Ephrata Water Co. v. Ephrata Borough , 1901 Pa. Super. LEXIS 97 ( 1901 )

Opinion by

Rice, P. J.,

The first question raised in this case is as to the validity of a borough ordinance passed prior to the Act of May 23,1893, P. L. 113, signed by the presiding officer of council, regularly transcribed in the ordinance book, there signed by the presiding officer and attested by the secretary, and afterwards duly published, but not signed by the burgess after being transcribed in the ordinance book. It is to be noted that we are speaking of a case arising in a borough where, at the time of the passage of the ordinance, the burgess was not authorized to act as a member of council and to preside at its meetings, and had no veto power.

1. The 5th and 6th sections of the general borough law of April 3, 1851, P. L. 320, relate exclusively to the powers and the duties of the “ chief burgess or other principal corporate officer.” The same officer is referred to in all these provisions. The officer who has the power, and upon whom is imposed the duty, to preserve order and maintain the peace of the borough, to enforce the ordinances and regulations, to exact a faithful performance of the duties of officers appointed, is the officer whose duty it is “ to sign the several by-laws, rules, regulations and ordinances adopted, after they shall have been duly and correctly transcribed by the secretary.” There is no more authority for holding that the presiding officer of council is the officer here referred to than there is for holding that the other powers and duties enumerated in these sections may be exercised and performed by him. No other officer being designated as such in the charter of the defendant borough, the chief burgess is the “principal corporate officer ” within the true intent and meaning of the act. In case of his absence or inability or of a vacancy in the office, the 7th section declares who shall “ exercise the like powers and perform the like duties.” He for the time being becomes the principal corporate officer, but under no circumstances are these powers and duties devolved by mere operation of law upon the presiding officer of council. The 8th section, it is true, seems to contemplate a signing of the ordinance by him, but we are not convinced that this was intended as a substitute for the signing by the chief burgess directed in the 6th section.

2. Assuming, then, that it was the duty of the burgess to sign the ordinance, are the ordinance and the contract made pursuant to it void ? If it had been necessary to submit the ordinance to the burgess for his approval or disapproval, a different case would be presented. Kepner v. Commonwealth, 40 Pa. 124, Marshall v. Com., 59 Pa. 455, Waln v. Philadelphia, 99 Pa. 330, and Fuller v. Scranton, 2 Cent. Repr. 788, would then apply, because in such a case the legislation is not complete until it has received the approval of the chief executive officer, or what is equivalent thereto. But under the statute in force when this ordinance was adopted, this was not required. The signing by the burgess was not part of the legislative act. He had no authority to prevent the' legislation becoming effective by withholding his approval. His duty was to sign, not to approve, and .was purely ministerial. “ The duty of signing is simply intended to give greater authenticity and certainty to ordinances which may be intended to continue for years, by requiring the attesting signature of the chief officer of the corporation. ... So that his signature, not being required till after the proceeding is adopted and regularly transcribed by the officer of the council, shows the preliminary duties to have been complied with, and becomes thus added evidence to the public, certifying that the act is duly performed, and has become a law of the corporation: ” Judge Conyngham in In re Burgess, etc., of Wilkes-Barre, 8 Luz. Leg. Reg. 113. It is, therefore, not a mere work of supererogation. It is a duty owed to the public. But the question is, not whether a member of the public may refuse obedience to an ordinance lacking this additional authentication, but whether the borough can set up the neglect of its own officer of this purely ministerial duty as a defense to an action on a contract, within the scope of the corporate powers, duly authorized by the ordinance, carried out in good faith by the other party, of which the borough has received the benefit, and under which nothing remains for it to do but to pay the stipulated consideration. We are of opinion that in such a case the omission of the burgess to sign the ordinance after it was duly adopted is not a fatal objection to the admissibility of the ordinance in evidence, or to the plaintiff’s right of recovery upon the contract. To sustain this proposition as applied to a contract for the erection of hydrants and supplying water thereto for the purpose of extinguishing fires, it is not necessary to go as far as the case of Seitzinger v. Borough of Tamaqua, 187 Pa. 539, would seem to warrant.

3. According to the uncontradicted evidence these hydrants were of the pattern and design selected by the borough council, and were located at such places as the committee appointed by council directed. The hydrants and the water to supply them when needed were furnished by the plaintiff at the instance and request of the borough council, and the borough has had the protection from fires they were intended to afford. The plaintiff was not a mere volunteer. There is no room for inference that the hydrants and the water to supply them were furnished gratuitously, or that the borough council so supposed. To permit it to escape wholly from liability for the service rendered at its instance before any notice was given to discontinue it would be grossly inequitable and unjust. It would not be permitted in the case of an individual or a private corporation, and we are not required to hold that an equal obligation to do justice does not rest upon a municipal corporation. As a general rule, where its charter or the general law prescribes the mode in which a municipal corporation may contract, it must be shown that the contract or obligation sought to be enforced was made or incurred in the mode thus prescribed. But in the absence of such provision, as is the case here, municipal as well as private corporations may, in many cases, be bound by implied contracts within their corporate powers to be deduced by inference from corporate acts: 1 Dillon’s Mun. Corp. (4th ed.) sec. 459; Pittsburg v. Biggart, 85 Pa. 425; United States Water Co. v. DuBois, 176 Pa. 439 ; Boro. of Carlisle v. Carlisle Gas & Water Co., 3 Cent. Repr. 584; Hyndman Water Co. v. Hyndman Boro., 7 Pa. Superior Ct. 191; San Francisco Gas Co. v. San Francisco, 9 Cal. 458. Under the circumstances proved on the trial of this case, there was an implied contract to pay for the service actually rendered, even if it be admitted, which we do not admit, that the written contract was not binding.

4. We have given due consideration to the argument of the appellee’s counsel upon the questions of the validity of those sections of the ordinance relative to the levying of a special tax and to the purchase of the plaintiff’s works by the borough, but conclude that they do not necessarily arise in this case. Therefore, we express no opinion upon them.

Judgment reversed and a venire facias de novo awarded.