The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-01-23
RESPONDENTS ApsI1TTANcE.

prosecutors insist that the action of the re-
spondents in paying out the said sum OF
81, ,250.S0, at the times and in the amounts
specified, was for the purpose of evadlng the
provisions of Section 159, and in pursuance
of a corrupt understanding or arrangement
for the mutual advantage of the Commls-
sioners and a favored contractor. The
prosecutors contend that Section l59 is to be
construed as though it read, that no Work
shall be done or purchase OF material made,
involving an expenditure exceeding $780, ex-
cept after advertisements inviting proposals
| therefor and contract thereupon awarded to
| that responsible bidder who offers the terms
| most advantageous to the city"
If such construction of the law be correct
| then its willful evasion in instances as above
might be accepted as official misconduct ON
| the part of the Commissioners, and afford
good cause for their removal from office.
| But apart from the inference to be drawn
| from such construction of the statute, there
| is no allegation OF proof that the payments
| in question were corruptly or improperly
made, or that the city did not receive Iull
benefit therefor.
| Your first conclusion is as follows:-''Ihe
| money spent for tagging at Belleville should
| have been done by contract, and have pre-
viously vetoed the payment OF these bills;
and think the manner in which this work
was done was a sufficient cause Tor re-
| movaln
This conclusion resolves itself into three
parts
| SHOULD HAVE BEEN DONE BY CONTRACT.
| A. 'sIhe money spent for tagging at Belle
| vile should have been done by contract"
| This seems to adopt, as legal conclusion,
| the construction of Section 159 above men,
toned las contended for by the Prosecutors.
| l regard the correctness of such construc-
| ton as extremely doubtful. am not pre-
| pared to adopt it; especially not, for the pur-
pose of attaching thereto the penalty of re-
l moval from office, when, assuming the
| statute to have been violated it does not
| appear that the respondents are guilty OF
| more than a misapprehens1on or mlscOn-
| struction of its terms. For the Bellevllle
| tagging no advertisement for proposals was
made and no contract was awarded. In the
case of the State VS.. Kern % Vroom 266, de-
| cided in 1885, the Supreme Court heidi
'sThe Indictment charges that defendants
unlawfully, wilfully, corruptly and with evil
| intent, paid or caused to be paid to w. h. o.
| for and on account of the sweeping and
| cleaning of streets in Jersey City, the sum of
| S12,7S of the money of the city, without
| having previously advertised or given notice
| for bids or proposals for such work.
| 1t will be observed that this indictment ad-
| mits that W. R. c. had done the work for
| which the board could have contracted with
| that the work admittedly done was not
worth the sum paid
'sThe offense charged as criminal is the
mere payment of public money for work ac-
| tually done for the public, without having
previously advertised for proposals for such
| work. But it is quite obvious that the act
| thus charged to have been done is no breach
4 of official duty unless some statute has pre-
scribed rule of duty which has been vio-
| lated in doing it as charged
s'As has been seen the charter of Jersey
| City by Section 159, prohibits the award of a
| contract for such work without previous ad-
| vertisement for proposals and the w1lful dis
| obedience of that prohibition constitutes a
| criminal offense. But there is no prohibition
| of the payment of money for such work ac-
i tually done for the city, when there is no
previous advertisement for proposals. This
/ charge, therefore, shows no wilful dlsobedl-
| ence of any prescribed rule of the charter"
This language of the Court seems to me at
1 entire variance with the construction OF Sec
| tion 159, contended for by the Prosecutors
THE MAYORS VETO.
B. ~ the Mayor have previously vetoed
the payment of these bills"
| The grounds of such vetoes are not stated
| in the conclusion nor disclosed by the testl-
| mony taken. The mere fact that a veto was
| interposed and legally overridden does not,
| in my Judgment, afford good cause" for re-
moval.
MANNER IN WHICH WORK WAS DONE.
| C. 81 (the Mayor think the manner in
which this work was done was sufflclent
cause for removal"
| IF. by the word manner, it is intended
that Section 159 required the work to be done
by contract, I have already indicated my
dissent therefrom. If, on the contrary, it is
a mere expression of opinion, without refer
ence to Section 159 that by contract would
have been the preferable mode. then it was
simply matter of Judgment resting in the
discretion of the commissioners under Sec
tion one Chapter 134 of the Laws of 1891
wherein it is provided sThat the said Board
of Street and Water Commissioners of such
CITY shall have full power, in addition to al
other powers granted by law, in their dis
cretion. in the corporate name and on behalf
of such city, of making contracts and en-
gagements, all of which shall be binding or
| such CITY, in reference to any purpose what
ever connected with the exercise of the
| authority. powers and duties by this act CON
ferred, or contemplated to be conferred, OF
said board"
lit be meant that the work was improp-
| erly or negligently done, | have carefully
| read and reread the 1872 pages of testimony
! and find no evidence that the manner in
\ which the work was done, was careless, ex-
| travagant or in any way preJudicial to the
, | city.
am unable to approve of the first con
clusion assigned as sufficient cause for re
moval.
MAYOR wANsER's SECOND CONCLUSION.
Your second conclusion relates to the pay
ment of the sum of SO, $3.50, in nine install
! ments ssto P. J. Condor. for 'excavatinE
School No. 25 site'n ~ specified in charge No
, | of Frank o. Cole and others. The pay
: ments cover period of time extending from
January II, 1892, to April q, 1892, and were
{ made from license funds under Section 20
Chapter 1877. Laws of 1889. There was NJ
! advertisement for proposals for the excavat
ing and no contract, written or otherwise
, for the work as an entirety.
Your conclusion is as follows
stThe money spent on the excavation o
Public School No. 25 was license monte
{ 1aw of 1889, Sec 20, page 203) but notwith
| standing their source of income, the worl
should have been done by contract: the earti
on the school house site was over thirteer
feet above grade, and this was a notice O
, the large amount of work in sight, and ther
was ample time to have proceeded by con
tract and received the benefit of competi
: tion.
And think the manner In which thi
work was done sufficient cause for removal
J Respecting those payments, the conten
+ ton of the prosecutors was the same as mad
: concerning the tagging at Belleville, an
| and your conclusions IN both instances ar
evidently based upon the same view of tn
law and evidence
. There was no PROOF made or attempted o.
) the prosecutors that the excavating was don
| in OF, improper manner or that it would hav
: cost less If thrown open to competition. O
) | the other hand, there is proof tending t
{ | show that it could not have been done NOR
t | cheaDly if opened to competition.
Ill The same considerations that induced m
f7sco ,,1,,.fva1 nf tho f1st conclusion cOnstrai