Philadelphia v. Jewell

Opinion,^*

Mr. Justice Mitchell:

The contract between Peters and the city of Philadelphia contained no stipulation as to the time within which the paving was to be completed, the space left for that purpose in the printed form of the contract not having been filled in. But when the contract was made the ordinance of May 11, 1872, was in force, which provided that all contracts for paving should contain a condition that the work should be completed in two years from their date, and in default thereof the contract should be void: Ord. 1872, p. 199. This ordinance was part of the city law, and in his agreement the contractor expressly stipulated to execute and finish his work in accordance with all the ordinances of the city relating to paving. The stipulation to finish the work within two years from the date, must therefore be considered as written into the contract. The work was not finished in two years, and therefore the contract became void in July, 1875. It appears by the case stated that part of Penn street was paved in 1873, and nothing further was then done under the contract until 1879. The city, of course, might have treated the contract as void, and refused it further recognition; but, on December 3, 1878, an ordinance was passed entitled “ An ordinance to repeal an ordinance in relation to contracts for street paving,” which repealed an ordinance of December 31, 1862, and then proceeded: “And all contracts for paving streets entered into by the department of highways, under which work has been done under resolution or ordinance authorizing the same, be and are hereby ratified and approved:” Ord. 1878, p. 213. The ordinance of 1862, thus repealed, provided only for the publication of notice, by the applicants for contracts to pave, of the time and place where property owners might appear and object, and had no relation to the time of completion of the work: Ord. 1862, p. 487. If the question were distinctly raised here, and were new, we might find some difficulty in holding this ordinance of December 3,1878, applicable to contracts made void by the ordinance of 1872, which has reference to an entirely different subject-matter from that of 1862. But the ordinance has been before this Court twice, and though this point was not expressly raised, yet the construction of the ordinance as a general ratification- of all forfeited contracts for paving, which come within the description, has been sanctioned and ought not now to be disturbed: See Philadelphia v. Hays, 93 Pa. 72, and Pepper v. Philadelphia, 114 Pa. 96. It may be taken as settled, therefore, that thg contract with Peters was revived and ratified by the city in its ordinance of December 3, 1878, and that the work done by Peters subsequently was done under the contract.

In the interval, however, from 1875 to 1878, while the contract was void, or at least dormant, the ordinance of April 24, 1877; Ord, 1877, p. 59, was passed, fixing the price of rubble pavement for all new paving after the passage of the ordinance at $1.10 per square yard. The price in Peters’ contract of 1873 was $1.50 per square yard.

It is beyond question that, in reviving and ratifying the contract, the city might have made an express condition that the work thereafter to be done under it should be done at the reduced price. Appellant’s counsel has argued strenuously against the power of the city to change the terms of contracts once made, and also against the power of courts to introduce new terms by construction. All this is fully conceded, but the argument overlooks the fact that the appellant’s contract had become void by his own default, and if it was revived as an act of grace by the city he must accept the revival upon such terms as the city imposed. The city, however, made no express conditions, and we have therefore to consider the effect of the omission to do so, and also the effect of the ordinance of 1877 upon the rights of the appellees.

Actions by a municipal corporation to the use of a contractor who has done the work, against the owner of property charged with the payment for it, are a species of tripartite contests, unknown to the common law, and presenting some difficulties in procedure under its forms. The general rule, even in Pennsylvania where equity is part of the common law, undoubtedly is that the rights of the legal plaintiff only can be regarded and must prevail, but the rule has as many exceptions as the principles of equity require for their enforcement. The authority of municipal corporations to impose the cost of paving upon the property fronting on the street paved, is a part of the power of taxation, and inherently is exercisable without regard to the property owners’ consent, and at the sole discretion of the taxing body. The vital necessities of government do not in general permit a review of its exercise of the prerogative of taxation by courts or juries; but the taxing authority may, in its discretion, permit such a review within specified limits. In the class of cases now under consideration it has done so. The right of the city to order the paving of its streets, to determine the kind of pavement, the manner of its doing, the terms of the contract, etc., is independent of the property owner’s judgment or consent: Philadelphia v. Brooke, 81 Pa. 23; Philadelphia v. Burgin, 50 Pa. 539; Hutchinson v. Pittsburgh, 72 Pa. 320. But, on the other hand, when the property owner has had certain rights conceded to him, either by statute or by municipal ordinance, the courts will allow him to assert them against the city itself, as well as against the contractor to whose use the city sues: Reilly v. Philadelphia, 60 Pa. 467; Pepper v. Philadelphia, 114 Pa. 96. Appellant’s argument asks, “ Has a property owner who is no party to the contract any rights superior to those of the parties themselves ? ” The answer is, Yes, if the law gives them to him. An entirely analog’ous illustration is that of a mechanic’s claim. A contractor has the power to contract debts to material-men and others which shall be a lien against his principal’s house. As between himself and his sub-contractor, he may bind himself to pay any price he pleases, but, as between the sub-contractor and the owner, the charge cannot exceed the fair market price. The same defence is given to property owners in the city of Philadelphia as against municipal claims for paving, etc., by the act of April 19, 1843, P. L. 342, and by various other acts and ordinances. The city had the right to revive and ratify the contract with Peters without regard to the appellees’ consent: Philadelphia v. Hays, 93 Pa. 72; and it had also the general right to fix the price to be paid for paving. But the act of March 30, 1866, P. L. 354, which authorizes the councils to fix the rate, requires them to do so by ordinance from time to time, and this means by general ordinance. At the time the contract was revived and the work done, the city had by general ordinance fixed the price of such paving at $1.10 a yard. In the face of that ordinance the city could not, by a new contract, have imposed any higher rate bn the appellees for work to’ be done thereafter, and the spirit, if not the letter, of the act of 1843 equally prevents the city from making in effect such a new contract, by the revival of an old and void one, to the detriment of those interests of the property holder meant to be protected. The act of 1843 allowed the property owner to show in defence that the price charged for the work is “ greater than the value thereof; ” but, this having been found to be inconvenient in practice, subsequent acts changed the system so far as to permit the city to fix the charge which should not be questionable: See Lea v. Philadelphia, 80 Pa. 315. The city now collects from the property owner, not the value of the work, but its cost as fixed by ordinance; and this mode of ascertaining and -fixing the cost is sustained on the ground of the public necessity and convenience, inherent ill all rational taxation, that there should be a settled, ascertained, uniform, and practicable method of computing the amount due by the tax-payer. The present case stated shows that the contractor’s rights under his contract had been forfeited; that, at the time of the revival by councils, the legal cost of such paving was fixed by ordinance at $ 1.10; and we are- of opinion that such legal cost was all that the appellees could be compelled to pay, either under a new contract or under an old one revived after forfeiture.

Nor is it reasonable to suppose that the councils intended to sanction any higher charge. The appellant’s contract was not revived by name or specifically in any way. It got its new life by coming within the general terms of the ordinance of December, 1878. When that ordinance was passed, councils knew that the legal charge had been fixed by the ordinance of April, 1877, and may well have supposed that all subsequent work done under revived contracts, as well as under new ones, would be done under the terms of that ordinance. Their right to have -made an express provision to that effect is beyond question, and it is a reasonable construction to imply that condition in the ordinance as actually passed.

The judgment of the court below, having been entered for an amount based on the price under the ordinance of 1877, was correct.

Judgment affirmed.

On June 4, 1890, a motion for a re-argument was refused..

* It should be stated, to prevent confusion, that the opinion in this case, printed in 26 W. N. 150 and in 19 Atl. R. 947, was subsequently modified as printed in this report.