Waln's Heirs v. City of Philadelphia ex rel. Armstrong ( 1882 )

Mr. Justice Gordon

delivered- the opinion of the court, February 20th 1882.

The defendants are owners of the property on both sides of 25th street, and between Locust and Manning streets.

On the 23d of November 1869, tbe city councils, by ordinance authorized the construction of a three-feet sewer from Locust street to the south side of Manning street. This work was executed in accordance with the directions of said ordinance, by "William Armstrong, the use plaintiff, as contractor. No fault seems to have been found with the character of the work, nor is the general power of the city to charge the cost of such work upon the adjacent property, under the provisions of the Act of March 27th 1865, called in question.

Nevertheless, several exceptions are taken by the defendants to the ruling of the learned judge of the court below, of which, so far as they have been assigned according to rule, we must take notice. These exceptions relate, 1. To the admission of a certain item of evidence and the rejection of another. 2. To the power of the city councils to order the constrution of this sewer. To particularize: the complaint is, first: “That the learned judge below erred in admitting in evidence the report of the sub-committee of the board of surveyors of November 23d 1869, with the resolution annexed. That the learned judge below erred in refusing to admit in evidence the resolution of the city councils, instructing the chief commissioner of highways not to proceed with the sewer in question until the property owners along the line could be heard in opposition to the same.” We may premise the examination of the points thus set forth, by the statement that the main question in this case is one involving the power of the city councils to order the construction of the sewer for which the assessment in controversy was made. If they had such power, everything else appearing to be regular, the judgment of the court below was well rendered, and the defendants’ complaint is without merit and must be dismissed. As we said in the case of McKnight v. City of Pittsburgh, 10 Nor. 273, “It is indeed but a question of power; that being determined, all is determined.” Now, as under the Act of 1869, before the councils, by ordinance, could order the construction of the branch sewer in question, the approval of the board of surveys was necessary, it becomes important to inquire whether such approval is found in this case. The defendants contend that not only does no such approval appear, but that any prima facie presumption that might otherwise arise in favor of the validity of the ordinance, is rebutted by the fact that the contrary is made apparent by the records of the board of surveys. That in fact the recommendation of the board was for the building of a sewer from Locust to Spruce street, and not, as in the ordinance, from Locust to Manning street.

In order to determine the rectitude of this contention, we must necessarily have recourse to the testimony which has been laid before us.

First, then, we have the petition for a sewer on the line of Twenty-fifth street, between Locust and Spruce streets. Second, the report of the committee to whom this petition was referred by the board of surveys, which reads as follows:

“Philadelphia, November 1st 1869. To the President and Board of Surveys. Gentlemen: — Your committee, to whom was referred the within application for a sewer, report that the details of said sewer, as asked for, will be as follows, viz: the length, 350 feet; shape, circular; size, 3 feet; building front, 600 feet; legal deductions, 81 feet 4 inches; location of inlets, south-east corner of Twenty-fifth and Manning streets; manholes, one. This sewer is required for surface and water-closets. Your committee offer the following resolution. Signed, D. H. Shedaker, John JEL "Wolf, Edward A. Roberts, Committee. Resolved, that the board of surveyors recommend to the councils the construction of a three-feet brick culvert on the line of Twenty-fifth street, from Locust street to the south side of Manning street.”

About the regularity of this part of the evidence there is little or no doubt, but the pinch of the case, as the defendants think, is found in the evidence proving the adoption of this resolution by the board of surveyors; and that evidence is as follows: George Sturgess, being affirmed, said : I was the secretary of the board of surveyors in the year 1869 ; I have the original minutes of the resolution as to the sewer on Twenty-fifth street, as passed by the board; I here produce it; it is in lead-pencil; it is the rough minutes of the proceeding of the board, made at that time. From this is made up and copied out the clean minutes, which are written in ink in the regular minute-book.

The plaintiff then offered in evidence the rough minute as follows: “ Stated meeting of the board November 1st 1869. Petition for sewer on Twenty-fifth street, between Locust and Spruce streets. Referred to Messrs. Shedaker, Roberts, Wolf, committee, who reported resolution recommending a three-foot sewer. Agreed to.”

The witness then continues : “ I have and also produce, the original draft of a. resolution, submitted by a sub-committee of the board of surveyors, to whom the question of the sewer had been referred, and annexed to their report to the board, recommending the construction of the sewer on Twentli-fifth street, from Locust to Manning streets. This was the resolution offered in the board on the day named, and passed by the board, and is that to. which the lead-pencil minutes refer. Í am also clerk of the survey committee of city councils, and as such clerk drew the ordinance which was reported from that committee and passed by councils. I made the draft from the resolution of the subcommittee of the board of surveyors.” This is the evidence to which exception has been taken, but to us there appears nothing in it exceptionable. Surely the report of the sub-committee, with its resolution appended, was part of the official records, and the accompanying minutes identify that report by the names of the persons who made it. If this he so, then we have all that is necessary to support the ordinance directing the construction of the sewer from Locust to the south side of Manning street. At the very most, however, nothing but obscurity can be charged against these minutes ; a doubt as to what was the character of the report to which they refer. But, surely, it was altogether proper to remove that obscurity and resolve that doubt by a witness who could produce and identify the original report. Certain it is, that the papers of a county commissioner’s or treasurer’s office, or even those constituting the records of a court, may be thus produced and identified, and there is no imaginable reason why those belonging to the board of surveys should not be subject to the same rule.

Thus fall the defendants’ first and ninth assignments, and as these are the ones principally relied upon by the plaintiffs in error, those that remain require but little comment. The second assignment charges the court below with error in refusing to admit in evidence the resolution of the city councils instructing the chief commissioner of highways not to proceed with the construction of the work until the property owners could be heard in opposition to the same. But according to the case of Sower v. The City, 11 Ca. 231, a resolution of councils is but another name for an ordinance, which, in order to have the force of law, must be signed by the mayor, published and recorded. As, however, the paper offered in evidence was wanting in all these requirements, it was properly rejected.

Finally, the complaint, that neither by the petition, nor by the report and resolution of the board of surveys, did it appear that the sewer was necessary for the public health, comfort or convenience, comes to nothing. This provision of the act addresses itself to the judgment of the councils exclusively. Presumptively they acted for the public good, but if they did not, we cannot go back of their action and sit in judgment upon their motives, or search out the causes that moved them.

The judgment is affirmed.