Newark post., 1915-03-10
DECISION OF SUPERIOR COURT
O
GIVEN MONDAY, MARCH FIRST IN CASE OF L. B. JACOBS
VS.. S. B. HERDMAN

ths relation of LYNWOOD B. JACOBS,
VS.. SAMUEL B. HERDMAN, Treasurer
of 1.-The COUNCIL OF NEWARK -
(March 1st, 1879
PENNEWILL, c. j., and RICE and
HEISEL, j. j., sitting.
Salisbury, Morris and Rodney for plain
tiff
Ward, Gray and Neary for defendant.
Superior Court, New Castle County,
March Term, 1915.
Mandamus (No. 10, November Term,
l914.)
PENNEWILL, G. j., delivering the
opinion of the court
A motion is made to quash the return
to the alternative writ issued in this case.
1t appears from the relator S petition,
and is undisputed, that the Sewer Com
mission for the Town of Newark, ap-
pointed by a statute of this State, Chap
ter 22O, Volume 81, Laws of Delaware,
awarded to the relator a contract for
work and materials in the construction
of a system of sewers and disposal works
in and for said town. 1t is also undis-
puted that the Sewer Commission had
authority to award such contract
1t is averred in the petition, and not
denied, that the relator, as such contrac-
tor rendered bill to the Council of
Newark, through the Sewer Commission,
for five thousand nine hundred and sew
enty dollars and sixty-two cents, for
labor performed and materials furnished
in the construction of said system of sew
ers and disposal works; that said bill was
approved by the Sewer Commission by
resolution sanctioned by a vote of two
members thereof, and with such appro-
val designated upon its face was after
wards presented to the defendant by the
relator with the request and demand that
he the defendant, issue his warrant in
payment therefor, but this the defendant
refused and still doth refuse to do. The
petition further states that the chairman
of the commission informed the defen-
dant at the tmie of said demand, of the
willingness and readiness of the chair
man to countersign said warrant upon its
being issued by the defendant.
According to the court s view of the
ease the material parts of the statute
and contract above mentioned are the fol
lowing:
Section /, which authorized The Coun
ell of Newark, by and through the
agency of the Sewer Commission ap
pointed by Section of the act, to con
struct system of sewers for the Tow
OF Newark;
Section 2, which appointed Samuel J
Wright, Henry G. NJ. Kollock, and Jos
eph II. Hossinger, Sewer Commission
with full power and authority to do al
the things provided in the act as neces
sary to carry out fully the purposes an,
intents of the act
The following provisions of Section 4
1.-TWO members shall comprise
quorum and all official acts of the Com
mission shall be performed at a regularl.
stated, or at a specially called meeting
and shall be sanctioned by vote of a
least two members thereof. -
1.-THE Treasurer of The Council o
Newark shall act as Treasurer of SAT-
Commission, shall meet with it when re
quested, and shall be the custodian of al
the funds received for or on account o
the construction of the work authorize
by this act, or from the assessments re
ceived by reason of such construction
and no monies shall be paid out by at
thority of said Commission or by author
ity of the said Council, except by wa,
rants or checks issued by The Council o
Newark, signed by the Treasurer o
The Council of Newark, and counter
signed by the chairman of said Commis
sion during its existence.
Said Treasurer shall be required t
give bond to the said Council in sue
amount as it may determine, to protec
The Council Of Newark against any los
suffered by any action of said Treasure
in handling the funds created under th
provisions of this act or in the perform
ance of any other official act hereunder
Paragraph DID of the contract, wher
in cit is further agreed by both pa
ties hereto that no payment for labC
done or materials furnished under tn
agreement shall be due and payable III
til the estimate for such payment is ce
titled by the Chief Engineer to Il
Sewer Commission, and that the action
such Engineer, by which the contract'
is bound and concluded according to Il
terms of this agreement, shall be ey
denced by the final estimate and certi
cate of said Engineer
Paragraph R. of the contract, viii,
contains the provision, that ''In addito