Melick v. City of Williamsport

• Decision Date: 11 July 1894
• Docket Number: 373
• Citation: 162 Pa. 408,29 A. 917
• Parties: Melick, Appellant, v. Williamsport
• Court: Pennsylvania Supreme Court

29 A. 917

162 Pa. 408

Melick, Appellant, v. Williamsport

No. 373

Supreme Court of Pennsylvania

July 11, 1894

Argued March 14, 1894

Appeal, No. 373, Jan. T., 1894, by plaintiff, H. B. Melick from judgment of C. P. Lycoming Co., Dec. T., 1892, No. 401 in favor of defendant on case stated. Reversed.

The case stated was as follows:

"That at the municipal elections held the third Tuesday of February, 1888, H. B. Melick, above named as plaintiff, was elected city assessor of the city of Williamsport for the year commencing the first of April following said election, by the qualified voters of said city, under the provisions of the act of May 24, 1887, providing inter alia for city assessors.

"That the select and common councils of said city passed an ordinance providing for the compensation of city assessors approved by the mayor of said city March 19, 1888, fixing the salary of each city assessor at the sum of $250 for the first year, being the year of the plaintiff's election to said office.

"That the said plaintiff was duly qualified and entered upon the duties of said office as defined by said act and assessed all the real property in said city, being employed for several months in so doing, and performed such other duties as pertained to said office.

"That upon presentation of his claim for compensation, as provided by the aforesaid ordinance, to the city controller, for his signature, he refused to countersign the same; alleging that there was no authority of law for so doing.

"That the said plaintiff employed counsel and prepared to bring suit against the defendant for the labor and services done and performed by him in his office of city assessor for which defendant had assumed to pay the amount set out in the ordinance, when, at the suggestion of members of council, a compromise was effected, by the terms of which, in consideration of plaintiff's agreeing not to sue and endeavor to collect the whole amount of his claim, an ordinance should be passed providing for the payment of the sum of $125, to which plaintiff assented and brought no suit, and councils passed ordinance No. 382, file of common councils, which was returned by the mayor without his signature on March 17, 1890.

"That notwithstanding said agreement of compromise, the city controller of the city of Williamsport has refused and continues to refuse to countersign a warrant for the payment of the sum of $125, being the one half of the amount fixed by the original ordinance under said agreement of compromise, whereupon plaintiff brought this suit to recover the amount of $125 with interest if entitled thereto.

"That on January 7, 1889, the Supreme Court of Pennsylvania declared the act of May 24, 1887, to be unconstitutional and void.

"It is hereby agreed that if the court be of opinion that upon the foregoing facts as admitted and agreed upon, the plaintiff is entitled to recover, then judgment is to be entered in favor of the plaintiff for the said claim and costs; otherwise judgment to be entered for the defendant for costs. Each party expressly reserving the right of appeal to the Supreme Court."

Judgment for defendant. Opinion by SAVIDGE, P.J., specially presiding.

Error assigned was order as above.

Judgment reversed, and judgment is now entered for plaintiff.

H. C. McCormick, A. W. King and S. T. McCormick with him, for appellant, cited: Act of May 13, 1889, P.L. 196; Act of May 23, 1889, P.L. 332; Devers v. York City, 150 Pa. 208; Donley v. Pittsburg, 147 Pa. 348.

As to validity of consideration for compromise by ordinance: Parsons on Contracts, p. 438; Chamberlain v. McClurg, 8 W. & S. 37; O'Keson v. Barclay, 2 P. & W. 531; McCoy v. Hutchinson, 8 W. & S. 66; Cahoon v. Hollenback, 16 S. & R. 425; Robinson v. Eldridge, 10 S. & R. 143; Gormley v. Gormley, 130 Pa. 467; Turnpike Co. v. Hendel, 11 S. & R. 123; Bennet v. Paine, 5 Watts, 261.

As to right of municipality to effect compromise: Cooley's Const. Lim. 194; 1 Dillon's Mun. Corp. § 477; 15 A. & E. Ency. L. 1049; Petersburg v. Mappin, 14 Ill. 193; Agnew v. Brall, 124 Ill. 312; Hall v. Baker, 74 Wis. 118; Kane v. Fond du Lac, 40 Wis. 495; Collins v. Welch, 58 Iowa 72; Board of Liquidation v. R.R., 2 A. & E. Corp. Cas. 156; Tuttle v. Weston, 2 A. & E. Corp. Cas. 168; Prout v. Fire Dist., 154 Mass. 450.

N. M. Edwards, city solicitor, for appellee, cited: Ayar's Ap., 122 Pa. 284; Norton v. Shelby County, 118 U.S. 442; Com. v. Harding, 87 Pa. 353; Hildreth v. McIntire, 1 J. J. Marsh, 442; Meagher v. County, 5 Nev. 244; City v. Sears, 2 Col. 588; Dillon's Mun. Corp. §§ 230, note 1, 274, 276, 457, 935; Phila. v. Flanigen, 47 Pa. 21.

Before STERRETT, C.J., WILLIAMS, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE MITCHELL:

The effect of the unconstitutionality of so important a statute under which so much had been done, as the act of May 24, 1887, P.L. 204, dividing cities into classes, was, as said in Devers v. York, 150 Pa. 208, intolerable confusion, and the legislature when it addressed itself to the task of providing a remedy, intended to make it complete, as far as lay in its power. The act of May 13, 1889, P.L. 196, therefore declared all the existing councils "to be and to have been legally constituted councils," and all their ordinances and resolutions were validated and declared to be in full force. The operation of the act was intended to be upon the past even more than upon the...