Miller v. West View Borough
| Decision Date | 20 April 1914 |
| Docket Number | 71-1914 |
| Citation | 57 Pa.Super. 14 |
| Parties | Miller, Appellant, v. West View Borough |
| Court | Pennsylvania Superior Court |
Argued December 4, 1913
Appeal by plaintiff, from judgment of C.P. Allegheny Co.-1911, No 894, on verdict for plaintiff in case of Cyrus E. Miller surviving partner of John G. Trimble and Cyrus E. Miller trading as Trimble & Miller, v. West View Borough.
Assumpsit for engineering work. Before MacFarlane, J.
From the pleadings it appeared that plaintiffs claimed to recover the sum of $ 2,976.87, with interest, as compensation for the preparation of plans and specifications for a thoroughfare in the borough of West View, and also the sum of $ 325, with interest, for services rendered in the construction of a " disposal plant." The facts of the case are stated in the opinion of the Superior Court.
At the trial the jury returned a verdict for $ 3,437.90. Subsequently the court entered judgment as follows:
" And now, to wit, May 1, 1913, for the reasons set forth in the opinion filed, it is now ordered that the verdict in the above case be reduced by deducting therefrom the amount claimed for preparing and furnishing plans, surveys and estimates for the proposed thoroughfare or highway, to wit, the sum of Three thousand and twenty-seven and 64-100 ($ 3,027.64) dollars, and that judgment be entered for the balance of said verdict, viz., Four hundred ten and 26-100 ($ 410.26) dollars, upon payment of the verdict fee."
Error assigned was the judgment of the court.
Frederic W. Miller, with him John S. Robb, Jr., for appellant. -- The plaintiff presented a case which entitled him upon its merits to a judgment for the full amount of the verdict: Jones v. Schuylkill Light, Heat & Power Co., 202 Pa. 164; Lansdowne v. Citizens' Electric Light & Power Co., 206 Pa. 188; Kolb v. Tamaqua Borough, 218 Pa. 126; Scranton & Pittston Traction Co. v. Canal Co., 1 Pa.Super. 409.
A. C. Johnston, with him Chas. M. Johnston, for appellee. -- Under their general contract with the borough of March 15, 1910, council, without the approval of the chief burgess, had no authority or power, by motion, resolution or otherwise, to employ or direct plaintiffs to perform work of this character and thereby bind the borough for its payment: Com. v. Beaver Borough, 171 Pa. 542; Jones v. Schuylkill Light, Heat & Power Co., 202 Pa. 164; Com. v. Diamond Nat. Bank, 9 Pa.Super. 118; Long v. Lemoyne Borough, 222 Pa. 311; Chester v. Eyre, 181 Pa. 642; Shaub v. Lancaster, 156 Pa. 362; Eliott v. Monongahela, 229 Pa. 618; Addis v. Pittsburg, 85 Pa. 379; Reilly v. Phila., 60 Pa. 467; Erie v. Piece of Land, 176 Pa. 478; Sower v. Phila., 35 Pa. 231; Kepner v. Com., 40 Pa. 124; Waln v. Phila., 99 Pa. 330; Howard v. Olyphant Borough, 181 Pa. 191; Kolb v. Tamaqua Borough, 218 Pa. 126; Carpenter v. Yeadon Borough, 208 Pa. 396; Lansdowne v. Citizens' Elec. Light & Power Co., 206 Pa. 188; Dyer v. Bomberger, 13 Lanc. L. R. 6; Com. v. Buchanan, 6 Kulp, 217; Galloway v. Gilmour, 5 Pa. Dist. 553; Washington Female Seminary v. Washington Borough, 18 Pa.Super. 555; Cumberland Valley Elec. Pass. Ry. Co. v. Carlisle Borough, 7 Pa. Dist. 323; Rengier v. Lancaster, 22 Lanc. Law Rev. 193; Citizens' Bank v. Spencer, 126 Iowa, 101 (101 N.W. 643); Zottman v. San Francisco, 20 Cal. 96; Head v. Provident Ins. Co., 6 U.S. 127; Murphy v. Louisville, 72 Ky. 189.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
The contract of the plaintiffs with the defendant as shown by the plaintiffs' proposal of March 7, 1910, and the acceptance thereof by the borough on March 15, 1910, embraced three subjects: (1) compensation at the rate of $ 200 per year for " routine engineering work of streets and sewers; " (2) disposal plant construction for which compensation was to be allowed at the rate of two and one-quarter per cent of the cost; (3) for other construction work two and one-quarter per cent for plans and specifications and two and one-quarter per cent for engineering and superintending construction complete. The contested part of the plaintiff's claim is for compensation under the third paragraph of the contract the work performed being the preparation of plans and estimates for a proposed " thoroughfare" through the borough. Instruction to make the plans and estimates was given by resolution of the council dated May 5, 1910. The thoroughfare project was not undertaken and the plaintiffs' claim was rejected because the resolution authorizing the preparation of plans and estimates for the improvement was not presented to, and signed by, the burgess. The third section of the Act of May 23, 1893, P. L. 113, provides that every ordinance and resolution which shall be passed by said council shall be presented to the chief burgess of such borough to be approved or disapproved by him. In construing this section a distinction has been made between acts of the council by ordinance or resolution which are of a legislative character and those which are ministerial or executive. The latter include the transaction of current business, the ordinary administration of municipal affairs and the awarding of contracts which have been previously authorized. In the first class are permanent regulations for the government of the borough, the granting of privileges to occupy streets and the creation of liability by contract: Howard v. Olyphant Boro., 181 Pa. 191; Seitzinger v. Electric Co., 187 Pa. 539; Jones v. Schuylkill Light, etc., Co., 202 Pa. 164; Elliott v. Monongahela City, 229 Pa. 618; Com. v. Diamond National Bank, 9 Pa.Super. 118. Legislation by a borough may be by resolution as well as by ordinance but the requirements essential to the validity of an ordinance must be observed when the action is legislative: Carpenter v. Yeadon Boro., 208 Pa. 396; Kolb v. Tamaqua Boro., 218 Pa. 126. The burgess is constituted a part of the law-making power of a borough and all ordinances and resolutions other than those which are purely ministerial must be presented to and approved by him to give them effect unless in case of disapproval they are adopted over his veto in the method prescribed by the statute. That the project which the borough authorities had in contemplation, and in the...
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