Ruppert v. Mayor of Baltimore

Bartol, J.,

delivered the opinion of the majority of the Court:

The decision of this case depends upon the' true, construction of Ordinances 1850, No, 40, and 1355, No. 11. The former relates to ordinary wells and pumps, and the latter to Artesian wells. They are to be construed together; the provisions of Ordinance No. 40, of 1850, being expressly made “applicableto the construction of Artesian wells as fully as to ordinary wells and pumps.”

This ordinance, (1850, No. 40,) after prescribing the preliminary steps to be taken to authorize the City Commissioner to contract for having a well or pump made, directs that when it is completed, “ he shall apportion the expense on all the assessable property that, in his judgment,, is benefited by the erection of said pump or well;” and then goes on to provide for the collection of the amount so assessed, and for the payment of the contractors during the work. No provision is made- in this ordinance for the case of a failure to obtain water fit for useprobably such a contingency was considered too remote to be provided against; if it should happen, however, while it is very clear no assessment could he made hy the commissioner under the ordinance, because in such case no property would he benefited thereby, we see no reason why the city would not he responsible to the contractor for the work done, unless there should be something in the terms of the contract to exempt it from liability. The samo principle would apply where the contract is for an Artesian well, if it. were not for the terms of the Ordinance of 1855, No. 11, by which the case of a failure is expressly provided for, in these words: “The petitioners to he responsible for all expenses that may occur in sinking said Artesian wells, if a failure should take place in the attempt to procure water.”

Upon the true construction of this clause, the whole case turns; here there was a failure to procure water, and the work was abandoned.

The appellants contend that the city is liable to them for' the work done, and that the responsibility fixed Upon the petitioners is to the city. If so, in what manner is the city to enforce that responsibility? Not, certainly, hy an assessment upon their property, to be made by the Commissioner ; he has no authority to make such assessment, except for benefits resulting from the completion of the well; besides, by the terms of the ordinance, the responsibility of the petitioners is a personal responsibility, not one imposed upon their property, to be enforced by assessment, and collected as a tax; there is no power to make such assessment under the ordinance.

If, then, the city be liable to the contractors for the work, the effect would be to compel the city first to pay the expenses, and then to collect the money by a suit against the petitioners. This, in our opinion, is not the meaning of the ordinance. When it declares that the petitioners shall be responsible, this is equivalent to saying that the city shall not be responsible.' In passing it, the Mayor and City Council seemed to have considered that, unlike sinking an ordinary well, the attempt to construct an Artesian well was an enterprise attended .with great risk and uncertainty;, this risk they were nnwilling to assume, and put it upon the petitioners, the persons at whose instance the work is undertaken, and, in case of failure, make them responsible for alh expenses that may occur.

When the well is completed, that is, when success has been achieved, the expense is to be apportioned and assessed by the City Commissioner on the property benefited,, and collected as a tax thereon; but if a failure take place in the attempt to procure water, the petitioners are responsible, not td the city, but directly to the contractors. They sign the petition with the knowledge of the risk and responsibility so cast upon them; the privity between them and the contractors ■ is created by the words of the ordinance, for every contract made by the City Commissioner under the Ordinance of 1855, must be construed as if this clause were inserted in it.

It follows, from these views, .that in our opinion there was no error in the ruling of the Superior Court upon the prayers, and that the judgment ought to be affirmed. It is unnecessary to express any opinion upon the construction of the contract sued on; assuming that it was fully performed on the part of the appellants, without meaning, however, so to decide, still, according to our construction of the ordinances, this action could not be maintained; and for the same reason it is immaterial to decide the second bill of exceptions; even if there was error in admitting the evidence objected to, it would not be ground for reversal.