215 Pa. 1 | Pa. | 1906
Opinion by
In this case the plaintiffs sought to recover the cost of an auxiliary waterworks built by them under a contract with the city of Lebanon. Upon the trial the learned judge of the court below granted a motion for a compulsory nonsuit, and subsequently refused to take it off. His refusal was based upon two grounds : first, the ordinance authorizing the contract was invalid, in his view, because, as he held, it was passed in violation of the statute prescribing the mode in which ordinances shall be passed; and, second, because no bond had been given by the plaintiffs for the faithful performance of the contract.
The specific feature in which the statute was violated during the passage of the ordinance is not pointed out by the trial judge in his opinion. But apparently he considered that it consisted in a failure to print the ordinance at the proper time, for the use of the members of council.
The first, second, third, fourth, fifth, sixth and seventh assignments of error specify the rejection by the court of various offers of evidence made on behalf of plaintiffs. These assignments all violate rule 31 of this court in that they contain no reference to the pages of the paper-book where the matter may be found in its regular order in the printed evidence or notes of trial.
The first and second assignments of error do not contain copies of the writings rejected, but such copies are printed elsewhere in the paper-book.
The eighth assignment specifies as error, the entry of the nonsuit, but this is not properly assignable as error.
It appears that when the appellants sought to offer in evidence in the court below, the ordinance of the city of Lebanon, approved on August 12, 1897, upon which the contract in suit was founded, the appellee objected on the ground that the ordinance was invalid, for the reason that, as he put it, the ordinance was considered by councils before being printed, as required by the Act of May 23, 1889, P. L. 277. This act provides that “No bill shall be considered unless referred to a joint or separate committee, returned therefrom and printed for the use of the members,” etc.
It is argued that the ordinance is Aroid because the bill was not printed before it was read the first time. The fact is, as appears from the evidence, that on July 7, 1897, at a meeting of the common council of Lebanon, convened for the transaction of general business, the bill was read in place by a member of the council, and passed first reading. Then two days later, on July 9, 1897, at a special meeting convened for the same purpose, the same bill was called up, and, on motion, council went into “ committee of the whole ” for the purpose of amending the bill. In the committee the bill Avas considered section by section, and certain amendments were made. After the committee had risen and reported the bill as amended to the council, their report was accepted, and the bill was referred to the printing committee for reprinting. Three days afterward, on July 12, 1897, at another special meeting convened for the same purpose, the bill was read and passed second reading, and then the rules being suspended, it was read a third time, and passed finally.
It appears from the use of the word “reprinting” in the minutes of the meeting of July 9, and from the testimony of the clerk of common council, that the bill was printed before the meeting of July 9, at which time it was considered section by section, and amended, although it apparently was not printed until after the meeting of July 7, when it was first introduced and passed first reading.
The contention that the ordinance cannot be valid unless it was printed before it was first introduced and read, is, we
It is urged also that the ordinance is defective because during its passage, it was not referred to a committee. But that depends upon what is considered a committee in legislative practice. Ordinarily a committee is composed of a comparatively small number of members, but it may include the whole body. In the Century Dictionary, “ Committee of the whole ” is defined as follows: “ A committee of a legislative body consisting of all the members sitting in a deliberative rather than a legislative character, for formal consultation and preliminary consideration of matters awaiting legislative action.” The bill in this instance was referred to the “ committee of the whole ” at the meeting of July 9, and was carefully considered in that committee, section by section, and was amended and reported as amended to the council, who accepted the report and referred the bill to the printing committee for reprinting. We think that this reference to the committee of the whole and its careful consideration there, met the requirements of the statute, as fully and fairly as a reference to any smaller committee, either special or standing, would have done.
But it is suggested by the trial judge in his opinion that, even if the ordinance was valid, its specifications with regard to the furnishing of a bond by the contractors were not com
It appears further that an appropriation was made by the city sufficient to cover the amount of the first payment, and the city controller appended his certificate, as required by the statute. The appropriation was sufficient when it covered the first payment. The rule was laid down by Chief Justice McCollum in Black v. City of Chester, 175 Pa. 101 (105) that, “ If the contract is to furnish light or water for a term of years to be paid for monthly, quarterly or annually, he (the controller) should certify upon it the estimated amount of expenditure thereunder for the ensuing fiscal year.” The controller did so certify in the present instance.
As the case now stands, the plaintiffs seek to recover for the full amount of the contract, as damages, and if they succeed in making good their claim, it is possible that a large sum may be recovered against the city without an appropriation having been made for the full amount thereof. But such a consideration cannot be controlling, if the result would be to enable the municipality to escape its honest obligations, under a valid contract. Even a constitutional requirement cannot be allowed to have such an effect as that. In Addyston Pipe & Steel Co. v. City of Corry, 197 Pa. 41, it was held that where a municipal contract for a sewer provided that the price should be paid partly by money in the treasury and partly by assessments on abutting and nonabutting property, and the nonabutting property was held not to be liable to such assessments, the city was liable for the full amount of the contract, notwithstanding the fact that this liability increased its debt beyond the constitutional limitation. The present chief justice said (p. 49) : “ The constitutional restriction was not intended to make municipalities dishonest, nor to prevent those who contract with them from collecting their just claims, but to check rash expenditure on credit, and to prevent loading the future with the results of present inconsiderate extravagance.”