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Sellitto v. Township of Cedar Grove

Decided: May 5, 1945.

NICHOLAS SELLITTO, PROSECUTOR,
v.
TOWNSHIP OF CEDAR GROVE, RESPONDENT



On certiorari.

For the prosecutor, Joseph C. Cassini.

For the respondent, Boardman & Stickel (Fred G. Stickel, III, of counsel).

Before Brogan, Chief Justice, and Justices Donges and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The dispositive question for decision, on the competent proofs in this cause, is whether the determination by respondent that prosecutor was not the lowest responsible

bidder (R.S. 40:50-1, et seq.), is justified, notwithstanding that he was in fact the lowest bidder.

This is the second time this court has been called to pass upon the validity of the action of the Township of Cedar Grove in awarding the contract for public scavenger service, for a fixed period, after having publicly advertised for bids therefor, to one C. D. Marangi whose bid was $6,400, although prosecutor's bid was $5,749.

On the first occasion this court concluded, among other things, that "there was no distinct finding that [prosecutor] was not responsible;" that it had not been shown by competent evidence that prosecutor was irresponsible; that prosecutor was neither put on "fair notice" of a hearing, nor was such a "hearing" held, and thus "due regard was not given to prosecutor's status" as the low bidder. Accordingly, the award to Marangi was set aside. Sellitto v. Cedar Grove Township, 132 N.J.L. 29; 38 A.2d 185.

Thereafter, the mayor and one of the other two members of the Board of Commissioners of respondent township (the third member was absent because of death of a member of his family) conducted a hearing, pursuant to due notice, to determine prosecutor's "responsibility or irresponsibility." See, R.S. 40:72-14, as to a quorum. Prosecutor, represented by counsel, appeared and submitted to a searching examination conducted by the mayor (who is an attorney-at-law) and by counsel for the township. From the transcript of that examination, read by the three commissioners, plus the written exhibits relating to the contract, the Board of Commissioners again concluded that prosecutor was not the "lowest responsible bidder," and for the second time awarded the contract to Marangi. The propriety of that action is attacked by prosecutor.

The law is clear. Prosecutor's status, as the lowest bidder, is not one of grace; it is one of right. Such a status may not lightly be disturbed. For it is based upon competition, a state policy. R.S. 40:50-1, et seq. That policy, concededly applicable here, aims to encourage public bidding, pursuant to advertisement therefor, and to ...


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