215 Pa. 177 | Pa. | 1906
Opinion by
Appellant’s application in the court below was for a writ of mandamus to compel the appellee, controller of the city of Lebanon, to certify on a contract for furnishing electric light to the city the appropriation against which the expenditures under the contract are to be charged, and to counter
The city of Lebanon is a city of the third class, and the duties which the appellant insists its controller owes to it, and which he should be compelled to perform, are defined in sections 4 and 5 of article IX of the Act of May 23, 1889, P. L. 277. By the fourth section it is the duty of the controller to countersign all warrants upon the city treasurer, the form whereof shall be prescribed by councils, and he shall not suffer any appropriation made by the city councils to be overdrawn. The fifth section provides: “ Every contract involving an appropriation of money shall designate the item of appropriation on which it is founded, and the estimated amount of the expenditure thereunder shall be charged against such item and so certified by the controller on the contract before it shall take effect as a contract, and the payments required by such contract shall be made from the fund appropriated therefor. If the controller shall certify any contract in excess of the appropriation made therefor, the city shall not be liable for such excess, but the controller and his sureties shall be liable for the same; which may be recovered in an action at law by the contracting party aggrieved. It shall be the duty of the controller to certify contracts for the payment of which sufficient appropriations have been made.”
The contract of the appellant for furnishing light to the city of Lebanon was entered into on June 15, 1903, and was for lighting the streets with electricity from January 1, 1905, to December 31, 1914. In his return the controller avers “ that no appropriation has ever been made either by resolution or ordinance of the councils of the city of Lebanon, Pa., for the payment of any moneys due or alleged to have become due to the relator, under its alleged contract with the city of Lebanon dated June 15th, 1903.” Under the pleadings it must, therefore, be taken as an admitted fact that at the time the contract of June 15, 1903, was entered into there was no item in any appropriation of money by the city councils that could have been designated as the one on which the contract was founded; and yet the mandatory words of the act
A prior appropriation by a city of the third class is essential to every contract entered into by it in which “ the appropriation of money” is involved. Such was the contract of the appellant with the city of Lebanon. Without an appropriation for the contract it had nothing to rest upon — no foundation — for the words of the act are that such contract “ shall designate the item of appropriation on which it is founded,” and the duty of a controller, which the appellant seeks to have this appellee perform, is “to certify contracts for the payment of which sufficient appropriations have been made.” Not only was there no sufficient appropriation made for this contract at the date
True, the contract provides that “ the monthly payments to be made on this contract during the term thereof and according to the conditions thereof shall be charged against the item of appropriation for lighting the streets of the city of Lebanon, and the payments required as aforesaid shall be made from time to time from the fund appropriated for that purpose.” But there was no such an appropriation at that time, as appears from the respondent’s answer, admitted by the appellant to be true. There was an ordinance passed by the city of Lebanon on April 4, 1904, nearly ten months after the contract was entered into, making an appropriation for the fiscal year ending March 31, 1905, in which there was an item appropriating $12-, 500 for the lighting of streets. This was notan appropriation for the electric lighting, or for the payment of any sums due, or alleged to be due, under the contract of June 15,1903, but was for the general lighting of the city, which included that furnished by gas and oil.. But we need not consider this appropriation of 1904, for, as the court below properly held, an appropriation before the execution of the contract was a prerequisite to its valid existence. No other interpretation can be put upon the words of the statute.
Judgment affirmed.