City of Erie v. Piece of Land Fronting on Eleventh Street
| Decision Date | 15 May 1899 |
| Docket Number | 18-1899 |
| Citation | 10 Pa.Super. 381 |
| Parties | City of Erie, to use of V. D. Eichenlaub, v. a Piece of Land fronting on Eleventh Street, and Louis Bier, owner or reputed owner, Appellant |
| Court | Pennsylvania Superior Court |
Argued November 21, 1898 [Syllabus Matter]
Appeal by defendant, from judgment of C. P. Erie Co.-1896, No. 46 on verdict for plaintiff.
Sci fa. sur municipal lien. Before Walling, P. J.
The facts sufficiently appear in the opinion of the court.
The defendant presented among others the following points, which were refused by the court below:
The court directed a verdict for plaintiff. Verdict and judgment for plaintiff for $ 191.60. Defendant appealed.
Errors assigned among others were refusing defendant's first, third, fourth and fifth points, respectively, reciting same. To the charge to the jury in instructing them to enter a verdict for plaintiff for the original amount of the lien and interest thereon.
Affirmed.
Clark Olds, with him C. L. Baker, for appellant. -- We contend that the proceedings of the councils, so far as they attempt to bind the property of the defendant, are defective, for the reason that the concurrent resolution was not approved by the mayor, his approval being an act required by the statute, without which they could not acquire jurisdiction.
The learned court below decided this point upon the language of section 7, article 6 of the same act, P. L. 1889, p. 296, and the decisions of the Supreme Court in Gaslight Company v. Scranton, 97 Pa. 538, and Allentown v. Grim, 109 Pa. 113.
We do not think the above section of the act, or the above cases, have any bearing upon the case at bar.
We deny the right of the plaintiff to recover, for the reason that the contract was not awarded to the lowest responsible bidder, as required by statute: Mazet v. Pittsburg, 137 Pa. 548.
In this case the contract was not awarded to the lowest responsible bidder; neither was it awarded to the plaintiff in pursuance of the advertisement and the bids received thereon, but was awarded to him at a different price than his bid by a special arrangement made with the street committee of the councils, and the contractor at the Liebel House in the city of Erie, at a different time than as advertised, in which no one but the contractor and his friends participated. We contend that there was both corruption and bad faith and believe that the evidence bears us out in the statement.
Joseph M. Force, with him Henry A. Clark, for appellee. -- There are but two points raised by appellant in this case, (1) that the concurrent resolution of councils, declaring their intention to pave the street in controversy was not approved by the mayor, by having his signature attached thereto, and (2) that the contract was not awarded to the lowest responsible bidder: Clause 10, sec. 2, art. 5 of the Act of May 23, 1889, P. L. 277.
The concurrent resolution of councils above referred to is certainly a " legislative act of councils" and clearly comes within the provisions of section 7, article 6.
The mayor had power to call council in special session on twenty-four hours' notice, had he disapproved of this ordinance.
Failing to return this resolution to the branch of councils in which it originated within fifteen days from the date of its presentation to him, it became operative with the same force and effect as if he had formally approved the same: Gaslight Co. v. Scranton, 97 Pa. 538; Allentown v. Grim, 109 Pa. 113.
The only other point raised in this appeal is that " the contract was not awarded to the lowest responsible bidder, as required by statute."
It seems unnecessary to cite authority on the proposition that in the absence of corruption or bad faith, neither of which is alleged here, councils are not obliged to award the contract to the lowest bidder. This has been repeatedly held by the Supreme Court of this state: Com. v. Mitchell, 82 Pa. 343; Findley v. Pittsburg, 82 Pa. 351; Douglass v. Com., 108 Pa. 559; Paving Company v. Philadelphia, 164 Pa. 477.
Besides, when the work is done by the contractor and accepted by the city an abutting property owner cannot defend on the ground that the contract was illegally let without showing special injury to himself: Hutchinson v. Pittsburg, 72 Pa. 320; Philadelphia v. Brooke, 81 Pa. 23; Brientnall v. Philadelphia, 103 Pa. 156; Pittsburg v. MacConnell, 130 Pa. 463; Erie v. Moody, 171 Pa. 610.
Appellant not having printed the evidence in his paper-book this court will not inquire into the finding of facts of the court below and his answers to the points submitted, based upon the evidence in the case, will be taken as correct: Solts's Appeal, 4 W. N.C. 298; Brindle v. Brindle, 50 Pa. 387; Greenhoe v. College, 144 Pa. 131; Ferry Co. v. Bridge Co., 1 Pa.Super. 587
Before Rice, P. J., Orlady, Smith, W. W. Porter and W. D. Porter, JJ.
A concurrent resolution was passed, by a vote of two thirds of all the members elected to each branch of councils of the city of Erie, declaring the purpose of the city to order Eleventh street to be paved at the expense of the abutting property. The resolution was duly certified and submitted to the mayor, on October 6, 1893, and was by him returned, on October 17, 1893, to the clerk of common council, the branch in which the resolution originated, without indicating whether he approved or disapproved the legislation. The council was not then in session and there was no session held, nor was any called, until October 30, 1893. Councils acted upon the assumption that the failure of the mayor to return the resolution to councils within fifteen days was equivalent to his approval and, subsequently, duly passed an ordinance directing the pavement to be laid. The regularity of the concurrent resolution is called in question by the first assignment of error. It is contended by appellant that, under the provisions of article 5, section 3, clause 10 of the Act of May 23, 1889, P. L. 277, the approval of the concurrent resolution by the mayor must be direct and absolute, before an ordinance can be passed imposing upon abutting property the costs of paving for which there has been no petition. The clause in question does provide that such concurrent resolution shall be passed, by a two-thirds vote of all the members elected to each branch of councils, and approved by the mayor. The legislative purpose indicated by this clause was to avoid hasty action in the imposition of a burden upon abutting property without the consent of the owners. The concurrent resolution must first be passed by a two-thirds vote and be approved by the mayor; the owners of property then have sixty days within which to agree in writing upon a kind of pavement to be laid which agreement shall be submitted to the mayor for approval; if he approves councils may by a two-thirds vote order such pavement to be laid; if the majority of owners do not agree or the mayor does not approve their agreement, councils may by a two-thirds vote determine the kind of pavement and order it to be laid. The concurrent resolution must be a complete legislative act and pass the scrutiny of the mayor before any further step is taken; but there is nothing in the act which indicates that such a resolution is to be submitted for the approval of the mayor in a manner, or that his approval is to be evidenced in a way, different from that which appertains to any other resolution or ordinance. The power to approve or disapprove resolutions is one of those conferred upon the mayor by the act, and as the act provides a manner in which the power is to be exercised, he would be bound by its terms in the absence of a specific legislative mandate; but we are not left to rules of construction in this statute, for section 2 of article 5 expressly enacts, that " the power hereby granted shall be exercised by the mayor and councils of such cities in the manner herein provided."
The manner in which resolutions or ordinances are to be approved or disapproved by the mayor is determined by section 7 article 6 of the act. ...
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