Tarentum Borough v. Moorhead

26 Pa. Super. 273 | Pa. Super. Ct. | 1904

Opinion by

Rice, P. J.,

Section 3 of the Act of April 23, 1889, P. L. 44, provides that no assessment for paving, curbing or macadamizing under the provisions of the act shall be a lien on real estate for more than six months from the time of the “ completion of such work,” unless a claim for the same shall be filed in the office of the prothonotary within that time. Does this mean completion of the work in front of the property subject to the claim filed, or completion of the entire improvement authorized by the ordinance ? A consideration of the context leaves little doubt as to the correct answer to this question. The jurisdiction to charge any portion of the cost of paving, curbing or macadamizing is made dependent by the first section upon a petition of “ two thirds of the owners of property representing not less than two thirds in number of feet of the properties fronting or abutting on said street or thoroughfare, or the part thereof, proposed to be paved.” If the borough can enforce collection of the charge by claim filed and sci. fa. thereon before completion of the entire improvement petitioned for, the property owner may be compelled to pay although it may never be completed. It seems unreasonable to suppose that the legislature intended by the third section to make it possible for the borough to accomplish such a result, and in this indirect way render nugatory the above quoted provision of the first section. Again the amount for which each abutter is made liable is determined by the cost and expense of the entire improvement specified in the petition and ordinance, not by the cost of curbing and paving the portion of the street in front of his property. A case might arise, indeed this is such a case, where this cost could not be definitely ascertained until the completion of the entire improvement. The argument that by postponing the running of the limitation period until all the work is done the property is made subject to a secret lien, which in this case was maintained for a considerable length of time, is not without force, but the inconvenience is not greater than would result from an opposite construction of the statute. At any rate the argument cannot prevail against the clearly manifested intention of the legislature. Upon a view of the statute' as a whole it seems quite evident to us that the event or point of time described in the third section as the “ completion of such work ” is the same as that described in the second section as the “ completion of the paving, curbing or macadamizing,” and that' both relate to the improvement petitioned for and ordained as an entirety. This conclusion is in harmony with the construction given to a similar provision of • the Act of July 26, 1897, P. L. 420, in Philadelphia v. Hey, 20 Pa. Superior Ct. 480, and is supported to some extent by the decision of the Supreme Court in Pittsburg v. Knowlson, 92 Pa. 116.

The ordinance was adopted and most of the work done prior to the passage of the Act of June 4, 1901, P. L. 364, but was not entirely completed until about a month thereafter. It is suggested, but not very earnestly argued, that the case is governed by that clause of section 10 which provides that municipal claims of this character must be filed “ within six months from the time the work was done in front of the particular property, where the charge against the property is assessed or made at the time the' work is authorized.” The adoption of this construction would 'imply that the legislature intended to make the performance of an impossible thing a condition precedent to the collection of a claim situated like this, even though at the date of the approval of the act a right had accrued to the borough to file it upon the completion of the improvement then in progress. To say nothing of the familiar rule that a statute should be interpreted so as to operate prospectively only, unless a contrary intent is clearly manifested, the language of the clause itself, the express words of the 41st section, and the exposition of the legislative intent contained in the concluding paragraph of the repealing section show beyond all question that the legislature did not intend the clause to have the retroactive effect here claimed for it. This is all that we deem it necessary to say with regard to the act of 1901,

The improvement petitioned for and ordained covered that portion of South Canal street from the east line of Wood street to the east line of Ferry street. Between these points South Canal street is intersected by Boyd street. The contract let pursuant to the ordinance covered the entire improvement. It is alleged, however, in the affidavit of defense, that the work upon the square between Wood and Boyd streets, this being the square upon which the defendant’s property is situated, was substantially completed in June, 1899; that no further work was done under that contract; that in May, 1901, the work was resumed by the same contractors, but under another contract between them and “ said borough, or the street committee of said council of said borough,” at an increased price for the'material used, and was completed on July 8,1901; moreover, that this contract was entered into without an ordinance or resolution of the borough council specially authorizing it, and without advertising for bids. The lien was filed November 4, 1901,. this being about four months after the completion of the entire improvement contemplated by the ordinance, but more than two years after the completion of the work upon the square between Wood and Boyd streets. It is to be observed that there is no allegation that this ordinance was repealed; or that any corporate action was taken indefinitely postponing the paving of the square between Boyd and Ferry streets, of otherwise clearly manifesting an intention to abandon the making of that part of the improvement. For aught that is alleged in the affidavit of defense, the delay was for a cause for which neither the borough nor the contractor was responsible and was unavoidable. Neither the fact that there was an interruption in the work, nor the fact that it was done under two contracts, nor both together would be sufficient, without- more, to make the paving of each square a distinct and separate improvement within the meaning of the act of 1889. Notwithstanding these facts, we are of opinion that the improvement petitioned for and ordained was completed when the paving and curbing of the entire portion of South Canal street between Wood and Ferry was completed, and not until then. We do not say that there might not be such a breach in the continuity of the work as, coupled with other circumstances, might lead purchasers and incumbrancers to suppose that the intention to pave the whole street had been abandoned. But to what extent their rights would be affected in such a case is a question which does not arise here and need not be considered.

No statute has been called to our attention which made it the duty of the borough officers to let the contract to the lowest responsible bidder, but the ordinance in question contains such provision. Therefore, while it cannot be said that they exceeded their statutory powers or violated any statutory provision, yet it cannot be denied that in entering into the second contract without attempting to get bids they failed to comply with the mandate of the ordinance. There is also the objection that they were not specially authorized by resolution or ordinance of council to enter into this contract. But the only difference between the first and second contracts that is alleged is as to the price of the materials. Unquestionably the borough had power to make that change and it is not intimated either in the affidavit of defense or in appellant’s brief that any abuse of discretion was involved in the transaction or that it was tainted with fraud, or that it was not justified by the conditions existing at the time. This being so, the principle enunciated in numerous cases is applicable, that a municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the corporate powers, and that such ratification need not necessarily be by resolution or ordinance but may be implied from the acceptance of the work and formal assertion in judicial proceeding of a claim founded on it. Amongst these cases may be cited McKnight v. Pittsburg, 91 Pa. 273; Phila. v. Hays, 93 Pa. 72; Brientnall v. Philadelphia, 103 Pa. 156; Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Shiloh Street, McCormick’s Appeal, 165 Pa. 386; Amberson Avenue, 179 Pa. 634; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491; Erie v. Bier, 10 Pa. Superior Ct. 381. Even granting for the sake of the argument that the defendant would have a defense to the extent that the increase in the price of the materials increased her assessment, it was not sufficient to assert that the second contract was let at a higher price without showing what was the difference between the two. See Pittsburg v. MacConnell, 130 Pa. 463, and Erie v. Bier, supra. It is to be observed in conclusion that she does not aver that her property was not benefited to the extent of the charge made against it or that the price allowed the contractor was excessive. Upon the whole we conclude that the court committed no error in revoking the order of November 3, 1902, or in making absolute the rule for judgment.

Judgment affirmed.