The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1896-07-07
THAT ASPHALT CONTRACT.
COUNSEL ELY DE-
CLAREs THE CONrRACTILLEGAL.

4
Board of Public Works Sends n Lengthy
Communication to the Board of Alder
men-Power Derived From the City,s
Charter-Not Agents of the Court of Com
mon Council-Resolution Passed AnnulI-
ing the Contract-Foundation for Band
stand.
Permanent pavements came in for a
large share of the attention of the
members of the board Of aldermen last
evening. Two communications which
have been known to be completed for
several days and the purport of which
has been tacitly understood were
made public for the first time at the
meeting last evening. The first of
these and the more important of the
two was the opinion Of the corpora
tion counsel. William H. Ely, as to the
legality of the alleged contract between
the board of public works and the Bos-
ton Asphalt company.
| SIletll IldtlllilUIl ana Alderman
| Rattlesdorfer We're both in attendance
upon the session and supported the
measures which came up as the result
Of the investigation that is now pend
Ing before the street committee, all of
| which received the unanimous consent
| of the board Alderman Chillingworth
being a few seconds late with his OBJ
| lection to the passage of the resolu
tion declaring the contract invalid. The
1 gentleman from the Tenth ward did
not rise to his feet until the mayor had
declared that unanimous consent had
been given to Alderman Hamilton's
resolution.
Alderman G. W. Bromley of the
Sixth ward could not see the matter in
the light that Messrs. Hamilton and
Rattlesdorfer did, and thought that the
board os public works should be en-
trusted to execute the order Of the
court of common council. He
upon the subject than to oppose the
resolution, and when the vote was TAX
en- the alderman from the Sixth ward
added his voice to the passage of the
resolution.
The communication from the board of
i public works was comprehensive ac-
count of the history of TIE proceedings
of the board from the time the order
first came into its hands until the sign
ing OF the contract with the Boston
Asphalt Co. The paper suggests that it
would be q breach on contract on the
part of the city to refuse the Boston
| Asphalt Co. permission to continue the
work under the contract. 1t was stat
| ed that the company had bought the
material and that Ii had been shipped
| from Europe. The city would become
liable for the breach of contract and be
! involved in litigation.
| The communication closes as follows:
The board of public works submits
| that, as well under the city charter as
under the act of 1895 (Which must be
] interpreted by the charter) the board
of public works is the only lawful agent
of the city in the carrying out of the
/ orders of the court of common council
/ with reference to public improvements;
| that the court of common council COM
| pletely performs it's duty when it has
ordered some public Improvement to be
/ performed and has directed the board
1 of public works to perform it, and the
resolution Of June is, 1896, which di-
| rects that nothing be done under the
asphalt contract is an interference
with the power and authority of the
| board of public works, and is beyond
the power and authority Of the court
| OF common council.
"The board of public works is not the
agent of the court of common council,
but its powers and duties are imposed
upon it directly by the force of the city
| charter.
| ut cannot in justice to the city of
New Haven direct the Boston Asphalt
Co. not to perform the work under
| the contract"
| The following is the opinion of the
corporation counsel upon the legality
of the contract: Mr.. Ely says:
| In answer to your inquiry asking
whether the contract made by the
| board of public works with the Boston
| Asphalt company providing for laying
"Sicilian Rock Asphalt in portions of
/ West Chapel, Trumbull and Orange
streets is of legal and binding force
against the city of New Haven, 1 would
say:
| The order Of the court of common
| council under which the board of pub
| lie works has acted instructs the board
of public works "to cause the streets
mentioned "to be paved with sheet as
phalt equal in quality to the best Pitch
Lake asphalt" The meaning and ef-
| feet of this order depend upon the pow
er of the board of public works under
the charter, the duties of the court of
common council under the charter and
the duties of the court of common
council under the special act of July !,
! 1895, concerning street pavements.
The act of 1895, under which the court
of common council acted when it pass
| ed the order referred to, provides that
'all pavements laid by the authority
of this act shall be laid upon the credit
of said city and under the direction
and control Of the court of common
| council
| The order does not in terms author
| ize the board of public works to make
and execute any contract like the one
submitted in the name of the city, and
| If it did in fact put this power in the
| hands of the board absolutely and
without any right to interfere, it must
have done so because of some provision
| in the charter or ordinance, or because
| of some necessary implication in the
| order itself. The board of public works
has no authority, under the charter or
ordinances. to make contracts of this
kind for and in behalf of the civ and