Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The issue raised by this appeal challenges the validity of a resolution adopted on September 23, 1952 by the Board of Commissioners of the City of Bayonne (hereinafter referred to as the "board"), authorizing the superseding of a contract made in 1949, and the execution of a new contract between the city and Clyde Potts Associates, an engineering firm (hereinafter referred to as "Potts Associates"), at a fee of 7% of the cost of construction of a sewer system.
On December 6, 1949 the board adopted an ordinance appropriating $200,000 for the purpose of financing the cost of preliminary engineering services necessary for the
construction of intercepting sewers and disposal works. On December 28, 1949 the board adopted a resolution authorizing the employment of Potts Associates as engineers "* * * to prepare plans and specifications for the erection and construction of Sewage Treatment Works and Intercepting Sewers, * * *" and on December 30, 1949 a contract of employment was entered into, providing that a commission fee of 7% of the cost of construction be paid for all engineering services essential to the complete construction of the project. The sum of $150,000 was paid to Potts Associates on account of services rendered in the preparation of the preliminary plans and specifications. On April 15, 1952 the board, having determined from the preliminary engineering work the nature and scope of the proposed improvement and enlargement thereof, adopted an ordinance authorizing the issuance of $10,000,000 of bonds to finance the cost thereof.
Thereafter, on September 23, 1952 the Board adopted a resolution awarding the general contract for the construction of the sewage system for the sum of $8,836,731, and also adopted a resolution authorizing the execution of a new contract to supersede the 1949 contract with Potts Associates, the form of which was approved by the aforementioned resolution. The 1952 contract provides for compensation to the engineering firm on the same basis as the 1949 contract, to wit, at the rate of 7% of the total construction costs.
The plaintiff, a taxpayer, instituted an action in lieu of a prerogative writ, wherein he alleged the invalidity of the 1952 resolution authorizing the execution of the superseding contract.
The Law Division held that the contract of December 30, 1949 was null and void by reason of R.S. 40:2-29; that the resolution of September 23, 1952 was legal and valid, and that it is within the corporate power of the city to enter into and execute the proposed new contract with Potts Associates. The plaintiff appeals from the ensuing judgment.
The plaintiff contends that: (1) the 1952 resolution and proposed contract are invalid (a) as violative of R.S. 40:1-59
and 40:50-6, and (b) that they would result in a gift from the city to the engineering firm; that (2) the trial court erred in precluding the plaintiff from interrogating members of the board as to why the best interests of the city would be served by superseding the 1949 contract; and that (3) it was erroneous to hold that the 1949 contract was invalid.
The trial court noted in its opinion that the only issue in the proceeding was "the legality of the resolution of September 23, 1952" and stated: "This is fundamentally and primarily, and, in fact, the only question directly before the court." With this statement we agree.
The validity and efficacy of the resolution of September 23, 1952 being in question, we turn to an examination thereof and ...