City of Pittsburgh v. Biggart

Mr. Justice Woodward delivered the opinion of the court, January 7th 1878. By the 64th sect, of the Act of the 4th of May 1864, it was directed that “ the commissioners of counties, or the mayor and councilmen of cities” should “provide for each company of militia [427] within the limits of their respective places, a suitable armory, or place of deposit for the arms, equipments and equipage furnished by the state, * * * the rent of which armory shall be paid out of the brigade fund.” Under this statutory provision, an application for quarters was made to the mayor of Pittsburgh on behalf of a military organization, described in the testimony indifferently as a ‘•'company” and a “battalion,” known as the .Du Quesne Greys. The mayor referred the application to the police committee of the city councils, and three members of that committee were appointed a sub-committee to make the required selection. They concluded an arrangment with Rody Patterson for the occupancy of the second and third floors of a building on Fourth avenue for three years, at an annual rent of eighteen hundred dollars. The premises were occupied by the organization throughout the term. Rent was paid for one year, and this suit was brought to recover the arrears. It is shown by the evidence that the sub-committee reported to the police committee the agreement they had made. But there is nothing in the paper-books tending to prove that any action was taken by the city councils. They neither authorized nor ratified the agreement; and it does not affirmatively appear that the right to bind the city by their contract was within the scope of the police committee’s powers. It was insisted on at the trial and in the argument hero, that on this ground of the entire failure of evidence of participation by the councils, the plaintiff could not recover. If it were clear that the action was on the express contract, the view of the counsel might be sustainable. But for aught that appears it may have been brought for the use and occupation of the premises. All that the docket entries set out are the issuing of a summons in case and the filing of a plea, without reciting it or indicating its character. Ample evidence that possession of the rooms was taken and retained for three years was produced. Some of the witnesses testified to facts from which the jury could infer that the possession was of a kind to give it public notoriety. No objection was made during the term on behalf of the city to the agreement the police committee had entered into. Eighteen hundred dollars on account of the rent were paid out of the brigade fund to Mr. Patterson. And above all, the organization was legally entitled to an armory which the city was legally bound to provide. Assuming, in the absence of the pleadings, as it is due to the judge who tried the cause to assume, that the nature of the action was such as to warrant the submission of the facts to the jury, it was not error to charge that if the plaintiff’s evidence was believed, he was entitled to a verdict. As another ground of defence, it was urged that the Act of 1864 made the mayor and councils the mere agents of the state in contracting for the armory, and that no liability for rent beyond the amount to be realized from the brigade fund, could be charged [428] on them. But the city officers were required to “provide” an armory. They could do this by leasing, purchasing or erecting a proper building, or by appropriating to military use some building belonging to the municipality. They would be entitled to reimbursement out of the brigade fund in either case. That was a source of compensation to which the act certainly could not have intended to relegate the lessor. To do that would be to cast the duty of providing the armory not on the city, but on him. This “brigade or county military fund,” as it is described in the Act of the 7th of April 1870, is made up of taxes duly assessed, collected by the officer who collects the general taxes, and paid into the county treasury to await the order of the board of officers of the proper brigade. Its amount can be readily ascertained, and information as to the extent of the demands upon it can always be furnished by the members of the military board. With such means of knowledge there should be no embarrassment in securing adequate provision of armories for their military companies by the municipal authorities. Their expenditures can easily be made proportionate to the amount the law has dedicated to their reimbursement. But if they provide accommodations for any organization by contract with an individual property-owner, they are bound to comply with its stipulated terms. The brigade fund was designed to be an indemnity to them, and not means of payment within the property-owner’s reach. Judgment affirmed.