Garr v. Fuls
| Decision Date | 12 April 1926 |
| Docket Number | 65 |
| Citation | 286 Pa. 137,133 A. 150 |
| Parties | Garr et al., Appellants, v. Fuls et al |
| Court | Pennsylvania Supreme Court |
Argued February 1, 1926
Appeal, No. 65, Jan. T., 1926, by plaintiffs, from decree of C.P. Northampton Co., April T., 1924, No. 3, dismissing bill in equity in case of Sylvester Garr et al., taxpayers, v Jacob Fuls et al., Supervisors of Washington Twp., and Plainfield Twp., officers of the Borough of Bangor, the townships and borough, the officers of Northampton County, and Northampton County, the State Highway Commissioner and the Contractor. Affirmed.
Bill by taxpayers for injunction to restrain performance of contract. Before STOTZ, J.
The opinion of the Supreme Court states the facts.
Bill dismissed. Plaintiffs appealed.
Error assigned was, inter alia, decree, quoting bill of exceptions.
The decree of the court below is affirmed at the cost of appellants.
C. F. Smith, of Smith & Paff, for appellants. -- The alleged contract was invalid as being in violation of the tenth section of the Act of June 27, 1895, P.L. 403, as amended: Harris v. Phila., 283 Pa. 496; Com. v. Jones, 283 Pa. 582; Willis v. Directors of Poor, 284 Pa. 138; Mansel v. Nicely, 175 Pa. 367; Com. v. Mitchell, 82 Pa. 343; Hibbs v. Arenberg, 276 Pa. 24.
The alleged contract was unlawful because not authorized by the board of commissioners acting as a board: Pike County v. Rowland, 94 Pa. 238.
The alleged contract was ultra vires. Bucher v. Northumberland County, 209 Pa. 618.
James O. Campbell, First Deputy Attorney General, and W. H. Kirkpatrick, of Kirkpatrick & Maxwell, with them T. McKeen Chidsey, John L. Shelley, Jr., and George W. Woodruff, Attorney General, for appellees. -- The procedure followed in the letting of the contract in question is authorized by the Acts of June 12, 1919, P.L. 450, as amended by the Act of March 10, 1921, P.L. 26, which acts, with respect to the matters complained of, supersede the County Controller's Act: Erie R.R. v. P.S.C., 77 Pa.Super. 196; State Line & Juniata R.R. Co.'s App., 77 Pa. 429; Gas & Water Co. v. Downingtown Boro., 193 Pa. 255.
The contract is valid and binding and county funds may be expended under it.
The contract was not ultra vires: Williamsport v. Com., 84 Pa. 487; McCormick v. Twp.. 246 Pa. 169; Warner v. Poor Directors, 38 Pa.Super. 437.
H. M. Hagerman, for the Borough of Bangor, cited on the question of laches: Keeling v. Ry., 205 Pa. 31; Lemoyne v. County, 213 Pa. 123; O'Malley v. Boro., 198 Pa. 525.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
A public highway, in the County of Northampton, passed through the townships of Washington and Plainfield and the borough of Bangor. It was proposed that it be made a county road to be built under the supervision of the State, and petitions were presented by the three municipalities mentioned requesting the county commissioners to apply to the highway department for the necessary surveys. By due corporate action, those interested made formal application, agreeing to repay the county for a certain proportion of the cost incurred, upon completion of the improvement. This resulted in a formal request by the county to the highway department to proceed as directed by the various applicable statutes, the written understanding being that the entire cost would be paid by it in the first instance, but preserving the right to compel reimbursement, in part, from the petitioning municipalities, as set forth it their resolutions asking that the improvement be undertaken. At this point, it may be observed that in the bill, which is the foundation of the present proceeding, it is averred that the amounts stipulated to be respectively paid were in excess of the capacity of the petitioners to borrow, without a vote of the electors, but this position was abandoned on hearing, and is not raised on this appeal. Certainly, the commissioners had the right to assume that the local authorities were acting regularly, and, presumably, in a lawful manner: Jefferson County v. Rose Twp., 283 Pa. 126.
After due deliberation, the petition to the state highway department was signed by all three commissioners, and forwarded. As a result, investigation followed, surveys were made by competent state engineers, and careful estimates prepared showing the probable cost of the improvement. Due advertisements were later inserted by the highway commissioner, in the manner provided by the Sproul Act (May 31, 1911, P.L. 468, section 14). After comparison of the bids with the calculations deemed reasonable, as determined by the department, Raub, one of the defendants here, was chosen as the lowest responsible contractor, the county notified of this action and the price agreed upon. On October 1, 1923, an agreement was entered into between the county and state, approved by the controller, by which it was stipulated that the work should be done under the direction of the latter, a formal contract to be executed by the former with the contractor. On the day following, the agreement with Raub to do the work for the amount bid was signed by two of the commissioners at a regular meeting, the third, who was opposed to the entire improvement, being absent. Preparation for the carrying on of the construction was immediately begun, and tools and machinery placed upon the ground to the value of $19,000.
Though the question had been discussed since 1922, the contract let on October 2, 1923, and preparations for carrying it out begun immediately thereafter, it was not until March 21, 1924, that the present bill was filed by taxpayers to restrain the performance of the work, and to prevent the expenditure of any county funds on account thereof. The invalidity of the entire proceeding was averred, both on the ground that the county was without power to undertake the improvement, and because of certain alleged irregularities to be noticed hereafter. Of course, the taxpayers had such interest as made possible the institution of such a proceeding (Page v. King, 285 Pa. 153; Phila. v. Gorgas, 180 Pa. 296), but it could be successfully maintained only if they were able to point out some threatened legal wrong. A preliminary injunction was granted, but subsequently dissolved. The same conclusion was reached by the learned court below after final hearing, when findings of fact and conclusions of law were declared. On exceptions, the court in banc concurred in dismissing the bill, and, from the final decree entered, this appeal has been taken.
In considering the questions involved it must be remembered that the facts determined by the chancellor are not to be reversed in the absence of manifest error, and are to be given the same weight as the verdict of a jury: Houghton v. Kendrick, 285 Pa. 223; Grace v. Moll, 285 Pa. 353; Archbald Coal Co. v. Murrin, 284 Pa. 69. Here, none of the evidence has been printed, and we must assume there was sufficient to justify the statements set forth by the court below. Indeed, they do not seem to be challenged, except as appears in the thirteenth assignment, where evidently an immaterial clerical error was made in stating the amount of the bid, and in the fourteenth, where the statement is made that the contract of Raub was executed with the approval of the county controller. The former signed the agreement with the highway department on August 1st, and we must assume that there was testimony justifying the court in saying that the controller was satisfied with the contract made the following day in accordance with the stipulation he had already assented to.
Appellants first contend that the county was without authority to expend funds for construction of a highway, such as here proposed, passing through two townships and one borough. Certainly, it would have had no such power under the Act of 1834, regulating the laying out of township roads, nor was it a county road such as contemplated by the Act of 1895. In 1911, the Commonwealth determined upon a new policy in road building, having for its ultimate purpose the development of a uniform system of permanent highways to be constructed under the supervision of competent engineers. From year to year, the plan, thus begun, has been extended and expanded with resultant benefit to the public at large. We now have state highways, state-aid highways, county roads and township roads. Even the latter class has been gradually brought under control of the highway department, and the plans and specifications for these, as well as expenditures for their improvement, and contracts so providing, must first be approved: Acts July 16, 1917, P.L. 1004; July 8, 1919, P.L. 770; and Administration Code, June 7, 1923, P.L. 498, section 1906 (a) and (b). So, the power of counties to expend money for construction has been broadened, and township roads may be built jointly with the local municipality (Act May 24, 1917, P.L. 291), or the county may contribute to the improvement or rebuild the same with its own funds. This is allowed by the Acts of June 12, 1919, P.L. 450, and March 10, 1921, P.L. 26, the latter expressly providing "that when the improvement and maintenance of any public highway in the county is desired by the county without the intervention of the township or borough, the commissioners of the said county may make application for approval directly to the state highway department." It is by virtue of the cited authorization that the present proposed improvement was undertaken by the county, it agreeing to pay the entire cost, though the townships and borough separately agreed to partially reimburse it for the outlays made.
The general procedure to be followed in the improvement of all state roads, state-aid roads and roads...
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