Mayor of Jersey City v. Town of Harrison

Dixon, J.

(dissenting). I do not think that the resolution passed by_thé council of the town of Harrison on July 7th, 1903, and the action of Jersey City thereon, constituted a contract for the furnishing of a water-supply, but I do think they constituted a proposal on the part of the town and an acceptance on the part of the city which, prima facie, would entitle each as against the other to insist on the execution of such a contract.

Assuming that such a proposal and acceptance are within the statute of frauds, I think they were both duly signed.

That the contract tendered by Jersey City was duly signed is admitted.

The resolution of the council unconditionally called for action by Jersey City, and thus by necessary implication authorized the clerk of the council to- communicate its terms to the city in the usual manner. This he did by sending to the city authorities a certified copy of the resolution, signed by himself as clerk of the council. The propriety of his doing so was not questioned by the council, when in response to the resolution the city tendered the contract executed by it. Such signature fulfilled the requirements of the statute.

Stress is here laid on the word “new” to support the position that the acceptance by the city did not correspond with the proposal by the town. The evidence shows that Jersey City was then receiving what was known and characterized as “a new water-supply” for the use of its own citizens, and *193the town, under the contract of July 31st, 1885, and therefore under the terms of the resolution of July 7th, 1903, was to be furnished with water out of the same supply. To this effect was the acceptance by the city.

I therefore conclude that by force of the proposal and acceptance Jersey City acquired rights of which the council could not legally deprive it, except upon-the ascertainment of some extrinsic ground for denying the justness of its claim.

When a municipal body is confronted with such a situation, then, according to numerous decisions in this state (Traction Company v. Board of Works, 27 Vroom 431; affirmed on error, 28 Id 710; Connolly v. Freeholders, Id. 286; Stanley v. Passaic, 31 Id. 392; Dodd v. State Board of Health, 38 Id. 463; Jersey City, &c., Railway Co. v. Passaic, 39 Id. 110), the body must assume a quasi-judicial character and give due notice to the parties interested before proceeding to deal with their rights. If it fails to do so^ its proceedings will be set aside on certiorari.

Consequently the resolution of the council passed September loth, 1903, to rescind the resolution of July 7th, 1903, without notice to Jersey City, should be set aside.

Until the rights of Jersey City were legally ended it was unreasonable for the council to attempt to bind the town as proposed by the resolution of September 15th, 1903, providing for a contract.with the New Jersey Suburban Water Company for another supply of water, and therefore that resolution should also be set aside.

For affirmance — Ti-ie Chancellor, Chiee Justice, Garrison, Swayze, Bogert, Vredenburgh, Vroom, Green. 8. For reversal — Dixon, Gray. 2.