Shiloh Street , 165 Pa. 386 ( 1895 )

Opinion by

Mr. Justice Green,

The viewers in their report found specifically that the change of grade from the grade established by the ordinance of March 16, 1888, was necessary to make a connection with Grandview avenue, and that the grading of Shiloh street had been partly done under the ordinance of 1884, and before the grade of Grand-view avenue was established. They also found that the change involved an additional cost of about a thousand dollars, but that the benefit of the change was fully equal to the additional cost and damage and that the properties along the line of the street were benefited to the extent of any and all damage which may have been caused'by the change. They also found that the total amount of damages, costs.and expenses of the im-' provement was $18,126.61, and that said total amount is not in excess of the worth and value of the improvement. They then ascertained and reported the damages sustained- by the owners and the benefits conferred by the improvement, and fixed and reported the amounts to be paid by the owners who were benefited.

The only real question now in dispute under the exceptions is the power of councils to make the change of grade without a special ordinance to that effect. The exceptants claim that this change could not be made without a special ordinance to that effect. The power of the councils to change the grade by means of a special ordinance is not controverted. But it is very familiar doctrine that councils may by subsequent ratification validate and adopt an unauthorized act of their agents, officers and employees.

Thus in McKnight v. City of Pittsburg, 91 Pa. 273, which was a sci. fa. upon a municipal lien against a lot owner to enforce payment for work done in the grading of a street, and the de-' fendant contended, as here, that the grade originally established h-ad been changed by the city engineer without the authority of any ordinance, we held the defendant liable to pay because the work of the engineer in changing the grade was subsequently adopted by the city. Gordon, J., delivering the opinion, said: “ The difficulty however is found in the fact that between the time of the making of the ordinance and the letting of the contract a grade for Ridge street was adopted by the proper authorities. Such being the case, the engineer exceeded his authority when he disregarded that grade and adopted a new one, and the city, at any time before the adoption by it of the work done bjr the contractor, might have repudiated the act of its engineer and avoided the contract. But it could not do this after such adoption; for as in the case of a private person, it having the power to contract, the power to adopt a contract made for its benefit is necessarily involved in the original power. It is indeed bat a question of power that we have to consider; that being determined all is determined. Hence, we repeat, the city having the undisputed power to establish grades and to make contracts for paving, the correlative power of adopting grades and contracts, made by its officers for its own benefit, necessarily follows.”

We followed the same ruling in City v. Hays, 93 Pa. 72. We held there that although the agent of the city exceeded his authority, as the contract was one which the city might have authorized, it could waive the irregularity and adopt the contract after it was made.

The question of adoption is one exclusively for the city and with which the citizen has nothing to do. We said in the opinion, “But under the powers vested in the city councils, already, referred to, there is no doubt that they could have approved and accepted the work, and so have bound the city.”

In Silsby Manfg. Co. v. Allentown, 153 Pa. 319, we held that councils of a municipality may adopt an unauthorized act done for the benefit of the city by one of the municipal officers and assume the debt so contracted.

In 1 Dillon on Municipal Corporations, sec. 463, it is said, “ A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the corporate powers but not otherwise.” , .

There is no contention upon the correctness of the foregoing principles. The only remaining question therefore is upon the adoption and ratification of the work done upon the street after the change of grade.. Upon that subject there is no possibility of controversy because the claim of the city is founded upon the work thus done. The report of the viewers sets out the fact of the change and describes the character, cost and expense of the work, and fixes the amount to be paid by each owner under the assessment for benefits occasioned by the work. That report was confirmed at the instance of the city and this action of scire facias is brought to recover for that veiy work. It is asserted by counsel for the city in his counter statement that the work was accepted by the city and this statement is not denied by the appellants.

We see no error in this record.

Judgment affirmed.