Miller v. Atlantic City

The opinion of the court was delivered by Pitney, J.

This is a certiorari to review a resolution adopted by the city council July 9th, 1906, revoking a contract theretofore made between the city and the prosecutor under date of February 15th, 1906, for doing the work and providing all the material required for relaying the pavement over all openings made within the driveways of streets paved with .gravel, broken stone, &c., during the remainder of the year ending December 31st, 1906. The contract contemplated that the contractor should, as required from time to time during its continuance, supervise the refilling of trenches by persons and corporations making openings, and should himself replace the surface over the openings when refilled, using pavement gravel, broken stone, &c., according to circumstances. By one of its clauses it was provided that the contractor should make the repairs over openings in an expeditious manner, without unnecessary delay, “and since no specific time can be herein fixed wherein any work shall be completed, it is hereby agreed that whenever the city council of Atlantic City shall become satisfied that the work or any part 'thereof is being unnecessarily delayed, it shall have power and authority to terminate this contract by resolution passed at any meeting.” The evidence shows ’that Miller delayed work owing to inability to procure materials, *347 so that Ohio avenue for a long distance lay open for six weeks: that on two or three different occasions the chairman of the street committee made report of the matter to his committee, and that on July 9th he reported the matter to the city council as coming from that committee. The contents of this report were offered to be shown, but were ruled out on the objection of the prosecutor. The ease shows that it was on the motion of the chairman of the street committee that the city council resolved to revoke Miller’s contract.

The reasons assigned for reversal all proceed on the ground that no notice was given to the prosecutor of the intended action of city council, and that he had a vested interest in the contract, of which he could not be thus deprived without notice or hearing.

In our opinion, his vested right was only that the contract should remain in force until the city council should become satisfied that the work was being unnecessarily delayed, and should thereupon, by resolution passed at any meeting, terminate the contract. It was in this sense and to this extent, an employment at will, or at least under a terminable contract, and in our opinion the city council could proceed to terminate it without notice to Miller, and their action in so doing is not reviewable by the courts in the absence of anything to show that they acted unreasonably or wantonly.

The resolution under review should be affirmed, with costs.