Fell v. Philadelphia ex rel. Cunningham , 1876 Pa. LEXIS 117 ( 1876 )

Mr. Justice Woodward

delivered the opinion of the court,

An agreement was entered into on the 27th of March 1869, between a majority of the owners of property on the portion of Becket street which was intended to he improved, and Michael’ Cunningham and Daniel McNichol, for paving that street from its intersection with Woodland street to a point four hundred and five feet west of Forty-second street, in the twenty-seventh ward of Philadelphia. It was stipulated that the work was to he done “ under the direction and to the satisfaction of the chief commissioner of highways,” and was to be paid for at the rate of one dollar and twenty-five cents per square yard. . When the agreement was executed this work had not been authorized by the city councils. On the 13th of April 1869, an ordinance was passed directing the department of highways “ to enter into a contract with a competent paver or pavers, selected by a majority of the owners of property fronting on Becket street from Woodland street to Forty-third street, for the paving thereof,” and providing, as one of the conditions of the contract, that the cost of the work should be collected from the respective property owners by the contractor or contractors. An ordinance of the 12th of June 1868, requiring the streets of West Philadelphia to be laid with rubble pavement only, was in force at the date of the agreement of the property owners with Cunningham and McNichol. And the same ordinance fixed the sum of one dollar and fifty cents per square yard as the charge for rubble pavement; and the sum of one dollar and twenty-five cents per square yard as the charge for cobble pavement. On the 21st of June-1869, so much of the ordinance of the 12th of June 1868, as related to Becket street from Woodland to Forty-third street, in the Twenty-seventh ward, was repealed. And on the 24th of June 1869, a contract was executed by Cunningham and McNichol “to pave Becket street from Forty-third street to Woodland street,” in accordance with “all the provisions of section third of the ordinance approved March 27th 1868.” Under this contract the work contemplated by the agreement of the -27th of March 1869, was done. That is, Becket street was paved from Woodland street to a point four hundred and five feet west of Forty-second street. It was shown on the trial that performance of the stipulation to pave the part of the street between the point last named and Forty-third street was impossible, because, .under the provisions of the two Acts of Assembly, passed respectively on the 18th of July 1863 and the 17th of March 1864, the lands of the Hamilton Park Association extended to that point, and the opening of streets on those lands while they should be used for park purposes was forbidden. The fact that the work was satisfactorily done by the contractors was established by the verdict of the jury.

Various questions growing out of alleged irregularities in the proceedings, which resulted in the execution of the contract, were raised on the trial in the District Court. Many of thesé related to formal omissions of acts prescribed by statute or ordinance, on the part of the city officers. It was complained, for instance, that the certificate of the commissioner was not affixed to the bill which was rendered when the work was completed, according to the provisions of the ordinance of the 30th of August 1868. But the commissioner testified that he had supervised the paving during its progress, and had inspected and approved of it when finished. The omission of the approval of the sureties in the contract by the city solicitor, as required by the twentieth section of the Act of the 21st of April 1855, was also made ground for complaint. But such approval is Hot directed to be endorsed, and the fact that the bill was certified by the surveyor and solicitor, would imply in this action, in which the city has joined as the legal plaintiff, a ratification by the proper authorities of the action of the highway department. The existence of the Hamilton Park Acts of 1863 and 1864 was overlooked when the ordinance of the 13th of April 1869, was passed, and when the contract for the paving was subsequently executed. The work of the contractors was stopped at the line of the property of the Park Association by the express provisions of a statute. They did all that they could lawfully do under the contract with the city, and they executed literally the agreement they had made with the property owners on Becket street. Buies in cases of this kind could easily be made so rigid as to work injustice. In questions involving the liability of defendants for their proportions of the cost of municipal improvements, the relations between the city and the parties with whom they contract are ordinarily outside the line of legitimate inquiry. When such improvements are within what were the incorporated districts of the county of Philadelphia when the Act of the 19th of April 1843 was passed, a defendant can “only deny that the work was done, or the materials furnished, or prove that the price charged was greater than their value, or that the amount claimed has been paid or released.” Notwithstanding the doubt intimated by Mr. Justice Williams in Philadelphia v. Edwards, 28 P. F. Smith 62, that act has constantly been recognised by this court, to be in force. It was recognised in the Philadelphia v. Burgin, 14 Wright 539, and has been expressly followed down to the decision in Philadelphia v. Brooke, in February last, antea, p. 23. Indeed the terms of the forty-fourth section of the Consolidation Act of February 2d 1854, scarcely leaves the question open to debate. Those terms are: “All acts of the legislature not inconsistent with this act, now in force, shall continue in operation within the limits of the county, city, district, borough or township in which they are now operative, under the authority of the city councils, courts and officers created by this act, or permitted to continue as consistent therewith, until such acts shall be altered or repealed by the legislature: Provided, That the city councils shall have power, by ordinance, to extend the operation of laws now in force within the city, police or municipal districts, to other parts, or over the whole of the enlarged limits, and to declare what laws have become obsolete by this act, or by the extension as aforesaid of other laws.” It has been uniformly held, that it is not competent for a defendant to raise questions relating to the formal details of agreements between the city and its contractors, and to their execution and performance, where the acts of the municipal officers have been ratified, and the work done by the contractors has been accepted : Philadelphia v. Wistar, 11 Casey 427; Philadelphia v. Burgin, supra; and Hutchinson v. Pittsburg, 22 P. F. Smith 320.

Other deficiencies, however, are developed in this record which have more significance. The ordinance of the 31st of December 1862, is in these words : “ Hereafter, before any contract for paving any street or streets, shall be enteréd into by the' highway department, the person or persons applying for such contract shall give notice of such application in two daily papers having the ■largest circulation by three consecutive insertions, at least two weeks prior to the making of such application, such notice to set forth: 1. The name of the contractor or contractors; 2. The locality of the space or spaces intended to be paved, with the length of each space in linear feet; 3. The name and residence of each person signing for contractor, together with 'the number of feet owned or represented by each person so signing fronting on said street or streets; 4. To such notice shall be added an invitation to the owners of property to meet at the department of highways, at a certain hour on a given day, to show cause, if any, why such contract should not be awarded to the applicant.” No evidence was given by either party on the trial on the subject of notice by these contractors. If the proceeding had been in other respects regular, the plaintiffs could rest on the presumption that the municipal officers had performed the duties imposed by law upon them. But while the contractors held the agreement of the 27th of March 1869, and while the ordinance authorizing the paving of Beeket street had been passed on the 13th of April 1869, yet the agreement stipulated for the cost of a cobble pavement, and no power to lay any other than a rubble pavement in West Philadelphia was conferred by councils until the 21st of June 1869. The contract was made on the 24th of June 1869. There was thus an interval of just three days between the grant of authority to lay a cobble pavement and the execution of the contract in pursuance of the grant. Of course two weeks’ notice of the application of the contractors for the -work that was actually done was physically impossible. Let it be presumed that some notice was published, as required by the ordinance of 1862. If it described the work as a cobble pavement, the defendant was not bound by it, for such a pavement was prohibited by the ordinance of the 12th of June 1868. If the notice described the -work as a rubble pavement, the defendant could not be required to pay for that which was actually laid, for that was a cobble pavement. The facts prove affirmatively that the legal requisites of such a contract between the city and the contractors, as would create an obligation on the defendant to pay, were not fulfilled. There is no room for the application of the maxim omnia prcesumuntur rite esse aeta, for that principle heals only apparent irregularities or omissions, where jurisdiction or power over the subject-matter is clearly vested : Sharswooi), J., in Pittsburg v. Walter, 19 P. F. Smith 365. The irregularities, here upturn the very foundation of the jurisdiction.

In view of the good faith in which the contract was entered into, and with which the work has been done by the contractors, it has been with reluctance that this' conclusion has been reached. But this is not a question between the city and the contractors, nor between the contractors and the property owners who employed them. It arises between the city and the defendant. The latter had assumed no duty expressly or by implication. He can be made subject to a legal obligation only where the power conferred on the municipal authorities has been legally exercised. Like The City v. Lea, 5 Phila. R. 77, this is “ a case depending wholly on the forms and requisitions of law, and in no degree on consent or contract, in which one of the forms, one of the conditions which the law itself has imposed, is wholly wanting.” It is within the principle of the Philadelphia v. Reilly, 10 P. F. Smith 467 ; of the City v. Stewart, 1 Weekly Notes 242, and of Pittsburg v. Walter, supra. The city could have waived irregularities and defects of form. The property owners who entered into the agreement with the contractors, by leaving the authority they had conferred unrevoked, could not make those irregularities and defects subjects of complaint. But jurisdiction over^the defendant and his property could be obtained only by pursuing rules prescribed by law, and the record proves that these rules could not possibly have been observed. The judgment is reversed.

And now, to wit, 22d May 1876, it is ordered that in addition to the judgment of reversal, entered on the 8th inst., judgment be entered in favor of the defendant on the points reserved.