State v. Bd. of St. & Water Com'rs of Jersey City

• Decision Date: 22 December 1893
• Parties: STATE (McDERMOTT. Prosecutor) v. BOARD OF STREET & WATER COM'RS OF JERSEY CITY et al.
• Court: New Jersey Supreme Court

28 A. 424

56 N.J.L. 273

STATE (McDERMOTT. Prosecutor)

v. BOARD OF STREET & WATER COM'RS OF JERSEY CITY et al.

Supreme Court of New Jersey.

Dec. 22, 1893.

(Syllabus by the Court.)

Certiorari, at the suit of Allan L. McDermott, against the board of street and water commissioners of Jersey City and others, to review certaIn resolutions and proceedings of defendant board. Reversed.

Argued November term, 1893, before DIXON and ABBETT, JJ.

Allan L. McDermott, in pro. per.

William D. Edwards, for defendants.

ABBETT, J. The certiorari in this case removed into this court, for review, certain resolutions and proceedings awarding contracts for asphalt paving in Jersey City, under proposals received by the board of street and water commissioners. The board advertised for bids for laying asphalt pavement, to be paid for out of the license money collected by the city, as provided in sections 5 and 6 of chapter 134 of the Laws of 1891, (Laws 1891, p. 259,) and further provided for in chapter 82 of the Laws of 1893, (Laws 1893, p. 164.) Bids were received therefor from the Trinidad Asphalt Company and the Barber Asphalt Company. The work would cost $50,920 under the bid of the Trinidad Asphalt Company, and $41,982 under the bid of the Barber Asphalt Company. The board did not award the contract to either. They divided it, giving paving to the highest bidder amounting to $32,805, and giving the lowest bidder paving amounting to $13,878. The preamble to the resolution awarding portions of the work to each company declares "that the samples [of asphalt] submitted are above the standard requirements, and this board has examined into the financial standing of both bidders, and finds them responsible; and as the prices bid, covering a guaranty of ten years, are advantageous to the city, and as the cost of preparation in establishing a plant to prepare the asphalt for street laying is between twelve thousand and twenty thousand dollars, it is advisable to make the contract of sufficient size as to amount of work to justify the erection of a plant; and as the laying of asphalt pavement has not been heretofore attempted in this city, and as the money to pay for the work on which bids were received is payable out of the excise moneys, and not by assessment, and this board believing it to be for the best interest of the city to divide the work between the bidders with a view of comparison of their work, inasmuch as the Barber Asphalt Paving Company has had the greater experience in laying the pavement, and the Trinidad Asphalt Paving Company has had the greater experience in refining the product, as we are informed: Therefore, resolved," etc. The resolution was presented to the acting mayor on August 19, 1893, and became operative within 10 days thereafter, under section 2 of the supplement to the city charter, approved March 24, 1873, (Laws 1873, p. 400,) he not having vetoed the same. He did not formally approve the same, but in a communication to the board, dated August 29, 1893, after giving his views, states: "I have decided to let the resolution stand."

Our opinion is that under the city charter this improvement was one that was to be borne by the city at large and paid by general tax, and that the proposed work cannot be paid for by assessment for benefits. Under the fifth section of said act of 1891, the board has power, in its discretion, to pave, repair, or improve, at public expense any part of any...