Ruppert v. Mayor of Baltimore
1865 Md. LEXIS 20
| Md. | 1865

Lead Opinion

Bartol, J.,

delivered the opinion of the majority of the Court:

The decision of this case depends upon the' true, construction of Ordinances 1850, No, 40, and 1355, No. 11. The former relates to ordinary wells and pumps, and the latter to Artesian wells. They are to be construed together; the provisions of Ordinance No. 40, of 1850, being expressly made “applicableto the construction of Artesian wells as fully as to ordinary wells and pumps.”

This ordinance, (1850, No. 40,) after prescribing the preliminary steps to be taken to authorize the City Commissioner to contract for having a well or pump made, directs that when it is completed, “ he shall apportion the expense on all the assessable property that, in his judgment,, is benefited by the erection of said pump or well;” and then goes on to provide for the collection of the amount so assessed, and for the payment of the contractors during the work. No provision is made- in this ordinance for the case of a failure to obtain water fit for useprobably such a contingency was considered too remote to be provided against; if *193it should happen, however, while it is very clear no assessment could he made hy the commissioner under the ordinance, because in such case no property would he benefited thereby, we see no reason why the city would not he responsible to the contractor for the work done, unless there should be something in the terms of the contract to exempt it from liability. The samo principle would apply where the contract is for an Artesian well, if it. were not for the terms of the Ordinance of 1855, No. 11, by which the case of a failure is expressly provided for, in these words: “The petitioners to he responsible for all expenses that may occur in sinking said Artesian wells, if a failure should take place in the attempt to procure water.”

Upon the true construction of this clause, the whole case turns; here there was a failure to procure water, and the work was abandoned.

The appellants contend that the city is liable to them for' the work done, and that the responsibility fixed Upon the petitioners is to the city. If so, in what manner is the city to enforce that responsibility? Not, certainly, hy an assessment upon their property, to be made by the Commissioner ; he has no authority to make such assessment, except for benefits resulting from the completion of the well; besides, by the terms of the ordinance, the responsibility of the petitioners is a personal responsibility, not one imposed upon their property, to be enforced by assessment, and collected as a tax; there is no power to make such assessment under the ordinance.

If, then, the city be liable to the contractors for the work, the effect would be to compel the city first to pay the expenses, and then to collect the money by a suit against the petitioners. This, in our opinion, is not the meaning of the ordinance. When it declares that the petitioners shall be responsible, this is equivalent to saying that the city shall not be responsible.' In passing it, the Mayor and City Council seemed to have considered that, unlike sinking an ordinary well, the attempt to construct an Artesian well *194was an enterprise attended .with great risk and uncertainty;, this risk they were nnwilling to assume, and put it upon the petitioners, the persons at whose instance the work is undertaken, and, in case of failure, make them responsible for alh expenses that may occur.

When the well is completed, that is, when success has been achieved, the expense is to be apportioned and assessed by the City Commissioner on the property benefited,, and collected as a tax thereon; but if a failure take place in the attempt to procure water, the petitioners are responsible, not td the city, but directly to the contractors. They sign the petition with the knowledge of the risk and responsibility so cast upon them; the privity between them and the contractors ■ is created by the words of the ordinance, for every contract made by the City Commissioner under the Ordinance of 1855, must be construed as if this clause were inserted in it.

It follows, from these views, .that in our opinion there was no error in the ruling of the Superior Court upon the prayers, and that the judgment ought to be affirmed. It is unnecessary to express any opinion upon the construction of the contract sued on; assuming that it was fully performed on the part of the appellants, without meaning, however, so to decide, still, according to our construction of the ordinances, this action could not be maintained; and for the same reason it is immaterial to decide the second bill of exceptions; even if there was error in admitting the evidence objected to, it would not be ground for reversal.





Dissenting Opinion

Goldsborough and Weisel, J.,

dissented, and filed the following opinion", delivered by Weisel, J;:

We are constrained to differ from our brothers, a majority of the Court, who have pronounced the judgment in this cause.

It seems to us proper that the contract sued on should he examined., in order to ascertain whether its terms were complied with by the appellants. For if all that was re*195quired of them to be done, was not performed, they had no right of action against the Mayor and City Council of Baltimore, or against the signers of the petition, according to the construction of the ordinances arrived at by a majority of the Court.

The contract is contained in the' terms of proposal by which the work of sinking the Artesian well was bid for by the appellants, and accepted on the part of the city. It was to sink the well “for the sum of $4.50 per foot, through sand, day or gravel, and finish the same according to city requirements, and keep the same in repair for one year.”

As the parties stipulated for a certain sum per foot, through sand, clay or gravel, it cannot fairly be presumed that if hard rock were to be encountered, the appellants were to persevere in penetrating it, and continuing tho operation until water should be obtained, or the work be pronounced fruitless in the effort. We should give to tho contract a reasonable construction, looking to the nature and character of thowork,.and the intention of the parties; and we think that the stipulation in this case was to boro for water through sand, clay or gravel; and in case in the course of such boring water were obtained to answer the public purpose contemplated by the ordinance, then they were to finish the well in such way “as the city should require, or had required, and to keep the same in repair for one year.” When, therefore, the contractors reached hard rock, they were not required tó go further, but that event determined the fact of failure in the attempt to procure water.

We turn now to the ordinances of the city of Baltimore, under which this contract was made, and is sought to be enforced. They are the Ordinances of 1850, No. 40, and 1855, No. 11; the latter being a supplement to the former. That of 1850, relates to the sinking of ordinary wells and erecting pumps. The supplement makes the provisions of the former ordinance applicable to the construction of Artesian *196wells as fully as to ordinary wells and pumps, concluding, however, with $ clause or provision which creates the principal difficulty in ascertaining the meaning and intention of the law-giver as applicable to this controversy. Reading the main ordinance and its supplement together, as applicable to the construction of Artesian wells in the city of Baltimore, we find these provisions, viz; “ That whenever at least sixteen signers, owners of property in the immediate neighborhood, and interested, desire an Artesian well to be sunk in their neighborhood, shall make application to, the City Commissioner, in writing, describing the place where the well is required, the Commissioner, if in Ms judgment the same is required for the public good,- shall forthwith cause the work to be done by contract to the lowest responsible bidder, after a certain notice, and when completed, shall apportion the expense on all the assessable property that, in his judgment, is benefited by the construction of said well, and shall make or cause to be made a correct list of the persons who' are liable to pay the said apportionment, and the amount*to.be paid by each person, provided that (in the case of ordinary wells) he shall not assess any person having a private pump in good order, more than half the cost for which said person would otherwise have been liable, He is then directed to deliver to the City Collector a duplicate of said list, with directions for collecting the same,° and which the Collector shall collect by distress or otherwise, giving thirty days’ notice previous to any. distress, and pay over the amount to the Register of the city.’’ Sec, 1, No, 40, of 1850, and Nor 11, 1855, 1st clause, The 2nd and 3rd sections of the Ordinance of 1850 then provide: “That whenever the work is completed, and the City Commissioner shall have made the assessment and returned the same to the Collector, it shall be lawful for the Register, upon the order of the City Commissioner, by and with the approbation of the Mayor, to pay to the person or persons employed to do the work and furnish the materials for the well or pump, the amount of his or their-*197respective Mils. It is also made the duty of the City Collector., immediately upon receiving from the City Commissioner any assessment made for sinking the well, to furnish each of the persons assessed with a bill of his, her or their proportion of the expense assessed as aforesaid; and if the person or persons so charged shall not pay the same within sixty days after the hills, as aforesaid, have heen delivered, it shall be the duty of the Collector forthwith to proceed to enforce payment according to law;” (that is, by distress or otherwise, as provided in section 1.) Then the supplement adds this clause: “The petitioners to he responsible for all expenses that may occur in sinking said Artesian wells, if a failure should take place in the attempt to procure water.”

We thus present the provisions of these ordinances in connection, and in the manner they axe read by us, in order that we may he able to give a proper‘and .practical construction to the concluding clause above quoted from the supplemental ordinance, for upon that depends the proper ruling of the Court upon the exception to the defendant’s second prayer.

The majority of the Court have concluded that when a failure takes place in the attempt to procure water, the petitioners are directly responsible to the contractors for the expenses incurred, and not the city; and that the ordinances create a privity between them, by virtue of the language above used.

In this we do not concur with our brothers, These wells are to he sunk for the public good, and only when so required in the judgment of the City Commissioner; hut they are to he paid “for by all the persons in the neighborhood whose property is, in his judgment, benefited by the improvement when completed, or by the petitioners only in case of a failure to procure water. The assessment upon the property, which the Commissioner is to make, is not for the purpose of fixing upon each lot or portion of property benefited a certain sum, which is to he recovered in a *198proceeding in rem. It is for the purpose of ascertaining how much each person is liable to pay. It is to apportion among the property-holders the expenses, according to the value of each one’s property. And, therefore, the assessment of the property and of the person is indiscriminately used in the ordinance, and the.liability of the person to pay the apportionment, is more than once expressed. Each person is charged with the assessment, and the Collector is required to collect it by distress or otherwise; by a personal action, if he sees proper. The assessment is not made a lien upon the property by express terms, though the right of distress is given, if the Collector prefers that mode of proceeding to enforce the payment. Is there any thing, then, in the clause, which confines the responsibility for the expenses, in a case of failure to procure water, to the petitioners, instead of all the property-holders in the neighborhood, that would dispense with a similar assessment as to them, and change the remedy to the contractors? We thinlc not. The petitioners must be owners of property in one case as well as in the other. The object is the public good. In the one case, a benefit is conferred upon all the property in the neighborhood, and the expenses of the improvement are apportioned among all the property-holders benefited, by the proper officer; and a mode pointed out for their collection from each one liable to the payment — each one his appropriate sum, and no more. So in the other case, the expenses" of the work done, being 'a loss, or resulting in no benefit, are to be apportioned among the petitioners ; and all the provisions for so apportioning and collecting them, are as applicable in this case as in the other. Otherwise there would be no mode for ascertaining each one’s share of the cost, and a joint action against all, if practicable where there are numerous signers, and in the varying circumstances that might attend the projectors of such an enterprise, might result in fixing the entire cost upon a few or even one, besides embarrassing the contractors in their efforts to be remunerated for their labor and *199outlays on a work in its very nature difficult arid costly, A literal interpretation of this clause would produce these consequences, and would render the ordinance for the construction of Artesian wells almost impracticable. It can scarcely be supposed that any one would risk his labor and capital upon a public work of this character, when, in case of failure to procure water, he was not to look to the contracting party for payment, but to numerous individuals, at whose instance a public corporation engaged his services. In doubtful cases the consequences may be considered in the construction of a statute, and it is the office of the expositor to put such a sense upon its words as is agreeable to equity and right reason, so that no innocent person shall receive any damage by a literal construction. Dwarris on Statutes, (9 L. L.,) 755, 756. The construction we give to this clause, gives a ready remedy to the contractors against the city with which they contract, whilst the city, in its turn, is provided with the same means of reimbursement against those for whom the expenses were incurred, in the one case that it has in the other; and, indeed, the more readily, for where a failure takes place, the apportionment is to be made among an ascertained number, the petitioners, all property-holders; whilst in the other, the City Commissioner is to exercise his judgment as to who are benefited by the improvement, and to apportion the expenses among them.

This construction is strengthened by the fact that the payment to the contractor is not dependent upon the actual collections of the apportioned sums from the parties liable. To collect these by distress, would require full ninety days, (secs. 1 and 3,) and yet the city is authorized to pay as soon as the apportionment is made and returned to the Collector, (sec. 2.) And further, by comparing the provisions of these ordinances with those of the paving ordinance, (1850, No. 15,) in which, although there are similar provisions for assessing, levying and collecting from the owners the paving tax, it is specially provided that the said tax shall bo a lien *200upon the property, and that the city shall in no case whatever he made responsible for the paving done, and that a clause to that effect shall he inserted in dll contracts to pave, (sec. 5.) No such provision, denying the city’s, responsibility, -is found in the ordinances respecting wells and pumps. To give to the clause in Ordinance 1855, No. 11, the force and effect of such a provision, would he, in our opinion, to impart to it a meaning far beyond what- its language and context would justify.

Looking, then, to the intention of the maker of these ordinances, to he discovered from the text and context, the occasion and subject matter, of the law, and particularly the remedial nature of the clause in question, (which justifies a liberal construction, in order to” avoid consequences that would work injury to, or inflict loss upon, a contracting party,) we think the construction we have given to these ordinances is the one most consistent with their language and purpose.

The second prayer of the defendant also asserts that, until the assessment shall have been made, there is no responsibility on the part of the Mayor and City Council. The 2nd section of the Ordinance of 1850, does provide that upon the return of the assessment by the City Commissioner to the Collector, it shall be lawful for the Register, upon the order of the Commissioner and with the approbation of the Mayor, to pay the contractor. This would be full evidence of the completion of the work to the satisfaction of. the city authorities, and no reason could then exist for longer delaying payment. But the responsibility of the city to the contractor is not affected by the failure of the city officials to perform their duty in a case in which the work is fairly completed, or all that the contractor had engaged to do, shall have been done; hut in case of their refusal to perform their duty in the premises, the city is liable to be sued for the violation of its contract in the appropriate form of action.

*201(Decided June 9th, 1865.)

We deem it unnecessary, in this aspect of 'the case, to present our views upon the rulings of the Court helow on the other exceptions.

In conformity with the views expressed in the opinion of the majority of the Court, the judgment was affirmed.

Judgment affirmed.