State v. City of Elizabeth

Scudder, J.

It will be observed, by reading the state of facts in this case, that the contemplated improvement was the re-paving of Morris avenue from the track of the Central Railroad of New Jersey to the city line, with the Stow foundation pavement, a patented article, which only John Bryan & Co. could lay in the city of Elizabeth. It is, therefore, first important to determine the question — which was fully discussed on the argument — whether section one hundred and twenty-three of the charter of 1863, which directs that all contracts for doing work, or furnishing materials for any improvement under the act, exceeding in amount $100, shall be advertised, and shall, at all times, be given to the lowest bidder —he or they giving ample and satisfactory security for the same, according to the contract — excludes a patented article, where there is an exclusive right to use it within the proposed territory, because there can be but one bid.

This section of the statute contemplates the public advantage of an open, free competition in doing work, and furnishing materials for all public improvements, which is inconsistent with the exclusive right to sell a patented article previously selected, and alone acceptable.

This question has been discussed and adjudicated in other states — not always alike, or without dissent, as may be seen by referring to Hobart v. City of Detroit, 7 Am. L. R. 741; Den v. Charlton, Ib. 564, (Wis. Rep.;) Astor v. City of New *355 York, Sup. Ct., Gen. Term, Feb., 1869; Harlem Gas Light Co. v. New York, 33 N. Y. 309 .

In ílie ease of John Coar et al. v. Jersey City, at the present term of this court, it is deckled that, where the resolution of the city council was to pave with Nicolson pavement that being a patented pavement, and the right to use it in Jersey City exclusively held by the only bidder for the work, there was not, and could not be, any competition within I lie intent, of the charter, and for that reason the resolution and proceedings, awarding the contract to such bidder, should bo set aside.

Jt requires considerable ingenuity to avoid sueli a reasonable conclusion from such plain and direct statutory requirement. Uo one can compete, on equal terms, with a man who controls the sale of the thing needed. Bidding, under such a condition, is but a form, and the result must be almost necessarily deceptive and injurious to ¡arsons who are to be assessed for payment. There can hardly be a lowest bidder, within the intent of the charter, where there can be, in reality, but one bid. This question dot's not appear to have been considered in State v. Ayres, June Term, 1871, for the reason, probably, that there are other provisions in the charters of many of our cities, taking patented processes out of the operation of a similar section. The policy of such exception is not within our province to determine, after legislative authority is given, but I must give a hearty approval of the expression used by Judge Campbell in the Detroit case, when he says: I can conceive no more fruitful source of possible inducements to corruption than the monopoly of paving the streets of a large city.”

There are supplements in this charter which modify, explain, and except, from this section one hundred and twenty-three. Thus, in the supplement of April 5th, 1865, section four, this section one hundred and twenty-three is amended by adding, “ Provided, that the city council may reject any or all bids, if they deem it best for the interest of the city to do so.” Also, in section nine of supplement of April 1st, 1869, assess *356 rnents for paving and flagging shall not; be void by reason of letters patent for the same, or because there is but one bid for the contract to do said work.

Again, February 9th, 1870, a further supplement was passed, regulating the awarding of contracts for improvements where the use of any patented process or materials is contemplated.

This case is, therefore, narrowed by legislative action to the construction and application, mainly, of this last supplement. It enacts, in substance, that whenever the city council of the said city shall determine to cause such improvements, if the owners of one-half of the property in running feet along the line of the intended improvement shall remonstrate in writing against the use of any specified patent, or petition for the use of any specified patent, the contract shall be awarded only in accordance with the request of such proportion of owners. Section two makes it obligatory on the mayor -to ascertain that this proportion is secured before the contract is awarded or rejected, and binds the council, on his return of the contract for this cause, to reconsider their action, and to award the contract in accordance with the provisions of that act.

In this case, there is a petition for, and a remonstrance against, the specified patent. Do either show a majority of running feet on the part of the avenue to be improved? This question of fact must be settled. The city surveyor certifies at the bottom of the petition presented by some of the property-owners on the avenue, July 25th, 1871, that the names subscribed represent more than a majority of feet-front on Morris avenue. This certificate, and the action of the council upon it, although in good faith, do not prevent this court from looking into and deciding this point. Ample power is given us by the act relative to the writ of certiorari, April 6th, 1871, to determine disputed questions of fact, as well as law.

The total number of running feet to be improved is six thousand and forty-nine; one-half is three thousand and twenty-four and a half. The whole number of feet represented in the petition presented to the city council for the *357 stone foundation pavement is four thousand two hundred and ninety-six and five-sixths.

It is admitted that there are some errors in these particulars; there are others which we will determine. John Riley signed three hundred and ninety-five feet, while his correct number is three hundred feet — excess, ninety-five feet. Brazilla Avres signed fifty feel, when he owned but thirty-two feet; the difference is eighteen feet. Moses Parcell signed both petitions — one should be deducted — one hundred and ninety-five feet. John O. Magie signed for the Morris Avenue School Association, without authority from the board of trustees, fifty feet. David Richardson, John B. Norton, and Charles Schroder signed for their wives, respectively. Where land belongs io a married woman, she should sign, and the husband cannot sign for her. She is owner, and he cannot create a lien on her estate by his petition for an improvement of her land, which, when made, becomes a charge against it. This principle was decided in a case under our mechanics' lien law. Johnson v. Parker, 2 Dutcher 239. What was thus signed, must be deducted one hundred and fifty feet. Neheminh B. Sayre and Philip A. Dougherty signed for a consideration. Both say they would not have signed without it. Robert AY. Southmayd, who was in the office of the Stone Foundation Pavement Company, and in some way interested with them, agreed to fill up their lots, lying near the improvement, with dirt, if they would sign. Such purchased consent is against the policy of the law, and unjust to the other property-owners. The fair judgment of the owners, and not their cupidity, must determine the question whether they and others shall be assessed. A promissory note given by the applicants for a public road to a caveator against the road to buy off his opposition and secure his assent to it, is void. Smith v. Applegate, 3 Zab. 352. It is no less obnoxious to the same rule of public policy and private right, that an owner of a pateut right, or his employee or agent, should, by compensation and favor shown to one person interested, secure his aid to impose a burden upon others and upon the public, under the provis *358 ions of this charter. It is not only silencing probable opposition, but securing efficient aid against others.

The number of feet signed under such influences must therefore be deducted, (four hundred and one feet.) Before the contract was awarded, Jacob Franty John Riley, William Stiles, Daniel II. Noe, J. E. Buzby, and Joseph M. Lewis signed a remonstrance against any wooden pavement, and thereby withdrew their assent to the petition. I think they had the right to take their names from the petition by this method, at any time before the city council had become bound by a contract made in accordance with their request • especially as there is some evidence that the probable cost of the proposed pavement was understated by those interested, to procure their former consent. These persons represent six hundred and ten and a half feet. The aggregate of deductions is fifteen hundred and nineteen and a half feet; the total number signing, four thousand two hundred and ninety-six and five-sixths, leaving a balance of two thousand seven hundred and seventy-seven and one-third feet. This is less than three thousand and twenty-four feet, one-lialf of the whole number of running feet along the line of the improvement. The remonstrance is signed by property-owners representing two thousand seven hundred and fourteen and one-half feet. This is also short of the required one-half. By this result, it appears that there was neither a sufficient petition or remonstrance. The section is confused, and at first reading it might seem that, in case there was neither petition or remonstrance, the common council, having determined to cause the improvement to be made which should contemplate the use of a patented process or materials, if they, the owners, did not interpose a petition for, or remonstrance against, some specified patent, could go on to use such as the themselves might choose. But the last clause of the section settles the construction differently. It reads thus: “ The said city council shall award the contract for the said work only in accordance with the'request of such proportion.” The term, “said work,” in this clause, and “such work,” in the *359 second section, refer to all the work contemplated in the first section, and apply to the use of any patent process or materials. This is reasonable and just. It gives the property-owners the control of such improvements as employ patented processes whore there can be no competition, and is a restraint upon experiments and speculations undertaken at the expense and risk of those who are often overburdened by such assessments.

The resolution of the city council of Elizabeth, awarding this contract i'or paving Morris avenue with Stow foundation pavement, was in excess of their authority, and all proceedings under it are null and void. This conclusion makes it unnecessary to decide the other points discussed ou the argument.

Justices Bedle and Daltiimplh concurred.