Silsby Mfg. Co. v. Allentown

Opinion by

Mr. Justice Williams,

This action was brought to recover the price of a set of flues for use in a Silsby fire engine owned by the city of Allentown. The chief engineer of the fire department of that city discovered that the flues in the Silsby engine known in the department as “ Good Will Steam Fire Engine, No. 3,” were worn out, and that the engine was for this reason useless, and must remain so until new flues were obtained and put in place. He reported this fact to the fire committee of the city councils and was directed to order new flues from the plaintiff at once, as they could be obtained in no other manner. He did so. Tbe flues were promptly supplied, were placed in the engine by local mechanics, and have been in use ever since. When councils next met they were informed of the action of their fire committee and being satisfied with that action they made provision for the payment of the debt incurred for the flues and the labor by placing in the contingent fund a sum sufficient for that purpose. The controller however refused to issue the warrant authorizing the actual payment of the money, and this action became necessary in order to determine the liability of the city. The position of the controller appears to be that the city is not liable, because, first, the councils had not previously authorized its committee to contract the debt, or made an appropriation for its payment; next, the committee had not advertised for proposals and awarded the contract to supply the flues to the lowest bidder; and, finally, that, as the debt was for repairs and exceeded one hundred dollars in amount, it was contracted in violation of section 11, of ordinance No. 8T, and the city was not liable for it.

If the city was resisting the payment of this debt and repudiating the action of the fire committee, there might be much force in these objections. The fact is however that councils have adopted the acts of the committee and provided the fund necessary to pay the debts incurred by it. We have no doubt of their power to do this, or to refuse to do it, as may seem just to them under the circumstances of the particular case, and their action binds the city. In this case an emergency arose between the sittings of council. The security of the city re quired prompt action. The fire department acted without delay, and in the interest of the municipality and all its property holders. When councils met they very properly ratified and adopted the unauthorized action of the committee and prepared to pay the debts incurred. This action authorized the issue of the proper warrant by the controller and it was a mistake to withhold it.

The second objection is one upon which the city could not properly insist upon in this case. The object of requiring the city to advertise for proposals to supply the materials and labor needed by it is to secure competition and enable the city to purchase its supplies at the lowest market price. But the article needed in this instance was part of a peculiarly constructed engine built by the Silsby Manufacturing Company under the protection of letters patent owned by it. The flues were made only by the plaintiff. They could be bought nowhere else. Competition under such circumstances was impossible. Ratio eessante eessit lex. The law does not insist on what is impossible, or absolutely useless. Advertising for proposals in this case would have been worse than useless, since it could have resulted in nothing but dangerous delay and an idle expenditure of money.

. The third objection is disposed of by what has been said about the first and second. The ordinance was a rule laid down by the city to limit the authority of its agents. It cannot affect the power of the principal and it was not intended to do so. Councils might insist on the application of the ordinance, but to do so would seem both impolitic and unjust on the circumstances of this case. They have chosen to adopt the act of the agent and pay the debt, and we regard their right to do so as very clear. This case is not ruled by Bladen v. The City of Philadelphia, 60 Pa. 464, nor by Mathews v. The City of Philadelphia, 93 Pa. 147, but turns on the power of councils to adopt an act done for the benefit of the city by an unauthorized agent and assume the debt so contracted.

The judgment is reversed and a venire facias de novo awarded.