Waszen v. Atl. City

• Decision Date: 10 January 1949
• Docket Number: No. A-68.,A-68.
• Citation: 63 A.2d 255
• Parties: WASZEN et al. v. ATLANTIC CITY et al.
• Court: New Jersey Supreme Court

63 A.2d 255

WASZEN et al.

v.ATLANTIC CITY et al.

No. A-68.

Supreme Court of New Jersey.

Jan. 10, 1949.

Appeal from former Supreme Court.

Certiorari proceeding by Steve Waszen and Steve Waszen, Jr., copartners, trading as Steve Waszen & Son, and Alex Fischer, a taxpayer of the city of Atlantic City, New Jersey, against the city of Atlantic City, a municipal corporation, and Lawrence B. Haines, to review a resolution and award of a contract for removal and disposal of garbage of the city by the Board of Commissioners. From a judgment of the former Supreme Court dismissing the writ, 137 N.J.L. 535, 61 A.2d 85, prosecutors appeal.

Judgment reversed, and resolution awarding contract and contract set aside.

Joseph B. Perskie and Isaac Ginsburg, both of Atlantic City, for appellants.

Chaim H. Sandler, of Atlantic City (Daniel J. Dowling, of Atlantic City, on the brief), for respondent Atlantic City.

Stephen A. Damico, of Atlantic City, for respondent Haines.

OLIPHANT, Justice.

This is an appeal from a judgment of the former Supreme Court dismissing a writ of certiorari allowed to review a resolution and the award of a contract, made pursuant to that resolution, for the removal and disposal of the garbage of the City of Atlantic City, New Jersey, by the Board of Commissioners of that municipality.

The prosecutor-appellants below attacked the specifications in several important particulars but the old Supreme Court generally held that the alleged irregularities in the specifications were not of such a substantial nature as would operate to affect fair and competitive bidding and that in such minor details of complicated specifications the court ordinarily would not interfere with the discretion of the governing body and cited the cases of Schwitzer v. Board of Education, Sup.1910, 1910, 79 N.J.L. 342, 75 A. 447 and Phifer v. City of Bayonne, Sup.1929, 105 N.J.L. 524, 146 A. 463. With this view we are not entirely in accord and a careful consideration of the entire record leads us to a contrary conclusion.

The prosecutor-appellants, the Waszens, were unsuccessful bidders though they had submitted the low bid for the garbage removal contract. The other prosecutor-appellant, Fischer, is alleged to be a citizen and taxpayer of Atlantic City and no question has been raised with respect to his qualification as a party to this suit.

Admittedly the Waszens did not conform with certain of the specifications and the Board found that they were not responsible bidders within the meaning of the statutory requirements. R.S. 40:50-1, 40:66-4, N.J.S.A.

Since they were the unsuccessful bidders they therefore have no standing to challenge the award of the contract to a rival bidder or to attack allegedly illegal specifications. McGovern v. Inhabitants of City of Trenton, Sup.1897, 60 N.J.L. 402, 38 A. 636; International Motor Co. v. Mayor, and Cemmon Council of City of Plainfield, Sup.1921, 96 N.J.L. 364, 115 A. 391; Frank P. Farrell, Inc. v. Board of Education of Newark, Sup.1948, 137 N.J.L. 408, 60 A.2d 304. The rationale of such a holding is that one cannot endeavor to take advantage of a contract to be awarded under illegal specifications and then, when unsuccessful, seek to have the contract set aside. But Fischer was a citizen and taxpayer and as such he may attack the award and also raise the question of the illegality of the specifications. Schwitzer v. Board of Education, supra; McGovern v. Inhabitants of City of Trenton, supra; West Essex Bldg. & Loan Ass'n. v. Borough of Caldwell, Sup.1934, 112 N.J.L. 466, at page 468, 171 A. 671; Travis v. Borough of Highlands, Sup.1947, 136 N.J.L. 199, 201, 55 A.2d 109.

Atlantic City admittedly has a serious garbage disposal problem since the amount of garbage is subject to sharp fluctuation due to peaks and lows of its floating population. For some time there has been operated there what is tritely referred to as the farmer-collector system, whereunder the holder of the contract makes arrangements with a number of pig raising farmers to collect the garbage and to whose farms it is brought and disposed of. The contract holder distributes the collection routes to certain of these farmers, supervises the collection and disposition of the garbage and deals with all complaints with respect thereto. On his part he is required to have certain resources, equipment and personnel to take up any slack in the collection and disposal of the garbage. While it is true the city has had a bad experience with its garbage problem, nevertheless difficult situations of and by themselves do not always form the legal basis for an exception to controlling legal principles.

The city originally advertised for bids to be received for garbage collection disposal on a one year basis. Both the Waszens and Lawrence B. Haines, to whom the challenged contract has been awarded, submitted bids for the contract, that of the Waszens being the low bid. A hearing was held to determine the lowest responsible bidder and all bids were rejected. No reason was assigned by the city for this action but the record indicates that all parties agreed that a contract on a three year basis would be more advantageous to all concerned, including the city. It is important to note, in view of what will now be said, that a full hearing was held on the bids submitted under the original specifications.

When proposals were called for and advertised a short time later on a three year basis it appeared for the first time that several changes had been made in the specifications. (1) The number of trucks required to be owned outright by the bidding contractor were increased from six to twelve; (2) the bidder was required to be a freeholder in Atlantic County; (3) the farmer-collectors were required to have had experience in the collection of garbage in Atlantic City within the last five years; (4) the bidder was required to show a satisfactory past performance of a garbage contract, preferably a municipal contract; (5) the bidder was required to produce proof of the proper licensing of the trucks owned by him under the law of this state and evidence that these trucks were insured for public liability and property damage in designated amounts; and (6) the contractor was required to submit proof with the bid that he had an office in Atlantic County, when heretofore he was only required to establish such an office after the contract was awarded.

Haines' successful bid was in the amount of $45,000, that of the Waszens was $31,200. The Waszens deliberately failed to comply with one of the specifications, No. 30, and did not and could not meet the requirements of several others, yet a hearing was held and the contract awarded to Haines who had held the previous contract for city garbage collection which expired December 27, 1946, and had thereafter been doing the work as a ‘temporary employee’ under an arrangement which apparently had the approval of the Civil Service Commission. Admittedly he did the best job in the history of the city's garbage collection. It was evidently anxious to retain his services. To attain that objective it exceeded legal bounds.

Before discussing the various specifications, for the purposes of clarity it may help to state that garbage generally is defined under the contract to mean ‘all refuse and waste of animal, fish and vegetable matter which has been used for food and all such refuse animal and vegetable matter which was intended to be so used’ and it was not to be mixed with oyster and claim shells, waste paper, cans or other similar refuse. In short, the contract is so designed that the garbage is edible and usable by and in the raising of swine with the exception of fish waste which will be mentioned hereafter and which is dealt with in a particular specification.

The major attack of the appellants is directed to specification No. 30. This required that there be attached to the bid a list of at least twenty-five Atlantic County farmers, signed by each one, together with an affidavit that each owned a farm of ten acres on which there is not less than 50 nor more than 1000 swine, and the contractor agrees to distribute the garbage to them as provided in the specification and to such others as the Mayor from time to time in writing approves. There is nothing in this specification which specifically calls for such farmers to collect the garbage but such apparently is the contemplated scheme.

The record indicates there are at the most about 35 or 37 farmers who could meet the requirements as to ownership and operation of the type of farms specified. The specification in requiring that 25 farmers must be signed up and listed with the bid removed the actual control of the award of the contract from the municipal authorities and...