56 N.J.L. 268 | N.J. | 1893
An ordinance was passed “To improve West’ Sixth street from Avenue A extending to Avenue D.” It was approved January 4th, 1893. It provided for “ macadam' pavement nine inches in depth, properly and thoroughly rolled and compacted.” Upon advertisement sealed proposals were received April 4th, 1893, for said work. The bids for .the-work varied from $16,509.40 to $14,600. The commissioners of assessment’s estimate was $13,983.73. Martin Murray was the lowest bidder. On April 18th, the committee of the-whole reported to the council that “Mr. Murray being the lowest bidder, the committee find the amount of his bid to-exceed the estimated cost, as shown by the commissioners of assessment’s preliminary map, about $1,500, and since complaint has been made by property-owners against having the • work proceed at present prices bid for the same, they recom- ■ mend that the city clerk readvertise for bids for the work, to • be received at the next regular meeting.” The report of the • committee was adopted by a vote of five to three. This action of the council was presented to the mayor, April 21st, 1893,. who, on April 29th, vetoed the same, which veto was presented to the council at its meeting May 2d. William C. Earr was the mayor for the term preceding April 24th, 1893,. and was re-elected and qualified April 24th, 1893. The mayor’s term is for two years, and commences on the last Monday of April, so that Mr. Farr was mayor during all the • periods in question, either under his first or second term of office. A charter election is held annually, on the second Tuesday in April (Charter, § 5), when one councilman from/ each ward is elected (being one-half of the whole number) for a term of two years.
The veto of the mayor was referred to the committee on water, streets and drainage, who gave the parties interested a hearing, and thereafter recommended that the contract be awarded to Martin Murray, the lowest regular bidder. This-report was received and adopted by the council May 16th,,
The reasons in certiorari raise the question as to the right of the mayor to act upon this resolution at all, either before -or after April 24th, and. the right of the council which was in existence May 16th to award a contract upon the lowest-bid after their predecessors in office had ordered the work to be readvertised for bids. They also claim that the plans and specifications upon which the bid was based, which it is proposed to incorporate into a contract, are not in accordance with the petition for the improvement or with the ordinance, and that the resolution is an unreasonable exercise of the board’s discretion and an abuse of its authority.
The city, under its charter, was vested with power to pass the ordinance for the improvement of this street and to award the contract for the work to Murray, the lowest dona fide bidder. The question whether the city council had exhausted its power on April 18th, when it directed a readvertisement for bids, depends upon the effect of that action and whether the power to act in reference to this improvement was a continuous one or expired every year with the old council. The power to grade and improve streets, like other legislative powers, is a continuing one unless the contrary be indicated. 2 Dill. Mun. Corp., § 686, ch. XVIII., and cases cited. If the action of the council,' April 18th, was subject to the veto of the mayor, it had no validity whatever until presented to him and approved by him, or had been left in his hands ten days, and passed over his veto by a two-thirds vote of the council. The charter provides that it does not “take effect as a law ” unless he approves it or it is thus passed over his veto. Whether it was a resolution that should go to him depends upon whether it was a resolution affecting the interest of the -city. It is clearly such because the readvertising involved the expenditure of money by the city, and further, the wisdom of such action in this case depended upon the judgment of the council, subject to the review thereof by the mayor. If an honest bidder for a price that is not so unreasonable as
There can be no serious contention that, every time there is an annual charter election in the city of Bayonne, wherein one-half of the council go out of office and their successors are elected, all prior proceedings end and must be again commenced. The city council is a continuous body, and as to street improvements, the new city council can take up the proceedings where they were left by the old council and proceed to carry out the provisions of the charter in reference thereto. The legal condition of this street improvement on April 24th was that bids had been made for the work, and the resolution in reference to readvertising was in the hands
The objection that the plans and specifications on which the bid was made are not up to the standard of the petition and ordinance is not supported by the facts of this case. The only objection urged was in reference to the depth of the macadam. The petition calls for macadam nine inches in depth, properly and thoroughly rolled and compacted. The ordinance calls for exactly the same thing. In the official papers the notice to contractors was published, stating that sealed proposals would be received for the improvement of this street, and it was therein stated that this improvement consisted of grading, flagging, sewering and laying macadam pavement in said street. Murray bid for “ macadam pavement.” Cornelius Yreeland, a civil engineer of Bayonne, testifies as an expert, that the plans and specifications call for a portion of the street to be macadamized for a width of eighteen feet and a depth of nine inches, different sizes of stone. On being asked how he made up the nine inches, after stating that the first course of stone was to be five inches, he Says: “ On page 26 [of the specifications], under head of second course, to be spread evenly over the surface of the roadway to a depth necessary to bring it to the true grade and course, as shown in the plan.” And he further testifies, as such expert, that the plan will show what the depth of the macadam will be under that specification. The plan, by scaling, shows this nine inches. Murray, under these circumstances, would be compelled to lay nine inches of macadam, as his bid was to do the work called for by the
I find nothing in the reasons and the record and testimony to warrant the setting aside of the award of the contract to the lowest bidder.
The prosecutors’ suit should be dismissed, with costs.