In re City of Allegheny , 1898 Pa. Super. LEXIS 19 ( 1898 )

Opinion by

Smith, J.,

The question here involves the validity of an ordinance under which certain street improvements were made, the cost of which the city seeks to collect from the appellants. The legislative proceedings o-f the city councils relate to two ordinances. The first, introduced September 29, 1896, is as follows :

“ An Ordinance authorizing the grading, paving and curbing of Fulton street, from Adams street to Hudson street.. Sixth ward.

“ Section 1. Be it ordained, etc., That the Department of Public Works be and it is hereby authorized and directed to advertise for proposals for grading, paving and curbing of Fulton street, from Adams street to Hudson street, Sixth ward, in accordance with specifications prepared by said Department. The Committee on Public Works is hereby authorized to report an ordinance awarding the contract for said work to the lowest responsible bidder. The cost and expense of said improvement to be assessed and collected in accordance with the provisions of the acts of assembly in such cases made and provided.

“ Section 2. That so much of any ordinance as may conflict with or be supplied by the foregoing, be and the same is hereby repealed.”

This ordinance was duly published for ten consecutive days within a reasonable time after its introduction, but no further steps toward its passage seem to have been taken. It originated in the city councils by virtue of the Act of May 22, 1895, P. L. 105.

In pursuance of the provisions of this ordinance, the director of public works was authorized to advertise for proposals for grading, paving and curbing Fulton street. This was done, and proposals were received and opened. Thereupon the following ordinance was sent to councils by the clerk of the committee on public works.

“ An ordinance awarding a contract for the grading, paving and curbing of Fulton street from Adams street to Hudson street, Sixth ward, and providing for assessment and collection of the cost and expense thereof.

“ Section 1. Be it ordained, etc. That the director of the department of public works be and he is hereby authorized and directed to enter into a contract with Thomas Carson, the lowest responsible bidder, for the grading, paving and curbing of Fulton street from Adams street to Hudson street, Sixth ward, according to specifications, for the sum of six hundred forty-seven dollars and seventy-five cents (1647.75), as per his proposal. The cost and expense of the same to be assessed and collected in accordance with the provisions of the acts of assembly in snch cases made and provided.

“ Section 2. That so much of any ordinance as may conflict with or be supplied by the foregoing, be and the same is hereby repealed.”

This second ordinance was not advertised or published after its introduction, as required by the act of May 22, 1895. It was otherwise duly passed, having received the affirmative votes of three fourths of the members of each-branch, and was approved by the mayor December 22, 1896.

It is contended on behalf of the city that these ordinances are identical; that the second is in furtherance of the manifest purpose of the first; that the terms of the contract for paving were merely a matter of detail, not changing the'subject, and that these were in. fact inserted in the original ordinance. A comparison of the ordinances will not sustain this view. The title of the first relates to “ the grading, paving and curbing,” and its most important section authorizes the department “ to advertise for proposals for grading, paving and curbing,” and “ to report an ordinance awarding the contract for said work.” The second is entitled “ An ordinance awarding a contract for the grading,” etc.; and its principal section authorizes the department “ to enter into a contract with Thomas Carson, the lowest responsible bidder, for grading,” etc. The first ordinance clearly called for a second, and this is supplied by the ordinance of December 22, 1896. The first does not in terms or in form, as printed for us, indicate any place wherein the subject-matter of the second could be inserted. Each is.distinct and complete in title and context. Taken together they sufficiently cover the subject-matter of both; considered separately, the provisions of one, could not be held to include the terms or substance of the other. In order to complete the work commenced by the first ordinance, its terms explicitly call for a second. It is not pretended that the first was passed or the second advertised as required by law. Hence neither can be sustained. That the first is void until finally passed by the councils and approved by the mayor, is a proposition that needs no discussion. The failure to advertise the second is likewise fatal. ■ The Act of 1895, P. L. 105, conferred upon cities the power to make street improvements and charge the cost thereof against the abutting properties, without regard to the wishes of such owners. Formerly those improvements were instituted by the petition of the property owners themselves. The power of the cities to inaugurate the proceedings is to be exercised by an ordinance duly passed for that purpose. This requires, inter alia, that it “ be published in each official newspaper of such cities ten days immediately following the introduction thereof.” It is admitted that this was not done as to the second ordinance. This publication is mandatory and a condition precedent to its lawful enactment. We need not pursue the subject.

The action of the department of public works in advertising for proposals, and the submission of the second ordinance by the committee on public works before the adoption of the first ordinance authorizing it, were illegal and void. The assessment of damages by the viewers under the second ordinance and all proceedings connected therewith are also void.

The decree of the court below is reversed, the exceptions to the report of viewers are sustained and that report is set aside at the costs of the appellee.