The Jersey City news., 1899-06-13
M'EWAN'S wall
Wants the Supreme Court
To Save Poor strug-
Cling Jersey City,"
The WATER ARGUMENTS
Justices Hear All About the
Contract = Will Give
Decision Speedily.
rspeclal to .The Jersey city News''l.

rSnecial TO ssThe Jersey City News ].
TRENTON. June Is, 1S99.-The argument
on the application of Dudley Flemming,
Augustus Booraem and others from a
writ of certiorari to remove into the
Supreme Court for review the proceed
ings awarding contract for a new water
supply for Jersey City was begun in the
branch of the Supreme Court yesterday,
consisting of Justices Depue, Ludlow and
Gummere. and was continued this morn
ing.
1t was fifteen minutes after three
yesterday afternoon when Justice De-
pue. presiding over the branch
of the Supreme Court, called No Is,
Flemming and others against Jersey
City Mr.. George McEwan, who for the
last hour had been fidgeting about Ike
the Frenchman Mark Twain tells us
about, who swallowed spring mattress.
jumped to his feet and moved the case
Thomas McEwan, who acted as counsel,
looked more important than ever, while
Lebbeus Ward. who had come along to
uphold the hands Of this modern Moses.
who was to deliver the chosen people OF
Jersey City from the water Philistines,
assumed a most sapient air.
Mr. McEWan started off at two hun
dred words q minute gait, and soon had
the Court guessing what he was talking
about. He began by stating That an APP
plication for writ of eertiorari was
made by the same prosecutors ard de-
MED An application on new grounds
was made to Justice Lippincott, who de-
MED the same with leave to renew the APP
plication at the present term Of the
Court. The present, he declared, was
the first opportunity he had had to fol-
low Justice Lippincott's directions. and
on the first day of the term he was in
court with his notion. lie now applied
for the writ on new grounds.
Mr.. McDermott asked him If he could
present a single fact which was not in
existence and easily accessible when he
made his last application. Mr.. McEwan
undertook to answer the question by
long explanation, when Justice Gummere
interrupted him to ask how long that
thing was going to last and the prosecu-
tors take advantage of the Courts pa
-tirhce.zs They come before the Court one
term and their motion is denied, and
then they come the next term with an
other motion on the same grounds. Mr..
MeEwan declared that the applicants for
the writ had no intention of speculating
on the Courts patience, and started off
at his usual break-ineck speed to tell of
the great injury which the present con-
tract would work to the taxpayers and
property owners of Jersey City. When
he again reached the point of the second
application and was defending his clients
from any charge of Iaches which might
be brought against them, Mr.. Edwards
read the dates of the awarding of the
contract. its approval by the Mayor and
the denial by Justice Lippincott of the
application for writ and showed that
Mr.. McEwan had had plenty of time.
Mr. Edwards also pointed out that Mr..
Flynn, the contractor, had spent large
sum of money already on the work of
furnishing the new supply and had i'm
CURED obligations for a still larger sum.
Mr.. Mcswan then asked leave to SUBJ
nit brief he had prepared, but the
other side insisted he should read it.
so that they could reply orally. The
Court was considering this point when
the hour of adjournment arrived. In his
brief Mr.. McEwan says Jersey City is
now obtaining from the East Jersey Wa
ter Company, by contract, more reli-
able supply, both as to quantity and
quality, than that provided for by Flynn's
contract, for the reason that it is not
desirable for Jersey City to bind itself to
receive water from private water COM
pany for period of twenty-five years.
The chief consideration moving Jersey
City to contract with said Patrick H.
Flynn for a supply of water was that
by exercising the option given it to pur-
chase the plant and water supply, said
city might acquire permanent water
supply for the use of its Inhabitants, and
thereby terminate the contract at the
earliest period within which the proposed
works could be completed and satisfac-
torily tested; but that the award to said
FLYNN was made by the Mayor, under
mistake as to the effect of the grant made
by Chapter 1853 of the Laws of 1871, which
renders it impossible for the city or said
F,Vnn to acquire good title to the waters
of the Rockaway River, and will make
me exercise of the aforesaid option inn
possible for the following reasons:-
(a) All the surplus water of the Rock
AWAY River not already appropriated and
used for the purposes OF navigation IN
the Norris Canal would be required to
enable the contractor to furnish seventy
million gallons of water daily to Jersey
City.
r,,e surplus water of the Rockaway
river not needed for the purposes OF
navigation, with the right to divert the
same to supply the inhabitants OF cities
and towns along the line OF the motifs
Canal was granted to the Morris Canal
and Banking Company by the Legislature
Of 1871. said grant being inalienable, ana
said water being liable to appropriation
by said company at any time under SAD
grant and franchise,
Mr.. McEwan then contended that ~
awarding the contract there was no such
competition as required by the charter
and claimed that the advertisement lor
bids under which the award was made
did not offer proposals for bids upon the
basis of a specific plan, and the award
should therefore be set aside.
Next he argued that the provision OF
fbe charter was violated which requires
the award of contract to be made TO
that responsible bidder VINO offers the
terms most advantageous to the city, be-
cause there was but single bidder ana
f1t one bid was entertained.
The contract is clearly one that the
contractor cannot perform, and therefore
void and illegal. Mr. McEwan next
claimed and said:--nOne of the chief ele-
n,ents of the contract, in consideration
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