State v. City of Trenton

• Decision Date: 28 February 1887
• Citation: 12 A. 902,49 N.J.L. 339
• Parties: STATE ex rel. SHAW v. CITY OF TRENTON.
• Court: New Jersey Supreme Court

12 A. 902

49 N.J.L. 339

STATE ex rel. SHAW

v. CITY OF TRENTON.

Supreme Court of New Jersey.

February Term, 1887.

On certiorari. The state, on the application of David Shaw, prosecutor, brought this writ of certiorari against the common council of the city of Trenton, to test the validity of an award by it of a contract to furnish "rubber fire-hose" to the city.

Argued at November term, 1886, before REED, MAGIE, and PARKER, JJ.

James Buchanan and S. H. Grey, for the prosecutor. Wm. N. Lanning and B. Gummere, for the City.

MAGIE, J. This writ has brought before us the proceedings of the common council of Trenton awarding to the Trenton Rubber Company a contract for furnishing the city with 4,500 feet of rubber fire-hose. Ten reasons are relied on to establish a lack of power in the council to award this contract.

Prosecutor's claim, as disclosed by his reasons, is that this contract is of a kind which is required by the city charter to be opened to competition in a specified mode, and to be awarded to the lowest bidder, and which would be beyond the power of the city to enter into, unless awarded according to those requirements, and that the contract awarded was not opened to competition, as required, or, if so, was not awarded to the lowest bidder. The city charter was approved March 19, 1874, (Pamph. L. p. 385.) The provisions invoked by prosecutor are contained in section 107, and require that all contracts for doing work, etc., extending in amount to $200, shall be advertised for 10 days in one or more daily newspapers, etc., and "shall at all times be given to the lowest bidder or bidders who shall give satisfactory proof of his or their ability to furnish the requisite materials, and perform the work properly, and offer sufficient security for the faithful performance of the contract in regard to time, quality of material, and work to be clone." That the proposed contract is of a kind which falls within the purview of this section has not been questioned. Nor has it been contended that such a contract could be made by the city without a substantial compliance with the provisions of this section. Such has been the determination of the courts of New York upon similar provisions. Brady v. New York, 20 N. Y. 312; Brown v. Mayor, 63 N. Y. 239; Parr v. Greenbush, 72 N. Y. 463; Dickinson v. Poughkeepsie, 75 N. Y. 65. The case of Brady v. New York, ubi supra, was cited with approval by the learned chief justice in Cory v. Freeholders, 44 N. J. Law, 445, as sustaining the doctrine that such provisions limit the municipal power to contract,—a doctrine from which there seems to be but little dissent. It has also been settled that such provisions require all such contracts to be opened to competition in the mode specified. A similar section in the charter of Elizabeth was held to prohibit the use of a patented pavement, on the ground that it required a competition in proposals, which could not be afforded where the work to be done was covered by a patent. State v. Elizabeth, 35 N. J. Law, 351.

It is, however, insisted that such provisions do not require contracts to be awarded to the person who proposes at the lowest price, but that council possesses power to determine who the lowest bidder is upon the consideration of other circumstances than the mere price proposed. The section in question specifies two qualifications which the lowest bidder must have to be accepted. One qualification is that he shall give satisfactory proof of his ability to furnish the requisite materials, and perform the work properly. The other qualification is the offer of sufficient security for the faithful performance of the contract in the particulars specified. Council may doubtless determine whether these qualifications attach to the bidder. If, when acting in good faith, they decide adversely to him, they would not be required to award him the contract, though he had proposed the lowest price. But the...