The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1893-12-23
Asphalt Action Of the Street
and Water Board Cen
trary to The Charter.
ALLAN M'DERMoTT's CERTIORARI.
Full Text of the Decision Of Judge
Albeit Filed in Trenton
Today,

certiorari proceedings brought by Allan
L. McDermott to review the proceedings of
the Street and Water Board awarding
contracts to the Barber Asphalt Pavement
Company and Trinidad Asphalt Paving
Company. The Court decided that both
contracts are null and void. The full text of
Judge Abbett's decision is as follows:-
THE DECISION.
The certiorari in this case removed into
this court for review, certain resolutions and
proceedings awarding contracts for asphalt
paving in Jersey City, under proposals
Commissioners. The board advertised
for bids for laying asphalt pavement,
to be paid for out of the license money
collected by the city, as provided in sec
tions and of chapter 134 of the laws of
1891 IL. 1891 p. 259, and further provided
for in chapter SO of the laws of 1898 IL, 1898,
p l64. Bids were received therefor from
the Trinidad Asphalt Company and the Bar
her Asphalt Company. The work would
cost So, 92O under the bid OF the Trinidad As
phalt Company, and Sal ,9S2 under the bid of
the Barber Asphalt Co. The board did not
award the contract to either. They divided
it. giving paving to the highest bidder
amounting to 49,, sos, and giving the lowest
bidder paving amounting to S13,S7S. The
preamble to the resolution awarding portions
of the work to each company, declares ''that
the samples of asphalt submitted are above
the standard requirements, and this board
has examined into the financial standing
of both bidders and finds them responsible
and as the prices bid, covering guarantee
of ten years, are advantageous to the city,
and as the cost of preparation in establish
ing plant to prepare the asphalt for street
laying Is between twelve and twenty thous-
and dollars, it is advisable to make the con-
tracts of sufficient size as to amount of work
to justify the erection of a plant
and as the laying of as
phalt pavement has not been heretofore at
tempted in this city, and as the money to
pay for the work on which bids were re-
ceived is payable out of the excise moneys
and not by assessment, and this board be-
leving it to be the best interest of the city
to divide the work between the
bidders, with view of comparison
of their work, inaslnuch as the Barber
Asphalt Paving Company has had the
greater experience in laying the pavement
and the Trinidad Asphalt Paving Company
has had the greater experience in refining
the product as we are informed therefore,
resolved etc The resolution was presented
to the acting Mayor on August 10, 1898,
and became operative within ten days there
after under section of the supplement to
the city charter, approved March "a,
ISIS IL 1873. page 400, he not
having vetoed the same He did not form
ally approve the same, but in a communica
to the board dated August %, 1898, after
giving his views, stated II have decided to
let the resolution stand.
PAYMENT FOR THE WORK.
Our opinion is that under the city char
ter that this inlprovent was one that
was to be borne by the city at large
and paid by general tax and that the proposed
work cannot be paid for by assessment for
benefits Under the fifth section of said act
of 1891, the board has power in their dis
erection to pave repair or improve, at
public expense, any part of any street, lane,
alley, avenue, or public place already
paved, or that has been paved, to be paid
for out OF the funds raised by the issue of
licenses for the sale of spirituous or malt
liquors heretofore appropriated under ex-
lstlng laws for that purpose in such city,
or winch may hereafter be appropriated for
that purpose to any such city under the au-
thority conferred by this act
There is a contention in this case as to
whether or not the sections of the charter of
1871. under the title "Board of Public
Works" !" which require the contract for paw
ing be awarded ''to the lowest responsible
bidder" or section 159 of the charter under
the heading of Finance" is applicable to
this case, or whether the provisions of the
latter section modify or affect the former
provision, or the proper construction
thereof. Section 159 provides that
no contract for work or materials shall be
entered into, or purchase or personal prop
erty be made by or on account of any board
or department of the city government, ex-
cept after due advertisement, for six days at
least, in the official newspapers; whereupon
the contract shall be awarded to- or the pur-
chase shall be made of, that responsible bid
der who offers the terms most advantageous
to the city, etc.
THE BOARD DID WRONG.
In deciding this case, it is not necessary to
determine which of these provisions are ap-
phcable; or whether there is any legal diff
ference between the 'lowest responsible bid
DER and that responsible bidder who offers
the terms most advantageous to the city," or
whether the board is determining who is
Irresponsible bidder" is limited to
the question Of financial response
bility. or may broaden its field of
inquiry and exclude bidder whose conduct
in other public work, or other actions, would
render it unwise to trust him to carry out
the contract he might make.
The board did not act under either of
the provisions quoted. It did not award
the contract to either the lowest responsible
bidder, or to that bidder who offered the
the terms most advantageous to the city.
1t awarded part of the work to the highest
bidder, and part to the lowest bidder The
the duty imposed upon the board by the
charter, was to determine which of these
bidders on this work came within the words
of the charter. They were both financially
responsible; they both submitted samples of
asphalt, which were above the stand
ard requirements, and were both
treated as bidders who, in good faith could
perform their contracts to the best of their
ability. the only difference between the two
being that the highest bidder had the greater
experience in laying the pavement, and the
lowest bidder had the greatest experience in
refining the product. 1t was to one of these
that the charter required the board toaward
the contract. The board seeks to excuse their
failure to award the whole Of the work to
either upon the grounds that they believed
it to be for the best interests of the city
to divide the work between them,
with a view of comparing their
work The answer to this action is
that no such power is conferred upon this
board Its power is limited to awarding the
contract to one of the bidders, and it
failed to perform that duty when 1t divided
the work unequally according. to its dis
erection between the highest and the lowest
bidders. The charter having limited the
power of the board, as to the bidder to whom
the contract should be awarded, and as to
his qualifications, any departure therefrom
is illegal Cory V. FreeholdeIs of Somerset.
Is Vroom 40
NO RIGHT TO DIVIDE THE WORK.
The board had no right to consider any re-
quirements not set forth III the statute or in
the specifications Shaw " Trenton, 20
Vroom 343. If the board could not deter
mine which Of the two was the, lowest
responsible bidder, or which was that
responsible bidder that offered the