. Section 76 of the Election Law in 1922 and at the time when bids were invited in 1932, directed that “ The Secretary of State shall purchase, whenever he deems it desirable for the best interest of the State,” the election printing and supplies involved in this proceeding. (See Laws of 1922, chap. 588, § 76, as amd. by Laws of 1923, chap. 804.) Respondent’s argument, that the deletion (by chapter 643 of the Laws of 1922) of election printing from the items to be excepted from the general printing contract shows a legislative intent that such printing should be let with other department printing, is persuasive and would be conclusive except that other statutory authority for the exclusion exists. Section- 7 of the State Printing Law (as amd. by Laws of 1929, chap. 618) says: “ The Board of Estimate and Control may exclude from the department printing and classify as supplies such blanks, circulars, blank books, pamphlets, envelopes, letter heads and note heads, and similar printing, as it deems proper,” and likewise in section 8 of the same law (as amd. by Laws of 1922, chap. 643), “ Separate contracts may be made at any time * * * for any description of printing or of any article of stationery not specifically mentioned in the contract or contracts [those for general printing] and involving an expense of more than five hundred dollars.” Election printing is not “ specifically mentioned ” in respondent’s contract and the expense thereof is more than $500. The uncertainty as to the legislative intent occasioned by the deletion effected by the amendment of 1922 is clarified by the fact that each year thereafter the Legislature has included in the Appropriation Act an item for the Department of State to cover the expense of election printing. (For 1930, see chap. 85, p. 285, of the Laws of 1930; for 1931, see chap. 21, p. 193, of the Laws of 1931.)

Election printing has been the subject of a separate contract each year since 1922. The respondent has bid each year, usually with success, and has held each year the same contract for general printing as in 1932. This practical construction of these statutes, both by the State and respondent, sustains the letting of the separate contract for 1932. (Story v. Craig, 231 N. Y. 33, 40.)

The order should be reversed, with costs, and the petition dismissed, with fifty dollars costs and disbursements.

Van Kirk, P. J., and Crapser, JJ., concur; Rhodes, J., concurs in the result, with a memorandum; Hinman, J., dissents, with an opinion.

Rhodes, J. It seems to me the acts and conduct of the parties constitute a practical interpretation of the contract, as indicated by Justice Hill. I, therefore, concur in the result for reversal.

See State Dept. Law, § 15, as amd. by Laws of 1927, chap. 12; Id. § 54, as added by Laws of 1926, chap. 546.— [Rep.