McKnight v. City of Pittsburgh ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court,

It is not open to question but that the rule insisted upon by the counsel for the plaintiffs in error, that a-municipal corporation, in the grading and paving of its streets, must conform strictly .to the power conferred upon it by the legislature,, is correct. This question, however, is not involved in this case, for about the power of the city councils to order the grading and paving of the street, which is the subject of the present controversy, there is not the least doubt. By>the Act of January 6th 1864, they were empowered to grade or regrade, pave or repave or macadamize any street, lane or alley within the city. Their powers are therefore ample, and the time when and the order in which these powers may be exercised rests in their discretion. ' Such being the case, it follows that their order to the city officers to do any particular act, ^hich they themselves ’ are empowered to do, necessarily implies all powers necessary for the proper execution of such order. Hence,7 where the engineer is directed to let a contract for the paving of af street, if there has been no previously established grade, the en^ j gineer may himself adopt one, for ordinarily grading is a precedent; necessity to paving.- In fact, ’at the time of the adoption of the ordinance for the grading and paving of Ridge street, there was no established grade; nevertheless, the city engineer was ordered to advertise for proposals; but as bids could not be intelligently made without surveys, plans and grades for the work proposed, we must presume that the ordinance empowered him to do these things, without which the intended work could not be accomplished. Were there, then, nothing more, this case would present no difficulty, for the act of the city engineer in the adoption of a grade for the street in question must be taken as the act of the councils. 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 by 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. 1’t is indeed but 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.

In this the case is wholly unlike Addis v. The City of Pittsburgh, 4 Norris 379; for there it was held that neither the city nor its officer had the power which he attempted to exercise, to wit, the power to make an agreement for paving and grading on* the rule of a quantum meruit; hence, such an. agreement was held to be void and not binding upon the city.

In the case in hand, there is no question as to the power of the councils to have made just such a contract as was made. The only irregularity occurred in the adoption by the engineer of a grade different from that ordained by the ordinance of December 7th 1874; everything else was regular, and when the irregular grade was subsequently adopted, and the work which was done under the contract approved and accepted by the city, the party having the full power so to do, we cannot understand how any third person or persons can be permitted to intervene to destroy a contract so made and approved.

Furthermore, there was no objection made by Mrs. Denny or her representatives to the grade, or to the work during its progress. This work was undertaken at her instance, among others, and for the benefit of her property, and her agents actively aided the contractor by hauling for him and furnishing material. Under such circumstances, she was, and consequently her representatives now are, estopped from controverting the acts of the city and its contractor, even though the fact had been that the contract under which the grading and paving was done was void, for want of power in the city to execute it: Bidwell v. The City of Pittsburgh, 4 Norris 412.

The judgment is affirmed.