Ruppert v. Mayor & City Council of Baltimore

• Decision Date: 09 June 1865
• Citation: 23 Md. 184
• Parties: JOSEPH RUPPERT and LEONARD J. BANDEL, v. THE MAYOR & CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

23 Md. 184

JOSEPH RUPPERT and LEONARD J. BANDEL, v. THE MAYOR & CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland.

June 9, 1865

APPEAL from the Superior Court of Baltimore city.

The action in this case was instituted to recover a sum of money alleged to be due to the appellants from the appellee, for digging an Artesian well in Baltimore city. The declaration contains a special count and the common counts, and to these the usual pleas were put in, denying the contract in said declaration. A trial was had, and the jury rendered a verdict in favor of the defendant.

At the trial of the cause, the appellants proved an application to the City Commissioner, from sundry owners of houses and lots in the neighborhood of the proposed well, asking that an Artesian well be sunk, and a pump erected, under the direction of the Commissioner, and agreeably to the ordinances of the Mayor and City Council. In conformity with said application, the City Commissioner advertised for sealed proposals for digging or sinking the well, and erecting a pump therein, " including a copper or composition cylinder, and that the contractor will be required to keep the pump in repair for one year after completion."

The appellants, under said advertisement, made the folfowing proposal:

" BALTIMORE, July 4, 1855.

Joseph P. Shannon, Esq., City Commissioner:

SIR:--We beg leave to offer this proposal for sinking an Artesian well, on Castle alley, near Pratt street, for the sum of $4.50 per foot, through sand, clay or gravel, and finish the same according to city requirements, and keep the same in repair for one year. Hoping that this may secure the work, we remain, & c.,

BANDEL & RUPPERT."

On the back of this was written--" The within proposal accepted.

W. H QUINCY, Clerk."

The appellants proceeded to dig the well, under the directions of the Assistant City Commissioner. They obtained water at two successive depths of digging, but not of a quality or quantity satisfactory to the Commissioner and finally abandoned the same, but without being directed so to do by the Commissioner, or any party authorized to act on behalf of the Mayor and City Council.

The plaintiffs asked the Court to instruct the jury as follows:

1st. If the jury find from the evidence that the contract given in evidence was made by plaintiffs with the defendant, by its authorized agent, acting in its behalf, and shall find that in the digging, to perform said contract, the said plaintiffs penetrated at the point indicated by the agent of said defendant for such digging, if they shall find that any such point was so indicated, through all the sand, clay and gravel encountered in such digging; and shall further find that the further process of such digging was obstructed by rock, or other hard substance, not clay, sand or gravel, that then plaintiffs are entitled to recover.

2nd. If the jury find from the evidence that the contract given in evidence was made by plaintiffs with the defendant by its authorized agent, acting in its behalf, and shall find that the plaintiffs performed said contract, that then said plaintiffs are entitled to recover.

These prayers were rejected, and the Court granted the following offered by the defendant:

1st. That under the Ordinance No. 40, of the Revised Ordinances of 1850, and Ordinance No. 11, approved 17th March 1855, the City Commissioner is authorized to sink an Artesian well upon the terms and in the manner therein specified, and the contract which, by force of such ordinances, he is empowered to make, must be one authorized by the said ordinances, and if not, no responsibility can thereby be imposed on the Mayor and City Council of Baltimore.

2nd. That under the true construction of the said ordinances, the work contracted for must be paid for as therein mentioned and set forth; and that the Mayor and City Council of Baltimore became responsible for the payment of such work in the manner and to the extent declared in the said ordinances; and that the payment therefor and the expenses thereof must be apportioned on all the assessable property that in the judgment of the City Commissioner is thereby benefited, and until such assessment shall have been made, there is no responsibility on the part of the Mayor and City Council; and that in case when there is a failure to procure a supply of water, the petitioners who have applied for the sinking of the Artesian well, are to be responsible for the expenses which may be incurred in the attempt to sink the said well, and not the Mayor and City Council of Baltimore.

The plaintiffs excepted to the refusal of the prayers offered by them, and to the granting of those of the defendant, and this constitutes the first bill of exceptions.

The defendant having offered in evidence the ordinances mentioned herein, then produced three of the signers to said application to testify to the non-fulfillment of the contract, who being excluded by the Court upon the objection of the plaintiffs, the defendant's counsel, to restore their competency, produced a release of their liability, accrued by reason of their so signing, executed by the Mayor of the city, George W. Brown, Esq., in the exercise of an assumed official power, and who had put the seal of the city thereto, without any special ordinance of the City Council enabling him so to do, but by and with the advice of the City Counsellor; the plaintiffs still objecting to their competency, and denying the power of the Mayor to execute any such release, the Court overruled the objection and admitted said witnesses to testify; to which the plaintiffs excepted, and this constitutes the second bill of exceptions.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J. George H. Williams and Orville Horwitz, for appellant:

The plaintiffs submit that the verdict should be reversed, for the following reasons:

1st. By Ordinance No. 40, of Revised Ordinances of 1850, it is enacted, that " Whenever the inhabitants of any neighborhood desire a well to be sunk, and sixteen or more persons, owners of houses and lots, and interested, shall make application to the City Commissioner in writing, describing the place," & c., " the said Commissioner, if in his judgment the said well and pump is required for the public good, shall forthwith cause the work to be done by contract," & c., after due notice for proposals.

In this case every provision of the above has been complied with--the application was in writing by seventeen of the requisite and proper parties, the Commissioner determined it for the public good, and entered into the contract in the mode prescribed, and the work has been done. Now why is the city not responsible? Because, according to defendant's second prayer, the defendant's officer, the City Commissioner, has not complied with certain mandatory regulations prescribed by the ordinance, and with which the contractor has nothing to do. Now the city is to be reimbursed for the outlay, and what remedies she reserves to herself to effect such reimbursement, is one thing, the responsibility to the contractor quite another. This is not like the " paving and grading of streets regulated by Ordinance No. 15, in the same book; in those cases, sections 5 and 35 of the ordinance expressly stipulate, after creating a privity of contract between the property holders and the contractors, and reserving liens and remedies, that in no case whatever shall the city be made responsible for the paving done," & c., and payment to contractors is only authorized after the tax is collected from the property; and the provisions of this ordinance are required to be incorporated into every contract made under it.

The ordinance under which this was done, not only does not contain any such provisions, but section 2 of it looks to the payment of the contractor when the work is done, without any reference to whether the tax imposed for it shall have been received or not from the owners of the property benefited.

By Ordinance No. 11, approved March 17th, A. D. 1855, the provisions of the above ordinance as to wells, are made applicable to the construction of Artesian wells, with the proviso, that the sixteen signers shall be owners of property in the immediate neighborhood, and the further proviso, that the petitioners were to be liable " if a failure should take place in the attempt to procure water." Now if the city, at the instance of its property holders, engages in enterprises at their bidding, for the public good, who is, and ought to be responsible, but the party contracting? In grading and paving, the city refuses to be liable, and expressly incorporates the non-liability into the contract, but at the same time gives rights to the contractors, and not only provided the remedy by distress, by lien, & c., but section 9 of Ordinance No. 15, referred to, gives to the contractors the control over the bringing of suits, & c.

There are no such provisions in the ordinances relating to wells; when the jurisdictional facts exist, viz: the signing by a sufficient number of the proper persons, the judgment of the City Commissioner that the well is required, the advertised proposals, the accepted bid, and the work done, then it is submitted, the liability of the city is fixed; and whether the city officials thereafter perform the duties imposed upon them by the ordinance, is a matter over which the contractors have no control, and should have no concern; and as the city has not stipulated for its non-liability, and as the privity of the contract alone exists with it and plaintiffs, they, the plaintiffs, should have no difficulty in recovering the value of their services as measured by their contract, fully performed.

John L....