Rafferty v. Pittsburg

Opinion by

Orlady, J.,

M. J. Rafferty was during his life a duly commissioned and acting alderman in the city of Pittsburg. A large number of suits were instituted before him, in the name of the city against divers persons, to recover penalties for failure to comply with an ordinance of the city regulating and providing for vehicle licenses. Some of these suits were proceeded in in such a manner that judgments were entered in favor of the defendants and against the plaintiff for costs of suit. M. J. Rafferty died on March 6, 1897, and this action was brought by his administratrix against the city to recover the aggregate of these unpaid costs which amounted to $1,323.70.

On the trial the defendant offered in evidence two private acts of assembly, as follows: Section 2, of tbe Act of February 10, 1859, P. L. 35, “ The mayor, alderman and citizens of Pittsburg shall not be liable for costs in any suit in which said corporation may be plaintiff, unless the institution of said suit has been authorized, by the mayor or solicitor of said city; ” section 1 of the Act of April 13, 1859, P. L. 599, “ That no suit shall hereafter be brought by any city officer in the name of said city, without notice in writing or in person to the regularly chosen solicitor of said city, who shall keep a regular docket of all such suits, and hand the same over to his successor in office.”

One D. H. Speer was the duly appointed vehicle officer of the city, whose duty it was to seek out all persons using, contrary to the provisions of the ordinance, any vehicle within the city and to report them to the city treasurer. When he was examined in rebuttal by the plaintiff the following offer was made, viz : “We propose to prove by the witness on the stand that before bringing these suits before Alderman Rafferty, or any other alderman, he consulted with Mr. C. S. Fetterman, who was one of the regular city solicitor’s assistants, in reference to the bringing of these suits, and was authorized by him to bring the suits.” The offer was objected to as incompetent and irrelevant. The exclusion of the evidence indicated in this offer is the basis of the first assignment of error. The appellee is confined to the ground of the objection taken in the court below: Fidler v. Hershey, 90 Pa. 363. To entitle the plaintiff to recover, she must affirmatively show a substantial compliance with the two acts of 1859, viz: that the suits had been brought by a city officer in the name of the city, that the “ regularly chosen solicitor of said city ” had notice thereof in writing or in person, and that the suits had been authorized by the mayor or the solicitor of the city.

The offer was reasonably certain and specific as tending to prove that- C. S. Fetterman had authorized the bringing of these suits, and that he was a duly appointed assistant or representative of the city solicitor. The chief of that department had full authority to direct that such suits should be brought. The purpose of the offer was not stated, this being unnecessary unless asked by the opposite counsel or the court. Hence if it was competent for any purpose it was error to reject it: Railroad Co. v. Eby, 107 Pa. 166. The plaintiff might have been compelled to state specifically the use she intended to make of it, or the court might have limited its application, but if admissible for any purpose the court ought not to have rejected it: Kemble Iron Co v. Scott, 15 W. N. C. 220. It is a strained and too technical a construction to put on this statute to hold that the notice must be given to the regularly chosen solicitor of the city, individually and exclusive of his regularly authorized assistants who are by him specially deputed to act — in the words of the offer — “ in reference to the bringing of these suits,” as such construction might result in great wrong to the city. This city officer is charged with many and various duties which require his presence at different places, and that the •business of the city may be conducted with certainty and dispatch it is necessary that he should act through “ regular city solicitor’s assistants.” When a proper notice is given to the assistant, who is designated by the city solicitor to act in such matters, it is a substantial compliance with the statute. If the plaintiff consulted with such an assistant and acted on his direction in bringing the suits, they were in contemplation of the statute, as fully authorized by the regularly chosen city solicitor, after notice to him, as if the direction to sue had been given by the chief solicitor. Standing alone the evidence suggested by the offer would not be sufficient to entitle the plaintiff to recover, but it was a step in that direction. The plaintiff was halted on the threshold of this important branch of his case, by the exclusion of the evidence by which he offered to show the authorization of the suits by the proper city official, and in this there was error.

The first assignment of error is sustained, the judgment is reversed and a venire facias de novo awarded.