238 Pa. 42 | Pa. | 1913
Opinion by
This was a bill in equity filed by L. M. Jaxtheimer, a citizen and taxpayer of the Borough of Sharpsville,
The first objection is that the contract was made too soon, that is, before the ordinance had been posted and advertised for a period of ten days after its final passage, as required by the Act of April 3,1851, Sec. 3, P. L. 320. The validity of this objection depends upon whether the contract with William McIntyre & Sons is to be regarded as having been entered into by the passage by the council of a resolution of acceptance upon September 5, 1911, or whether, the real contract for paving was made upon September 26,1911, which was the date upon which the written contract was executed. It appears from the ■seventeenth finding of fact by the trial judge that on September 5, 1911, after the passage of the ordinance over the veto of the burgess, bids for paving were received and opened, and “it was unanimously resolved that the bid of William McIntyre & Sons be accepted, subject to the entering into of a contract by them with the Borough of Sharpsville, as provided for in the printed specifications.” We agree entirely with the
Another ground of objection to the contract is that while it was provided in the ordinance that the specifications for the paving should be prepared or procured by the burgess and paving committee of council, they were in fact prepared or procured and reported to council by the borough engineer and the street committee. We see no merit in this objection. The court below found, as set forth in its opinion on the exceptions, from testimony taken after the original findings were made, that there was no special paving committee of the borough council, and that what was intended by that term, was the standing street committee; and that for the current year, the street committee and the paving committee were one and the same, and made up of the same members of the borough council. Whether the burgess or the borough engineer acted in preparing the specifications was of no special consequence. The committee were authorized either to prepare or procure specifications, and this gave them the right to call for such assistance as they might desire. We agree with the trial judge that the terms of the ordinance in this respect were merely directory, and we think that the council had the right to accept such specifications as seemed to them most fit, whether presented by the street committee or
The assignments of error are all overruled; and the decree of the court below is affirmed.