Harshman v. Dunbar Township , 11 Pa. Super. 638 ( 1899 )

Opinion by

Beaver, J.,

The Act of May 18, 1871, P. L. 1899, relative to public roads in South Union and Dunbar townships in the county of Fayette, provides for the election of road commissioners, one from the township of South Union and two from the township of Dunbar, increased to three by Act of April 10, 1873, P. L. 761, and prescribes the duties of the said commissioners and the mode in which they shall divide the roads and let them, for the purposes of repair and the opening of new roads, to the lowest bidder. The fourth section provides: “ That it shall be the duty of each purchaser to write Ms or their name, and the sum he or they are to receive for repairing his or their section or sections, in the commissioner’s book, under the description thereof; and any contractor or contractors neglecting or refusing to keep his or their section or sections in repair in conformity thereto, upon complaint of any citizen of said townships, made to the commissioners thereof, it shall be their duty to examine thereinto within four days, and if they deem the complaint well founded, to give notice thereof to the party or parties so complained of, and request him or them to put his or their portion of road in good repair, within six days thereafter ; and if he or they shall still neglect or refuse to repair the same, it shall be the duty of the said commissioners to have the same put in good repair and the cost of said repairs shall be recoverable as other debts of equal amount are by law recoverable, with costs of suit; and it shall not be lawful for the commissioners to become the purchaser of any contract herein authorized to be allotted.” In accordance with the provisions of this act of assembly, the road commissioners provided for therein let the contract for maintaining the roads of Dunbar township at a public letting. A portion of said roads having become more or less worn and needing repairs, two of the said commissioners, with the subsequent assent and approval of the third, who had also previously agreed that the repairs were necessary and should be made, employed the plaintiff to repair certain of the roads which other persons had contracted to keep in repair under the letting and the contracts made thereunder. This special act of assembly was repealed June 14, 1897, P. L. 147. The plaintiff was allowed to recover for work done prior to the said 14th of June, 1897, but not for what was done subsequently thereto.

Upon the trial of the case, the defendant asked for binding instructions which were refused, the refusal constituting the first assignment of error. The second assignment combines twelve distinct extracts from the general charge of the court, the assignment reading as follows: The court erred in charging the jury as follows: (parts of charge inclosed in brackets). This assignment is in violation of our Rule 15 in relation to-assignments of error, which requires that “ Each error relied on. must be assigned particularly and by itself. If any assignments embrace more than one point or refer to more than one. bill of exceptions or raise more than one distinct question, it,' shall be considered a waiver of all the errors so alleged,” etc. This assignment may, therefore, be well disregarded, particularly as we are enabled to determine very clearly from the argument the particular grounds upon which defendant relies in support of his prayer for binding instructions. We, therefore, consider the whole case under that assignment.

The defendant’s contention is, first, that the road commissioners having failed to meet for consultation and deliberation in regard to the employment of labor for the repairs upon the roads, the contract made with the plaintiff was illegal and, therefore, not binding upon the township, and, second, that, inasmuch as no notice was given to the original contractors for repairs to the roads upon which the plaintiff worked, in accordance with the provisions of section 4 of the act of 1871, supra, the township is not liable. The second of these reasons is more seriously insisted upon in the defendant’s argument than the other. As we have lately held in Machine Co. v. Washington Township, 9 Pa. Superior Ct. 105, and in Climax Co. v. Allegheny Township, 10 Pa. Superior Ct. 437, following a long line of well-considered cases in the Supreme Court, any action of road supervisors requiring consultation and deliberation must be had at a regular meeting duly called for that purpose, but'it has always been held that the acts of supervisors in making ordinary repairs to the roads is not such an act as requires deliberation and consultation’on the part of all the supervisors. As was said in Union Township v. Gibboney, 94 Pa. 534: “When damage is done to a road or bridge by a freshet or other accidental cause or when it needs repair from the natural progress of decay, there can be no objection to the necessary expenditure being authorized by less than a majority. This is an absolute duty which calls neither for deliberation nor consultation.” The repairs authorized by two of the commissioners and the employment of the plaintiff to make them and the subsequent ratification or approval of the remaining commissioner was sufficient employment to justify the plaintiff in doing the work and to warrant a recovery against the township for the same. See Jefferson Co. v. Slagle, 66 Pa. 202.

But it is alleged that the commissioners had not given the notice required by the 4th section of the Act of May 18, 1871, supra, and that, therefore, they had no authority to employ the plaintiff, until such notice had been given and the regular contractors had refused for six days after notice to make necessary repairs. This, of course, raises the main question in the case. Was it the duty of the plaintiff to inquire as to whether or not the commissioners had done their duty, before seeking employment from them and doing the work which was authorized by that employment? In Oakland Township v. Martin, 104 Pa. 303, in which suit was brought against the township to recover upon a contract for the reconstruction of a bridge which had been swept away by a freshet, it was said: “Having a general power over the subject-matter in the unquestioned performance of their duty, the contractor was not required to run around and inquire of the taxpayers whether they still owed road taxes and whether they desired to pay the same by work on the proposed bridge. He had a right to assume the supervisors were faithfully discharging their duty in making the contract and that the taxes laid for road purposes had either been paid in work or that the taxpayers preferred to pay the same in money.” Ordinarily in dealing with public officials, where the right to bind the municipality by a contract exists, the doctrine of omnia prsesumuntur rite esse acta applies and we think that doctrine is applicable here. In Danville Hospital v. Overseers, etc., 163 Pa. 175, in which the plaintiff sought to recover for the maintenance of three insane paupers, the defendant claimed that it was necessary for the plaintiff to show affirmatively that an order of relief or approval had been obtained as a condition precedent to a recovery. Mr. Justice Gkeeíí, in delivering the opinion of the Supreme Court, says : “ The verdict of the jury must be taken to have settled the facts of poverty and insanity, and the only question reserved by the court below was as to the necessity of there being proof in the case of an order of relief or an order of approval. But that question could affect only the regularity of the preliminary proceedings, and we are of opinion that as against this plaintiff the district was bound by the act of its overseers and cannot now, after having received all the benefit of the relief and support furnished by the plaintiff, be heard to say that their own legally constituted officials omitted to comply with some legal requirement in acquiring jurisdiction of the paupers in the first instance. When the district, through its overseers, placed these paupers with the plaintiff, they must be deemed to have asserted that the paupers were what the overseers claimed them to be. It is too late and it would be too unjust to permit them to assert the contrary now.” See also Rex v. Catesby, 2 B. & C. 814; Rex v. Whitchurch, 7 B. & C. 573; Hartwell v. Root, 19 Johnson, 345; 10 Am. Dec. 232; Farr v. Sims, Rich. Eq. Dec. 122; 24 Am. Dec. 396; Squier v. Stockton, 5 La. Ann. 120; 52 Am. Dec. 583; Dubuc v. Voss, 19 La. Ann. 210; 92 Am. Dec. 526. This doctrine applies with equal force and pertinency to the present case. The verdict of the jury settled the fact that the roads were in need of repair. This being the case, the commissioners had the right under the law to contract therefor. Of this the law itself acquainted the plaintiff. He had the right to presume that the preliminary acts necessary to enable the commissioners to enter into the contract had been performed by them. It was not his imperative duty to inquire of the contractors whether or not the notice required by the act had been given. That was an official duty incumbent upon the commissioners. When the commissioners made the contract, they must be deemed to have asserted- that the preliminaries necessary to the making of that contract had been performed. As was said in the argument of the appellee, the plaintiff was. bound to know the law, but he was not bound to kn'ow facts. As to the latter, so far as the duties of the commissioners were concerned, he could rightfully presume their existence and that the duties of the commissioners under the law had been performed. It is not necessary to consider what the commissioners' might or might not have done in the presence of a sudden emergency. This was not such a case and can well rest upon its own facts.

One or two minor questions commented upon by the court below in the general charge and included in the omnibus assignment of error, hereinbefore referred to, need not be considered. They do not affect the general principles governing the case, were not necessary to its consideration and were mere dicta which could not' in any way affect the main question as presented to the jury.

The township received the benefit of the plaintiff’s work and it would be unjust as well as illegal to take advantage thereof without compensation. Presuming that the commissioners took bonds from the contractors for the faithful discharge of their duties thereunder, the township has its remedy upon this bond, if due notice was given to the contractor. If the commissioners were negligent in the discharge of their duties in that regard, they might be held responsible for such negligence. Considering the case in all of its aspects, the plaintiff certainly received no more than the law allowed and no injustice is done to the defendant and it should not be and is not without remedy, if it has paid twice for the same service.

Judgment affirmed.