57 N.J.L. 588 | N.J. | 1895
The opinipn of the court was delivered by
This writ brings up for review the proceedings and resolutions passed by the board of township committee of the township of Kearney, in the county of Hudson, on the 14th day of August, 1894, whereby a contract was awarded to one George F. Woolston for lighting the streets of said township of Kearney for a term of five years, with electric arc lights. .
The board of township committee, on the 12th day of June, 1894, by resolution directed the clerk to advertise for a contract for street electric lighting for a term of five years, and that bids would be received by the board on July 10th, 1894. Bids were then received from three bidders, including bids by Schefbauer and Woolston. These bids were opened on July 10th, 1894, and referred to the lighting committee of the board. On August 14th, 1894, the committee on lighting reported, recommending the award of the contract to Woolston, and on August 28th, 1894, by resolution, the board so awarded the contract.
The prosecutors, before the contract was executed, sued out this writ of certiorari to review the proceedings and the award of the contract.
The question of the extent of the power of townships generally over this matter, and the power of the board in this township, must be first discussed and determined.
The township of Kearney was incorporated by an act of the legislature entitled “An act to set off from the' township of Harrison, in the county of Hudson, a new township, to be called the township of Kearney,” approved March 14th, 1867. Pamph. L., p. 253. This act, by its express provisions, conferred upon the inhabitants all the rights, powers, privileges and advantages to which the inhabitants of the other townships in the state were entitled or subject by the laws of this state. ■ ■ ■
By the general law, entitled “An act incorporating the inhabitants of townships, designating their .powers and regu
By the eleventh section of this act the persons qualified to vote at town meetings were empowered at their annual meeting, or at any other meeting duly held for the purpose, to vote, grant and raise such sum or sums of money for the maintenance and support of the poor, the building and repairing of pounds, the opening, making, working and repairing of roads and keeping them in order, * * * and prosecuting or defending the common rights of such township, and for other necessary charges and legal objects and purposes thereof, as are or shall be, by law, expressly vested in the inhabitants of the several townships of this state by this or some other act of the legislature.
By the twelfth section of this act the township committees were authorized to superintend the expenditure of any moneys raised by-tax for the use of the township.
■ It will be observed that the power to repair roads and keep them in order was one of the principal objects of the incorporation of townships, and it would seem quite conclusive that the power to light the roads, wherever in the-township it became necessary for public safety or convenience, could be exercised whenever the voters of the township, through the forms of law, chose to grant and raise money for that purpose, to be expended under the superintendence of the township committee, and that the township committees were the municipal authorities authorized to act in such matters after such grant of money had been made for the purpose. The power to repair and keep in order roads would certainly, by necessary implication, confer the power to light a road, or portion of it, when necessary, and it is • a power which has been exercised by township committees to a certain extent ever since the creation of such political subdivisions as town
Under the eleventh section of the General Township act, it is concluded that whenever it became necessary for public safety or convenience to light any road, street or part or parts thereof, in a township, it was within the power of the voters to grant aud raise by tax a sum of money sufficient for that purpose, as one of the legal objects of incorporation, to be expended under the superintendence of the township committee, who were the legal body authorized to act in the matter. I think the power falls within the reasonable interpretation of the General Township law, and within the principles established by the few cases in this state in which the powers of incorporated townships and their township committees have been discussed.
The power of lighting roads within the townships is not conferred upon any other corporate body exercising municipal authority within the township, and by a fair, reasonable and necessary implication it arises out of the very nature of the objects and purposes of the township governments as provided by the general laws. The power must be exercised by the
The township powers to be exercised, like those of any other public municipal corporation, are those granted in express words, those necessarily or fairly implied in, or incident to, the powers expressly granted, and those essential to the declared objects and purposes of the corporation. 1 Dill. Mun. Corp. (4th ed.), § 89, and cases cited. For powers of townships and township committees, see Bradley v. Hammonton, 9 Vroom 430; Atlantic City Water Works v. Smith, 18 Id. 473. The township committee, when indictable for not keeping highways in good order and repair, can file a bill in their own name to restrain shutting up such highways or rendering them impassable. Inhabitants of Greenwich v. E. & A. R. R. Co., 9 C. E. Gr. 217; S. C., 10 Id. 565. The appropriation or grant of money by the voters must, of course, precede or be in advance of the obligation or the expenditure, unless otherwise provided by law. Township of Wayne v. Cahill, 20 Vroom 144; 26 Am. & Eng. Encycl. L., p. 98, tit. “Towns and Townships;” Rulon v. Woolwich, 26 Vroom 489.
The power of the township committee to act would depend upon whether the voters of the township had voted any sum or sums of money as an annual expenditure for such an object or purpose. When this condition was complied with, or otherwise provided for, then the township committee was the municipal body authorized to act in the matter of the superintendence of the expenditure called for.
By the provisions of “An act for the improvement of the township of Kearney, in the county of Hudson, and to increase the powers of the township committee in said township,” approved April 4th, 1871 (JPamph. L.,p. 1371), other
One of the first objections made to the awarding of this contract for electric are lighting is, and the insistment is strenuously made, that there is not vested in the board of township committee of the township of Kearney any right by virtue of any legislative authority to act at all in the matter of the lighting of. streets in such township.
I think, by the references already made, and a review of the powers and privileges conferred upon the incorporated townships under the general law, by the title of the inhabitants thereof, and upon the township committees thereof, it is clearly demonstrated that whenever and wherever it be necessary for the public good, and public needs require the lighting of the streets and roads, the power can be exercised under these general laws, and that the township, committee is'the municipal authority with power to act in the premises.
But even if this contention be not good, still it is difficult to perceive how the power can be denied to this board under the provisions of the act of 1871. Under this act of 1871 ample power is given to lay out and improve streets, to regulate the use of the same, remove obstructions therefrom, lay out sidewalks thereon, and to do and perform every other act
It may, therefoi’e, be concluded that there was vested in the board of township committee of the township of Kearney power to light the streets within the township limits, and to provide ordinary, reasonable and ample appliances for such lighting. And there can be no dispute in this matter but that the board here referred to was the board, and the only board, authorized to act in such matters from time to time, by ordinance, resolution, contract or agreement, in accordance with the .provisions of the township charter.
By an act of the legislature entitled “An act authorizing the lighting of public streets and places in the cities, towns, townships, boroughs and villages of the state,” passed June 1st, 1886 {Pamph. L., p. 389.), the common council, township committee or other municipal authorities of any city, town, township, borough or village in this state were authorized from time to time, by ordinance or resolution, to order and
It is hardly necessary to say anything in relation to this act, except to refer to the fact that it applies to all cities, towns, townships, boroughs and villages, and confers the power upon the different municipal authorities in each of these subdivisions to act in such matters; and to add that in townships the power is conferred upon township committees, by contract or otherwise, to light the streets with gas or otherwise. This act necessarily limits the exercise of this power Within the annual appropriation for such expenditure, and gives no power to contract for more than a period of one year, but the appropriation for such purpose need not precede the contract for such lighting.
By a supplement to the general act of incorporation of townships, approved April 14th, 1846, which supplement was approved May 17th, 1894 (Pamph. L.,p. 434), the township committee or board of commissioners within any township of this state, having authority to procure and supply lights for lighting the public streets, were empowered to make a contract with any person or corporation for the supplying of such lights for a year or term of years, which contract when so made shall be lawful and valid, and the moneys payable under said contract in each year shall be levied and raised by taxation in the annual tax levies of such year, provided that no such contract shall be made for a longer period than five years.
By an act entitled “An act authorizing the lighting of public streets and places in the cities, towns, townships, boroughs and villages of this state, and to erect and maintain the proper appliances,” approved May 22d, 1894 [Pamph. L., p. 477), power was conferred upon the common council, township committee or other municipal authorities of any city,
All these statutes are referred to in order to show the course of legislation on this subject of lighting streets and public places in townships.
Neither under the general law applicable to townships, nor under the charter of the township of Kearney, passed in the year 1871, could there exist in the board of township committee of the township of Kearney any power whatever to make any contract in relation to the lighting of the streets and public places of the township for more than a period of' one year. Neither of these acts would enable the municipality to enter into any contract for the lighting of streets for a longer period than they possess the right to make an appropriation or the expenses thereof, to be included within the tax levy, and under the general' law applicable to townships, and the charter of 1871, the board of township committee could not raise, grant or appropriate any money, or include any greater sum in the tax levy than was necessary for the municipal or township purposes for the current year, and while the power was conferred upon them to provide the appliances for the same and cause the streets to be lighted, yet no contracts whatever could be made for any period longer than one year.
This has been the contention of the prosecutors, and it may,
Thus, the board of township committee of the township has, by these statutes, authority to act in the matter of lighting the streets of the township; and a mere reference to the statutes of May 17th, 1894, and the statute of May 22d, 1894, disposes at once of the objection that no power existed in the board to enter into a contract for such lighting for the term of five years.
Upon this subject both these statutes expressly confer this power upon the board of township committee, and the only argument advanced against the exercise of the power is that the expense is to be estimated and raised by taxation annually. But this is no answer to the express terms of, and the express
In the examination of the return to this writ, it appears that the board of township committee of the township of Kearney conformed to the formal directions of the statute in their proceedings and award of the contract to Woolston for the lighting the streets of the township with electric lights. The resolutions of the board to light the streets of the township with electric lights were in accordance with the statute. Proposals were advertised for, in accordance with these resolutions, for the lighting of the streets of the township for five years with electric arc lights, and in accordance therewith. At the time appointed, proposals and communication's were received from three parties, representing the different systems of electric arc lighting. These were opened in a public manner, on July 10th, 1894, the time appointed, and referred to the lighting committee of the board. After much examination of the question, and after all the parties were heard upon the subject — notably the prosecutor in this case, who Avas a bidder for the contract — on August 14th, 1894, the lighting committee reported to the full board, recommending that the contract be awarded to Woolston, and on: August 28th, 1894, formal resolutions to that effect' were passed.
The objection of the prosecutors to the action of the town
If there bé a dispute upon the facts in the case as to the question who was the lowest bidder, the determination of the board, made in good faith, would be upheld if there were any
But a careful examination of this evidence does not reveal that Woolston was not the lowest bidder, and if that is a reason for setting aside the proceedings it ought clearly to appear. It will be observed that the advertisement for proposals was for bidders to estimate separately on lights for this electric arc lighting of twelve hundred and two thousand-candle power, and on from eighty to one hundred and twenty-five lights required. The bids of the Excelsior Electric Company and.the bid of Woolston were in accordance with the advertisement. The bid .of the Excelsior Electric Company clearly appeared to be much higher than that of Wools-ton, and, therefore, was not considered. The bid of the prosecutor Schef bauer was clearly not in accordance with the advertisement. He .bid two and one-half cents per light of two thousand-candle power per hour, or $100 per year, and two cents per light of twelve hundred-candle power per hour, or $80 per year, and this estimate was based, as he expressly stated in the proposal, upon four thousand hours of light per year. Wools ton’s bid was “for full 2,000-candle power lights, twenty-nine and one-half cents per light per night.” * * * “For full 1,200-candle power lights, twenty-seven cents per light per night.”
Upon these bids of Woolston and Schefbauer there ensued an examination, and evidence of experts and others as to which would be the cheapest for the township to contract with, was laid before the township committee. It has been observed that Schefbauer’s bid was indefinite, and there has been an endeavor to show by calculation that his system would be cheaper for use than that of Woolston, and from that point the evidence drifted into a discussion of experts and others upon the respective merits of the different systems of electric arc lighting. The merits of the direct current
The proceedings here brought up for review rested in the honest judgment and discretion of the board, based upon a rational basis of fact before them, and the questions of advantage to the municipality and of expediency were for them to determine.
The proceedings and award of the. contract will be affirmed, with costs against the prosecutors.