State v. Kern

• Decision Date: 02 March 1889
• Citation: 51 N.J.L. 259,17 A. 114
• Parties: STATE v. KERN et al.
• Court: New Jersey Supreme Court

17 A. 114

51 N.J.L. 259

STATE

v. KERN et al.

Supreme Court of New Jersey.

March 2, 1889.

(Syllabus by the Court.)

Certiorari to court of quarter sessions, Hudson county; LIPPINCOTT, Judge.

Motion to quash indictments.

Argued at November term, 1888, before Justices DEPUE, DIXON, and MAGIE.

Vredenburgh & Garretson, for the motion.

MAGIE, J. Three indictments against defendants, pending in the Hudson sessions, have been removed to this court by certiorari, and a motion to quash each one of them has been made. The motions present similar questions, and they were argued and have been considered together. The indictments are distinguished by the numbers 212, 213, and 214.

Indictment No. 212 contains two counts. The first of them avers that defendants were members of the board of public works of Jersey City, and that said board had cognizance and control of the sweeping and cleaning of the streets of said city, and lawful right to advertise for and receive bids and proposals and to contract for such work; and then charges that defendants unlawfully, willfully, corruptly, and with evil intent, awarded to and entered into a contract with one L. C. for sweeping and cleaning the streets of said city, without previously advertising or giving public notice for bids or proposals there for. By section 159 of the "Act to reorganize the local government of Jersey City," approved March 31, 1871, (Laws 1871, p. 1094,) it is enacted that no contract for work shall be entered into by or on account of any board of said city, except after due advertisement for six days, at least, in the official newspapers; and thereupon the contract shall be awarded to that responsible bidder who offers the terms most advantageous to the city. If the board of public works has been thereby forbidden to make a contract for cleaning streets without the required previous advertisements, the doing of the prohibited act willfully and with evil intent constitutes a criminal offense, and an indictment thus charging the members of the board engaged therein will be sufficient. State v. Startup, 39 N. J. Law, 423. The contention of defendants is that the cleaning of streets is not work requiring previous advertisement for proposals, under section 159. By section 38 of the act above referred to, the board of public works was given power to make contracts in regard to all matters under its control. By the third subdivision of section 39, that board was given cognizance and control of the "opening, extending, altering, regulating, grading, flagging, curbing, guttering, paving, repairing, cleaning, clearing, and lighting of streets." By section 55 it is provided that the repairing, clearing, and cleaning of streets and sewers, and the lighting of streets, shall be done under the direction of the board, by such person, at such time, and in such manner, and on such terms, as said board shall fix upon. It is argued that by the provisions of section 55 the cleaning of streets is work which is left to the discretion of the board, and a contract for which may be awarded without advertisement. In other sections, the act prescribes a variant mode of advertising for proposals for doing some of the work which that board was authorized to do by the third subdivision of section 39, as, for example, the grading and paving of streets. Where such provisions are repugnant to the requirements of section 159, the latter may not be applicable. Unless there is some necessary repugnancy between the provisions of section 55, in reference to the sort of work covered thereby, and those of section 159, there can be no ground for excluding such work from the provisions of the latter section. I find no such repugnancy. When the board has determined when and how often and in what manner streets are to be cleaned, and had advertised for proposals for such work on terms so fixed, then the acceptance of a proposal, and the award of a contract based thereon, will entirely satisfy the requirements of both sections. The work of cleaning streets, therefore, falls within the provisions of section 159, and the board was forbidden to enter into a contract there for, except after advertisement, in all cases affected by that section. This objection cannot avail defendants. No other objection was made to this indictment, and the result reached as to the first count renders it unnecessary to examine the other count. The motion to quash must be denied.

Indictment No, 214 contains a single count. After averring the official character of defendants as members of the board of public works, and the powers of that board, as in indictment No. 212, it charges that the board duly advertised for bids and proposals for cleaning the streets; that two persons bid and offered to do the work, of which persons A., who was a responsible bidder, offered terms and prices most advantageous to the city, but that defendants unlawfully, corruptly, and with evil intent omitted and neglected to award the contract to him, and unlawfully, willfully, corruptly, and with evil intent awarded the contract to the other bidder, whereby the city was obliged to pay $5,000 more for the work than would have been required if A's bid had been accepted. Defendants first object to this indictment upon the same ground on which the motion to quash indictment No. 212 was put. For the reason given in the decision of that motion, this objection cannot prevail. The only other objection to this indictment may be thus stated. The provisions of section 159, requiring advertisement before entering into contracts, are, by provisos, rendered inapplicable to cases when the amount does not exceed $500, or to repairs, when the safety or protection of public property or the public convenience requires such advertisement to be dispensed with. By section 53 of a supplement approved March 24, 1873, (Laws 1873, p. 400,) a further proviso was added to the effect that, if...