The opinion of the court was delivered by
Swayze, J.We think the resolution is not such as is contemplated by section 6 of the Commission Government act. Pamph. L. 1913, p. 619. So far as the resolution merely terminates Mori arty’s contract, it is not even within the words of section 6; so far as it authorizes the making of a contract, the act is intended only to reach original contracts and not to include 'merely subsidiary contracts that are already provided for by the terms of contracts duly made. In the present ease, the original contract with Moriarty, the validity of which is mot questioned, provided that he and his surety should be compelled to pay whatever the city was compelled to lay out to finish the work. The subcontract necessary for that purpose was impliedly authorized by the duly adopted principal contract with Moriarty. We think nothing-more was necessary. If we were wrong in this, the prosecutor would not be entitled to relief, since on the prosecutor’s view the resolution cannot be held to have been, finally adopted, and would be merely the form in which it was proposed to be finally adopted. The staihte evidently contemplates two proceedings—first, the completion of the form in which the ordinance or resolution must be finally passed; second, the final passage or adoption at least two weeks thereafter. It is only on this supposition that the word “final” in the act can *388be given a sensible meaning. The reason underlying the act seems obvious. The provision was .meant to insure against haste or trickery in municipal legislation. To that end, the public were to have two weeks to examine the proposed resolution or ordinance, and it was not subject to amendment. Since the present resolution was not finally passed within the meaning of the statute, the prosecutor could not be injured, even on his own view. He would have the right to go on doing the work as he has done, and the city would be obligated to pay him. The prosecutor as taxpaj^er could not be injured since the city would owe nothing to the Maloney company for work done before the resolution was finally adopted. The result would then be a dismissal of the writ as prematurely allowed. But for the reason we have before stated, we think the resolution became effective at once, and we proceed to the other objections raised by the prosecutor.
It was legal to insert in the contract the provision for its termination. The argument that no such provision is authorized by the statute is beside the point. It may be extra-statutory, but that is very different from being illegal. It would be intolerable if the legislature were required to authorize specifically every provision and specification of every municipal contract. The details must be left to the municipality, as in fact they always have been. The suggestion that the right to terminate a contract opens the door for the evasion of competitive bidding is without force. The fact that a provision which is intended to protect the rights of the city by securing prompt and exact performance on the part of the contractor, adds to the power of the municipality, is far from being against .public policy; it is quite in accordance therewith. If in fact the provision is perverted for the purpose of evading the requirement of competitive bidding, the court can readily correct the evil by setting aside the fraudulent contract. There is no suggestion of fraud in this ease.
It is hardly necessary to deal with the suggestion that there should have been unanimous action by the board. In this *389ease as in others, the act of a majority at a meeting of the board duty held, is the act of the board.
That the prosecutor was not entitled to be heard in such a case is settled in this court. Miller v. Atlantic City, 74 N. J. L. 345. The contract with Moriarty itself makes a distinction by requiring due notice to him when it is sought to impose the $50 for damages and omitting that requirement in the clause authorizing the termination of the contract.
That the city had not only its remedy by exacting the $50 for liquidated damages, hut also its remedy by terminating the contract is clear. The damages are for actual violation of contract; the termination is authorized as a remedy for unsatisfactory performance. Violation of the contract may justify the hoard of commissioners in their dissatisfaction, hut performance that may well be unsatisfactory may not go so far as to amount to violation. The contract contains the two clauses because each dealt with a different situation.
If the prosecutor was in fact misled by the mayor, it was his own fault. His mistake, or the conduct of the mayor could not bind the board. By the contract it was the hoard-that was to be satisfied, not the mayor alone.
■ Whether the prosecutor was under a legal obligation to remove house refuse or dead animals is of no importance. If an attempt was made to impose upon him greater burdens than, the contract warranted, his remedy was to refuse to do the extra work and stand on his contract rights.
The argument that the contract with the Maloney Contracting Company should have been let only after competitive bidding cannot prevail. That contract was only a means of carrying out the provisions of the original contract with Moriarty—a subcontract. The case is quite like Camden v. Ward, 67 N. J. L. 558. Nor is there any proof that the appropriations will be exceeded by carrying out the contract with the Maloney company. If in fact the cost: will exceed the amount to be recovered of Moriarty and his surety, we must assume that the hoard will take measures to meet the difficulty, either by terminating the contract under the five-day clause contained therein, or by obtaining, if practicable, *390increased appropriations. We cannot assume that they will incur expense in excess of the appropriations.
We find nothing arbitrary or unreasonable in the action of the board. The fact that Moriarty had twice within six weeks pleaded guilty to violations of contract, was sufficient to justify the board in finding that his work was not satisfactorily performed.
The writ must be dismissed, with costs.