Com. Ex Rel. v. Bearstler

Argued December 2, 1924. On petition and return the court below refused a writ of mandamus to require the members of the council of the City of Pottsville, to enact an appropriate ordinance pursuant to the Act of May 20, 1921, P.L. 1045, entitled "An Act authorizing a city of the third class to provide by ordinance for the payment for public work or improvements heretofore made for and accepted by such city where no legal or valid contract was entered into as required by law."

In 1916 certain public work was done for the city without an ordinance or prior appropriation to pay for it. On a taxpayer's bill, the city was enjoined from paying for that work, for reasons stated in Dolan v. Schoen, 261 Pa. 11. Thereafter the Act of May 20, 1921, supra, was passed. Notwithstanding the act, the city council, as the petition avers, "failed and refused to enact or provide an ordinance for the payment of the amount due the said Clarence Messersmith and other contractors ......," who had done the work in question.

Counsel for appellant makes but one contention: that the act is mandatory, and requires the city to pay. We need not discuss the subject, because the point was recently determined in Investors' Realty Co. v. Harrisburg, 281 Pa. 200, holding that the title to an act "authorizing" cities to refund money does not give notice within article III, section 3, of the Constitution (requiring the subject of a statute to be "clearly expressed in its title"), of the mandatory character of the enactment. That is conclusive here. The statute does not help petitioner.

Judgment affirmed.