City of Harrisburg v. Shepler ( 1898 )

Opinion by

Rice, P. J.,

This case involves the construction of the 5th section of article 9 of the Act of May 23, 1889, P. L. 277, 303, and its application to assessments for paving done under contract. The section reads as follows :

“ Every contract involving an appropriation of money shall designate the item of appropriation on which it is founded, and the estimated amount of expenditure thereunder shall be charged against such item and so certified by the controller on the contract before it shall take effect as a contract, and the payments required by such contract shall be made from the fund appropriated therefor. If the controller shall certify any contract hi excess of the appropriation made therefor, the city shall not be liable for such excess, but the controller and his sureties shall be liable for the same, which may be recovered in an action at law by the contracting party aggrieved. It shall be the duty of the controller to certify contracts for the payment of which sufficient appropriations have been made.”

In order to have a correct understanding of the case it will be well to quote the pertinent provisions of the ordinance and contract under which the pavement was laid.

Section 6 of the ordinance reads as follows: “ At the expiration of thirty days after the commencement of the work, the city treasurer shall certify to the city solicitor the names of all the owners, if known, together with a full description of all the properties against which assessments have been made under this ordinance and remain unpaid in whole or in part, and the city solicitor shall enter liens for the said unpaid' assessments, and shall, from time to time, proceed to collect such assessments or parts thereof as are due and unpaid, according to law, with all accrued interest, cost and penalties imposed by law. The total amount of said assessments, or so much thereof as may be necessary, is hereby appropriated for the payment of the contract price of the work and other necessary expenses.” Section 3 of the ordinance directed that in advertising for bids the city engineer should give notice by the specifications “ that the contractor or contractors shall be paid the cost of paving said streets, by moneys to be collected by the city treasurer from the property owners whose land fronts or abuts on said street between the points above mentioned, and that the city of Harrisburg shall, under no circumstances, be held responsible for the payment of any part of the cost of said improvement except as to assessments upon non-assessable property, which assessments are hereby guaranteed by the city of Harrisburg, and except as to amounts actually received from such owners by the city treasurer for the contractor or contractors.”

Prior to the adoption of this ordinance the city councils had appropriated the sum of $1,500 for paving the street “ in front of city property.”

After stipulating that the city should pay “ out of the assessments made and levied for the purpose,” a certain price for every lineal foot frontage of pavement, etc., the contract proceeds as follows: “ It is understood that the payments as aforesaid shall be made as follows: First, out of the amount of the assessments paid into the city treasury, and when the fund is exhausted, then the city of Harrisburg will issue to the said contractor improvement bonds in the usual and proper form, with coupons attached, for the amount of assessments outstanding and amounts due the said contractor, which bonds shall rest alone upon and be payable out of said assessments and from no other fund. ... It is also understood that the said contractor shall accept the bonds and payments just described in full payment of the amount due the said contractor under this contract, and the city of Harrisburg shall not be otherwise liable under this contract whether said assessments are collectible or not.”

The work was completed in 1892, and in May, 1897, the .controller placed the following certificate on the contract: “I hereby certify that the item of appropriation on which the within contract is founded is contained in sixth section of ordinance 317, File of Select Council, 1890, where the total amount of the assessments is appropriated to pay for within contracted work.

“The total assessments amount to $47,709.97. The estimated amount of expenditure under this contract is $47,709.97, and said amount of estimated expenditure has been charged against said item of appropriation.”

By no process of reasoning, however ingenious, can the conclusion be avoided, that the contract in question was one “involving an appropriation of money.” Not only was an appropriation of $1,500 made for the paving of those parts of the street in front of city property, but the city’s share ($1,250.40) of the entire cost of the pavement contracted for was actually paid to the contractor out of the general funds of the city thus specifically appropriated for the purpose. This payment, as between the city and the contractor, was not gratuitous, but if the statutory conditions precedent to the formation of a valid contract had been complied with would have been legally enforceable. The city obligated itself to pay the contractor “ out of the assessments made and levied for the purpose; ” by the paving ordinance, the several amounts of these assessments were to be ascertained by apportioning the entire cost of the improvement “ among all the properties fronting on both sides of the street ” according to frontage; and by the same ordinance the city guaranteed the payment of “ assessments upon nonassessable property.” In determining .what assessments the city pledged for the payment of the cost of the improvement we must look to the ordinance which, intentionally, and for a manifest purpose, made no discrimination based on the ownership of the properties fronting on the street. Hence, whether or not as an abstract proposition city property is liable to assessment and lien for a local improvement is immaterial. The scheme under which the pavement was laid contemplated that a due proportion of its cost should be charged against such property fronting on the street, and the city contracted to pay it. The question is, not whether a lien could have been filed, but whether the city had power to contract, and did contract, to pay that proportion of the entire cost which would have been assessable against its property if such property had been owned by private individuals. This question must be answered in the affirmative; and, as its contract obligation could not be discharged without an appropriation of a part of its general revenues, it is clear that the contract necessarily involved an appropriation of money within the meaning of the section. This had been duly made, as we have seen, and under a proper construction of the statute the estimated amount of expenditure by the city for paving in front of its property should have been charged against that item of appropriation, and so certified by the controller on the contract. No attempt was made to comply with this condition precedent, until after the work was done, and without a proper certificate there was “ no efficacious force in the attempted contract as to any one: ” Erie v. Moody, 176 Pa. 478.

It is no answer to say that it does not appear on the face of the contract that it was founded wholly or in part on an appropriation of money; for, as the defendant’s counsel well says, that very omission is guarded against by the statute. “ Every contract involving an appropriation of money shall designate the item of appropriation on which it is founded.” If it was neither designated in the contract nor in the controller’s certificate, an additional reason is furnished for holding that the contract did not take effect as to the expenditure contemplated under the appropriation.

Coming now to the certificate of May, 1897, the learned judge was clearly right in holding that it was ineffectual to validate the contract in the particular under consideration; for the reason that it makes no allusion direct or indirect to the $1,500 appropriation. As the counsel for the city argue, with great force and clearness, one of the evils of municipal government in the past, was the practice of entering into contracts involving large expenditure of the city revenue, without a prior estimate of the cost, or a prior setting aside of the amount necessary to meet such cost, with the result that, after the expenditure was authorized by the execution of a contract and the contract was fulfilled, the municipality was left in financial straits because the cost of the work contracted for had not been counted before it was completed. This, undoubtedly, was one of the mischiefs to be remedied by the law which requires the controller to certify contracts for the payment of which sufficient appropriations have been made, and forbids him, upon the penalty of making himself and his sureties personally liable for the excess, to certify a contract which will involve an expenditure in excess of the appropriation upon which it is founded. And, in order to prevent the controller from evading his plain duty by a merely formal certificate, he is required to certify upon the contract the essential facts, namely, the estimated amount of the expenditure thereunder chargeable against the item of appropriation on which it is founded. He does not make or supervise the estimate but he is required to certify upon it the estimate made by the proper department according to the fact: Black v. Chester, 175 Pa. 101. A controller who complies strictly with the law camiot well go astray and certify a contract that is not entitled to be certified without putting on record the facts that will convict him of dereliction in the performance of his sworn duty. Construing the section with reference to the mischief to be prevented, of what efficacy is a certificate snch as that under consideration ? Clearly none, so far as the liability of the city for paving in front of its property was concerned; for, it might well be that the assessments referred to, including those upon city property, would be equal in amount to the entire cost of the pavement, and yet the “ appropriation of money ” for the payment of the city’s share of the cost be entirely inadequate for the purpose. The result in such a case would be that the contract would involve an expenditure of money out of its general revenues in excess of the appropriation upon which it was founded — ■ the very thing the legislature intended to prevent.

Conceding then that the contract never took effect as to the expenditure thereunder which was chargeable to the appropriation of 11,500, the next question is, whether it might not take effect as to that portion of the expenditure which in no way involved or was founded upon the appropriation referred to ? In other words, if the consideration of a municipal contract is divisible; the cost of one part of the work being chargeable to one item of appropriation, and the cost of the other part being-chargeable to another item, and the work has been performed in accordance with the terms of the contract, and has been accepted by the city, will the controller’s failure to charge the estimated expenditure for the -former part of the work, to the proper appropriation, and to certify the fact upon the contract, prevent it from taking- effect' in any particular, although as to the other part of the expenditure thereunder the controller did his duty? We state the question broadly, leaving for separate consideration the effect of placing- the certificate on the contract after the work has been done.

It is urged that the decision in Erie v. Moody, supra, conclusively answers this question in the affirmative, but we do not so understand that case. The decision was predicated on an ordinance that provided “ that the sum of forty-one thou sand, five hundred dollars be and the same is hereby appropriated to defray the cost of said improvement.” This was the only appropriation, as far as the evidence or the opinion of the court showed, involved in the contract. It was the plain duty of the controller to charge the estimated expenditure under the contract against this appropriation, and his certificate failed to show that he had done so. This was so clear that counsel were compelled to concede that the controller had not complied with the law, but argued, that, as the contractor had performed his part of the contract, and the pavement had been accepted by the city, a property owner could not set up the controller’s omission as a defense to the assessment charged against his property. The opinion of the Supreme Court was addressed exclusively to a consideration of this question, and having shown that the position taken by counsel was not tenable, nothing remained but to affirm the judgment for the defendant. The question we have stated was not raised, apparently, nor could it have been upon the facts in evidence in that case. The court was there dealing with a case in which, apparently, there was but one appropriation, against which the entire amount of expenditure for the pavement was to be charged; and we remark, parenthetically, there is nothing in the opinion to indicate, that, in estimating the expenditure, the portion to be met by assessments upon private property was not to be taken into account. This will be important in considering another feature of the case, but for the present it is sufficient to point out, that the question of the applicability of the section to a divisible contract founded on two appropriations was not raised or decided.

It is to be borne in mind that the present ease is not an attempt to recover for part performance of an entire contract. No such question arises in the case, and the decisipns upon that branch of the law need not be considered. There has been full performance, by the contractor, in accordance with the terms of the contract. It is to be observed further, that the thing to be done under the contract was not contrary to law, morals, or public policy; therefore no rule for the construction of the statutes based on either of these considerations requires us to hold, that the contract, as a whole, was illegal and void. Nothing short of a clear and unequivocal expression of legislative intent wonld justify so harsh a construction, where the consideration of the contract is divisible and the part involving, or founded on, an appropriation of money, is readily apportionable, and may be severed from the part that is not founded on, or does not involve the appropriation in any way. The same would be true, where one part of a contemplated expenditure is founded on one item of appropriation, and the other part on another item, as if, for example, there had been an appropriation for the cost of the pavement proper, and another appropriation for the cost of the curbing. Would the controller’s failure to indorse the proper certificate as to the estimated expenditure for curbing, enable the city to repudiate the contract in toto, and after full performance by the contractor, treat him as a mere volunteer, although, as to the estimated expenditure for paving, the certificate was in due form ? To state the question as applied to such a state of facts is to answer it; but the supposed case only illustrates a general principle which we think is applicable here, and has been thus stated: “ When the transaction is of such a nature that the good part of the consideration can be separated from that which is bad, the courts will make the distinction, for the common law doth divide according to common reason, and, having made that void that is against law, lets the rest stand: ” Hob. Rep. 14; 2 Kent’s Com. 467. How far this statement of a general principle, founded on reason and abundant authority, ought to be modified in the case of a contract involving an illegal or an immoral transaction, need not nowbe considered. Nothing,of that kind is in this case. It is analogous to cases arising under the statute of frauds, where the doctrine is generally held, that, if the contract be such in its nature that it may be divided, and the part not required to be in writing by the statute, may be enforced without injustice to the promisor, that portion of the agreement will be binding: Wood v. Benson, 2 Crompt. & Jerv. 94; 2 Tyrw. 93; 1 Pars, on Con. 455, and cases there cited. Hence, if the case rested solely on the failure of the controller to certify the estimated expenditure chargeable to the appropriation for paving in front of city property, we should hesitate to conclude, that that alone would render the contract void and of no effect as to that part of the engagement or undertaking that was not “founded” upon, and that did not “ involve ” that item of appropriation.

But, it is said the estimated cost of paving in front of private property ought to have been charged against the appropriation made for that purpose, and, as the controller’s certificate that he had so charged it, and designating the item of appropriation, was not placed on the contract until after the work was completed, the contract never took effect as to any one or for any purpose. This raises two questions: First, whether the contract as to the particular part of the work under consideration “ involved ” or was “ founded ” on an “ appropriation of money ” within the meaning of sec. 5, art. 9, of the Act of May 23, 1889, P. L. 277, 303; second, whether the controller could effectively place the certificate on the contract after the work was completed and accepted by the city.

Construing the ordinance and the contract together, three things seem to have been contemplated; first, an engagement by the city to pay for the cost of the improvement out of a fund to be raised by the city, by assessments upon abutting properties according to the frontage rule; second, an exemption from liability beyond the amount of such assessments and the cost of paving and curbing in front of city or other non-assessable property; third, an appropriation of the fund of money that would thus be raised by local and special taxation, to the payment of the cost of the improvement not provided for by the $1,500 appropriation heretofore referred to. The scheme did not contemplate a discharge of the city from liability by merely assigning to the contractors the claims against abutters. In other words, the contractors were not bound to take the claims in full payment of the contract price of the work, and collect them at their own risk and expense. The city became their debtor, and subject to a liability coextensive with the amount that it should actually collect from the assessments. It must be conceded that some of the arguments in favor of requiring strict compliance with the provisions of sec. 5, art. 9 of the act of 1889, where the cost of the improvement is to be paid out of city funds derived from general taxation, do not apply, with the same force, to a case where it is to be paid out of a fund to be raised by taxation of property specially benefited, and the city is not to be liable beyond that amount. Nevertheless, we question whether it would not be doing violence to the language in which the will of the legislature has been expressed, to say that this fund, as it accumulates in the hands of the city treasurer, is not city money; that a prior appropriation of it to pay the cost of the improvement contracted for is not an appropriation of money within the meaning of the act; that no estimate of the probable cost of the improvement need be made or charged against such an appropriation; and, therefore, that the controller has no duty to perform with regard to such a contract. Notwithstanding the able opinion of the learned judge of the common pleas in support of this construction, we deem it advisable to consider the case upon the assumption that the statutory provision applied. We pass then to the second question.

It was held in Erie v. Moody, that the omission of the controller to charge the estimated expenditure against the proper item of appropriation, and to certify the fact on the contract, made the case analogous to Reilly v. Philadelphia, 60 Pa. 467, where the work was let to a contractor, not selected by a majority of the lot owners, although the resolution under which the paving was done provided that the contractor employed to do the work should be selected by them. Williams, J., delivering the opinion of the court in the last cited case said: “ His selection by a majority of the lot owners, and his employment by the department of highways were essential requisites in order to give him authority to do the work, and the right to collect the cost thereof from the owners of property in front of whose premises it was done. If he was not selected by the lot owners, and if he did not contract with the department of highways, to do the paving, he was a mere volunteer, and is not entitled to recover from the city or the lot holders the cost of the paving.” This decision was followed in City v. Stewart, 1 W. N. 242, and Phila. v. R. R. Co., 88 Pa. 314, but in December, 1878, an ordinance was adopted, ratifying and approving all such contracts “ under which work had been done,” and in City v. Hays, 93 Pa. 72, the question as to the effect of this ratification arose upon demurrer to the plaintiff’s replication. It was argued there, as it is here, that it could not, as against a lot owner, validate the contract, and make that a good lien which was none before, but it was held by the Supreme Court that the claimant was entitled to judgment. Mr. Justice Gobdoít, who delivered the opinion of the court said: “ The case of Phila. v. R. R., 88 Pa. 314, did not turn upon any want of power in the city to make the contract as it was made, but on the fact that its agent, the highway department, had exceeded its authority in making the contract with O’Rourke, notwithstanding the fact that a majority of the property owners had refused to indicate him as their choice, therefore the contract could not. be enforced against the lot holders, for the reason that it was not binding on the city. It was on this ground alone, and not because of any equity in themselves that they were enabled to resist payment. 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. Now, whether it was proper to do so or not, was á question for them and not the property owner. His right was to have a good pavement in front of his premises, and personally he had no other right. When, therefore, by the ordinance of December 3d, 1878, the councils ratified the contract with O’Rourke, the city became bound, and the defense by the property owners, on that ground, was, of course, no longer available.”

Whether we pursue, to its legitimate conclusion, the analogy suggested in Erie v. Moody, or investigate the question upon original grounds, it seems to us, that a result may be reached, which will involve neither a disregard of the provisions of the act of 1889, nor a forced repudiation by the city of a contract carried out in good faith by the contractor, and conferring benefits of which the city and the abutting lot owners are in the full enjoyment. There was no want of power in the city to make the improvement and to assess the cost upon the abutting properties; no irregularity in the passage of the ordinance or in the selection of the person to do the work; and no defect of form or substance in the execution of the contract. We remark, in passing, that the defendant was one of the petitioners for the improvement to be made in the mode and at the price contracted for, and has paid four assessments without objection. Conceding that he is not estopped by these acts to say, that the contract never went into effect, it is plain, that he has no special equity which would entitle him to allege that as a defense, if the city could not. But, to proceed with the discussion of the general question as to the validity of the contract as between the parties to it, there was a sufficient appropriation to meet the proposed expenditure and no act necessary to give the contract full effect remained unperformed except the bare indorsement of the controller’s certificate. Whatever may be the nature of his duties in other particulars, his duty in this regard is purely ministerial (Com. v. George, 148 Pa. 463; Black v. Chester, 175 Pa. 101) ; and while performance of this statutory duty cannot be waived by the city officers, yet if after the certificate has been placed on the contract — it being entitled to certification at the time of its execution — the city ratifies it, we think, upon the just principle of City v. Hays, it would be bound. See also Steckert v. East Saginaw, 22 Mich. 104; Logansport v. Crockett, 64 Ind. 319; 1 Dill. Munic. Corp. sec. 291, and cases there cited. And if, as between the city and the contractor, the former could not deny liability upon the ground that the latter was a mere volunteer, neither can the property owner. His rights rise no higher than the city’s. That the city has ratified the contract is evident from the fact that it is now here endeavoring to enforce this claim in order that it may fulfil its just obligations under it. See Shiloh Street, 165 Pa. 386; Amberson Ave., 179 Pa. 634; Silsby Mfg. Co. v. Allentown, 153 Pa. 319.

We conclude, therefore, that the act of the controller in certifying the contract after the completion of the work, where he had full authority to certify it before the work began, was, under the circumstances of this case, effective to give it validity as against the defendant.

As to the defendant’s objection to the entry of judgment based on the fact that the ordinance directs the city engineer to assess the cost of paving, without directing him to report Iiis schedule to the councils for approval, we adopt the opinion of the learned judge of the common pleas in the case of Harrisburg v. Trego, 7 Pa. Superior Ct. 511.

The order of the court below directing judgment for the defendant, and striking off the lien, is reversed; the lien is reinstated, and judgment is now entered in favor of the plaintiff, for the sum of $92.67.