Civil Procedure Keyed to Marcus
Band’s Refuse Removal, Inc. v. Borough of Fair Lawn
In February, 1957, the Borough of Fair Lawn (Borough), advertised for bids for collection of the town’s garbage. The borough awarded the contract to Capasso, the lowest bidder, and they began garbage collection. In August, 1957, the Borough adopted Ordinance 688, which required a permit to collect garbage, and further provided that only a person who had a contract with the town could be granted a permit. In other words, only the Capassos could collect garbage in Fair Lawn. Band’s Refuse Removal, Inc. (Plaintiff), had a contract to collect garbage from a plant in the town, so it applied for a permit. According to the ordinance, the Borough denied the application. Plaintiff filed a complaint alleging that the ordinance was arbitrary, discriminatory, unconstitutional and ultra vires. Plaintiff asked that the court declare the ordinance void and order the borough to renew its previous permit or issue a new one. Plaintiff then sued the borough and the defendants subsequently filed an answer alleging that their actions were proper since the contract had been awarded to the Capassos under a proper competitive bidding process. The Capassos then intervened as Defendants and filed a counterclaim asking the Borough to be restrained from issuing a permit to Plaintiff during the term of their contract. In terms of Plaintiff’s action, the appellate court held that Ordinance 688 was valid and that Plaintiff could not challenge the legality of the bidding process because it had not bid and was not a resident of Fair Lawn. In terms of Capasso’s counterclaim against the Borough, the Law Division declared the garbage collection contract between the Borough and Capasso void, any payments made to Capasso under the contract void, and declared Ordinance 688 void. It also held awarded $303,052.62 to the Borough. Defendant appeals the judgment, asserting that the judgment must be reversed because of the manner in which the trial judge conducted the proceedings. On the first day of the trial counsel for the Defendants moved that the judge disqualify himself because his actions before trial demonstrated that he had prejudged the issues and had a plan to use the litigation as a vehicle for a broad municipal investigation. Defendant’s counsel also objected throughout the trial to the participation in the action by the trial judge. During the trial, the judge called his own witnesses, and examined them at length.
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