35 N.J.L. 396 | N.J. | 1872
If the mayor refused to sign a contract made in pursuance of the charter and ordinances of the city, the relator is entitled to the writ of mandamus.
Chief Justice Parker, in the case of Waldron v. Lee, 5 Pick. 328, says that there is a discretion in the court when applied to for the compulsory process of mandamus, to withhold or grant it, according to the justice of the case, and that if it should manifestly appear that a tax was illegally granted or assessed, so that the officer required to collect it would have no authority, or the persons taxed would have a right to restitution by action, without doubt the court would with
The true rule applicable to this case I think is, that the relator must clearly show not only that the defendant is bound, in the discharge of his official duty, to do the act in question, but that the relator’s right to have it done is such as the law ought, at relator’s suit, to enforce. 2 Johns. Cases, (Shepherd’s ed.) 217; 4 Tapping on Mand. 27; 1 Cow. 512; 4 Hill 581.
If the contract, which the relator desires to compel the mayor to sign, has been made in violation of the city charter or ordinances, the writ should not be allowed. It, therefore, becomes necessary to inquire whether the contract in question is one which the law will uphold. We think it is not, for the following reasons:
First. No plans or specifications of the proposed improvement were ever filed in the street commissioner’s office, as required by tiie city ordinances. By section five of the ordinance, on page 202 of Book of City Ordinances, it is required that the advertisement for proposals for grading, graveling, and paving streets shall specify, in general terms, the nature of the work or improvement for which proposals are to be received, and shall request contractors and other persons
Second. The relator’s contract is as well for doing the work necessary to lay the pavement as to keep it in repair for five years, whereas by the city charter the city has the power only to order a street or section of a street to be paved at the expense of the owners of lands on the line thereof. The cost of keeping a paved street in repair is to be paid out of the city treasury. It is justly inferable from the papers before us, that the expenses of keeping this pavement in repair for the term of five years are included in the price to be paid to the relator for the work. If so, they will be assessed, together with the original cost of the work, on the land-owners on the
There was much discussion on the argument, whether the ordinance and petition therefor, being simply for wood-block pavement, were, under the act of 1871, (Laws of 1871, p.
Let the rule be discharged, with costs.
Justices Bedle and Scudder concurred.
Cited in Hugg v. Camden, 10 Vr. 624.