Thomas Harrington's Sons Co. v. Mayor of Jersey City

78 N.J.L. 610 | N.J. | 1910

The opinion of the court was delivered by

Garrison, J.

We think that the court below reached an erroneous conclusion when it determined that the municipal action before it, was to be tested by the provisions of the Jersey City charter of 1871 and not by those of the General Garbage act of 1902. The initial error was in the interpretation of the general act of 1902 that denied its application to a contract for one year. The language of that act is as follows: "It shall and may be lawful for the common council, board of aldermen or other governing body having charge of the streets of any city of this state, to enter into and make a contract or contracts, not exceeding the term of five years at a time, with any corporation or individual for the collection or removal of ashes and the collection, removal and disposal of garbage, and it shall be the duty of such common council, board of aldermen or other governing body of such city, during the continuance of such contract or contracts, to annually raise, by taxation, the sum needed to defray the expenses of such collection and removal of ashes and such collection, removal and disposal of garbage for the fiscal year then next ensuing provided such contract or contracts shall be entered into and made only after bids therefor shall have been advertised for in one or more newspapers published or circulating in said city for at least two weeks prior thereto, and then only with the lowest responsible bidder or bidders who shall give satisfactory bonds or security for the faithful performance of the work.”

There is nothing in this language to support the contention that a contract for one year is not within its purview. The limitation is that the contract shall not exceed five years. This includes a contract for one year as completely as it does one for five years. The circumstance that some of its provisions are for contracts of more than one year does not nullify the expressed scope of the act.

In Faist v. Hoboken, 43 Vroom 361, in which the Supreme Court held that this act applied, and in Townsend v. Atlantic City, Id. 474, in which this court said that it applied, the contracts in each case were for one year.

If the Garbage act of 1902 applies to all contracts for a period not exceeding five years, it, by implication, repeals or is substituted for the charter provision of Jersey City upon the saino subject upon the familiar doctrine that when the legislature frames a new and general rule covering an entire subject-matter all earlier and different rules touching the sanie matter are to be discarded in favor of such later rule. Industrial School District v. Whitehead, 2 Beas. 290; Bracken v. Smith, 12 Stew. Eq. 169 ; DeGinther v. New Jersey Home, 29 Vroom 351; Smith v. Hightstown, 42 Id. 536.

The charter of Atlantic City that was considered by this court in the Townsend case was passed on April 3d, 1902, i. e., after the passage of the Garbage act of March 27th, 1902, hence had the charter provided for the making of contracts it might have superseded the earlier act. Inasmuch, however, as it did not so provide there was no inconsistence as was pointed out by Mr. Justice Dixon in that case. The prosecutor's right, therefore, to be awarded the contract ought not to have been tested by the one hundred and fifty-ninth section of the charter of Jersey City, viz., whether he had “offered the terms most advantageous to the city,” but by the act of 1902, viz., whether he was in fact the lowest responsible bidder and could give a satisfactory bond. Justice Swayze, in his opinion, recognized and admitted that under the act of 1902 the plaintiff in error should have been heard before his bid was rejected. In this he was clearly correct. Faist v. Hoboken, supra.

He also found, as a fact, that no such hearing was given to the rejected bidder. There was proof to support this finding, hence it is not only conclusive upon us, but also is conclusive of the case, as the court below recognized, if the act of 1902 was to govern.

The judgment of the Supreme Court is reversed and the award to Byrne set aside.

For affirmance — None.

For reversal — The Chief Justice, Garrison, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon, JJ. 14.