New-York tribune., 1908-01-21
DROP ASHOKAN CASE.
D4M CONTRACT LEGAL.
Manor Said To Be Inclined to
FoIlosr Pendleton's 1dUicc


,.ised Mayor Mcclellan yesterday that the Board
- water Supply had acted within its legal
rights in awarding the Ashokan dam contract
~ other than the lowest bidder. and that the
case should be dropped It is understood at the
city Hall that nothing more will be heard or
the charges SO far as the Mayor is concerned.
In the opinion. Mr. Pendleton says
Il am Of the opinion that. matter OF law
.he evidence and facts do not warrant the pre-
4e-7nent of charges against the members of the
board
The Commissioners Of Accounts last year
made a prolonged investigation Of the award
Of the contract for the Ashokan dam IN the
CatsIiIls TO Macarthur Brothers Company ana
winston & Co. for So. 2.669.175. while the bid OF
the John Peirce Company was S10.319.3'o- Inc
Commissioners of Accounts reported 10 the
Mayor shortly before Christmas that the inNeSu-
CATION warranted charges of misconduct and in
competency against the board. and that Such
charges would follow their report. The Mayor
was not sure that the assumption of the Com
raissioners of Accounts was warranted. ana re-
ferred the report TO the Corporation Counsel t"r
sn opinion Mr.. PendIetons opinion. which prac-
ticaIly justifes the board from a legal point OF
view, is follows:
Hon George 3. Mcclellan Mayor. -, -o.,as,
Ny Dear Sir: In reply 10 your verbal re4uesi .S
OF the Ashokan Dam by the Board Of Water Water - Sup-
ali the papers connected with this subject anu 10
bn.r 1,,ch assisted hv the very thorough eKamna-
,f@5 sn5 Te1ort fv the Commissioners Of Accounts
who under YOUR direction. have i ;,toe+i
cation many things have become known which
may not have been known at the time ana a. .
sult II may be in the llgnt OF new .I tas
different conclusions might have been reacheu- %
that as It & MAJ fne d resfes t xclusively 20
the question of arising in connection with the
Bddf 2st5sTs sate alSePS5 of ocfober IL Tso7. said
The Board OF Mater supply was apPoin[sed, om5 %I5
section - Of that statute is follows: 49,.
,ts6 ion i +e dTfisent e fe said BIDS or pro-
posals shall publicly opened by the said Board
possi the Acceptance Of which will in their judg
Tnenr- best secure the efficient performance OF @ t
WORK. or they may reject any or all OF such
1t is perfectly clear from this section of the
statute that the Board Of Water Supply is at lib
erty accept any bid which. IN its Judgment viii
hest secure the efficient performance OF the Work.
Il DO not see how there can be any doubt Of the
Company and Winston & Co. as the contractors. II
the acceptance OF their bid Will IN the ludseht ok
the board, best secure the efficient performance OF
Similar provisions exist other statutes so that
the granting of authority for the making of
with other than the lowest bidder is not un-
usual and many instances could be cited IN when
The question Of the advisabiity Of letting the
contract for this great and extraordinary work SO
urgently needed and SO important TO the interests
0f city contractor not the lowest bidder Is
not q question Of law. but question the answer 10
which depends upon multitude OF facts and cir
The statute placed the power OF determining
This question in the Board OF Water Supply. This
IF the board failed TO wisely exercise the dis
Gn ed eTidentiy S be- sbec u s t grs1 cres T
Very broad powers are given 20 the Board Of
I SHOULD have the power Of letting contracts par
clarly without the concurrence Of any other board
see no reason to in any way modify the views
above expressed There can be no doubt. there
supply acted entirely within its powers when It
i for the best interests of the city let the
contract 20 other than the lowest bidder That
ne Board Of Water supply is further accentusted
~ ne tact 1ilat 5he abIiiIg 10 TeInqrai wh.Gn
act Is strictly limited by the express terms Of the
NO member OF said board shall be removed
0ept for incompetency oi misconduct shown after
Taking the whole statute together 1t is entirely
evident. think, that il the intention Of the
legislature to vest great powers and wide dis
c-etiOn ia the board and at the same time and as
riEh- Of removal to specific cases involving per
sonal wrongdoing on behalf of the members; mis-
conduct as used the statute. be held, in
nay opinion TO mean Wilful, conscious wrongdoing,
or such gress negligence as will be tantauount to-
~ilfuI xrongdoine Errors in Judgment or the
fact that the board came to an erroneous concu-
upon are strictly eliminated By the statute
very marked distinction between this statute and
the provisions Of the charter vesung absolute
clear that the Legislature intended to make this
distinction and 70 limit the right Of removal 10
IN which the Mayor. after q hearing ana
formal charges should judicially find the existence
If the specific causes mentioned in the act as
prerequisite to the power OF removal
L / apparent that very serious difference OF
opinion has developed 70 whether the conclusion
~ the hoard ward the contract for the Ash
nkan Dam the lowest bidder was wise or for the
hest interests of the city. I understand that the
members board still adhere TO their Conclu-
-son that the course pursued by them was wise
. Whether not, in view Of all the facts as
APPARENT such conclusion wise is imma-
'er3zl for the purposes Of this opinion The ques
ion presented to IL whether the facts and evil
6ence Justify the charge Of incompetency or mis-
conduct within the meaning of the statute There
II suggestion behalf Of anybody rejecting
upon either the integrity the motives of the
members of the commission. and after very care.
tul consideration of all the circumstances am OF
opinion that as matter OF law. the evidence and
facts DO not warrant the prefernent Of charges
against the members Of the board. Yours very