City ex rel. O'Rourke v. Hays

Mr. Justice Gordon delivered the opinion of the court, March 1st 1880. The Act of February 2d 1854, clothes the city councils with full power to order the paving of streets and foot-ways, and to charge the expense to the owners of the ground in front of which the work is done. Thus the first part of this act gives them the unqualified power to pave the streets, and this they may do by contract or otherwise, as to them may seem proper, whilst the latter part prescribes the method of taxation by which the means may be raised to pay for the work. It is not, indeed, pretended that any Act of Assembly requires the property owners to be consulted, either as to the character of the work proposed to be done, or as to the contractor who shall execute that work. As was held in Dickinson v. Peters, 6 W. N. C. 458, the councils may, in the face of their own ordinance, order a contract to be awarded to ono not the choice of the property owners. The case of the City v. The Railroad Co., 7 Norris 314, did not turn upon any want of power in the city to make the contract as it was made, but on the fact that its agent, the Highway Department, had exceeded its authority in making the contract with O’Rourke, notwithstanding the fact that a majority of the property owners had refused to indicate him as their choice. Therefore, this contract could not be enforced against the lot-holders, for the reason that it was not binding on the city. It was on this ground alone, and not because of any equity in themselves, that they were enabled to resist payment. But under the powers vested in the city councils, already referred to, there is no doubt that they could have approved and accepted the work, and so have bound the city. And whether it was proper so to do or not, was a question for them, and not for the property owner. His right was to have a good pavement in front of his premises, and personally he had no other right. When, therefore, by the ordinance of December 3d 1878, the councils ratified the contract with O’Rourke, the city became bound, and the defence by the property owners, on that ground, was, of course, "no longer available. In principle this case is the same as McKnight v. City of Pittsburgh, 10 Norris 273. The defence to the lien in that case was, that the contract was invalid in that the city engineer, by whom the contract was executed on part of the city, had exceeded his authority in adopting a grade different from that prescribed by ordinance. But the power of the councils to ratify the contract, thus rendered void by the act of the agent making it, was by this court sustained, in the language following : " Such being the [76] case, the engineer exceeded his authority when he disregarded that grade and adopted a new one, and the city, at any time before the adoption, by it, of the work done by the contractor, might have repudiated the act of its engineer and avoided the contract.’ But it could not do this after such adoption; for, as in the case of a private person, it having the power to contract, the power to adopt a contract, made for its benefit, is necessarily involved in the original power. It is, indeed, but a question of power that we have to consider; that being determined all is determined. Hence, we repeat, the city having the undisputed power to establish grades, and to make contracts for paving, the correlative power of adopting grades and contracts made by its officers, for its own benefit, necessarily follows.” In the case in hand, as in the one above cited, the agent exceeded its authority, but as the contract was one which the city might have authorized, it could waive the irregularity, -and adopt that contract after it was made. The question of adoption, however, as we have already said, was one exclusively for the city, and with which the citizen had nothing to do. That the cost of the work is to be assessed on his property does not alter the case, for the assessment is, after all, but a municipal tax, and, we presume, were this a repaving, and, therefore, payable by general taxation, no one would contend that a citizen could defend against the payment of his tax on the ground that the contract, under which the work had been done, though approved and adopted by the city, had been originally void, or voidable, by reason of a want of authority in the agent by whom it was executed. Thus, if we leave out of view, as we should do, the peculiar method of the assessment and collection of the tax by which the work is to be paid for, the matter becomes very clear and obvious. The doubt and obscurity arise only when we treat these paving contracts as somehow made with or for the lot-owner, and therefore requiring his ratification for its validity. The judgment of the court below is reversed, and it is now ordered that judgment on the demurrer be entered for the plaintiff, for the amount of the claim filed with interest and costs; liquidation to be made by the prothonotary of said court.