City of Erie ex rel. Erie Paving Co. v. A Piece of Land Fronting on Eighteenth Street

Opinion by Mr. Justice Green, The portion of the statute upon which the defense in this case is founded (act of May 23, 1889, P. L. 303, art. 9, sec. 5) is in the following words, “ Every contract involving an appropriation of money, shall designate the item of appropriation on which it is founded, and the estimated amount of the expenditure thereunder shall be charged against such item, and so certified by the controller on the contract before it shall take effect as a contract, and the payments required by such contract shall be made from the fund appropriated therefor.” The city controller certified the contract as follows: “ I hereby certify that councils have appropriated by bill No. 492, approved March 18th, 1890, the sum of forty-one thousand five hundred dollars for the construction of an asphalt pavement on Eighteenth street extending from the west line of Peach street to the east line of Liberty street, and that I have credited, in accordance with bill No. 495, approved April 7th, 1890, a fund for paving street intersections, etc., on Eighteenth street, from the west line of Peach street to the east line of Liberty street with the sum of four thousand seven hundred and sixty dollars ($4,760).” It is certainly the fact, and is conceded by the learned counsel for the plaintiff, that the certificate of the controller is not [481] in compliance with the provisions of the law as to what the certificate should contain. It does not certify that the controller has charged the amount of expenditure for this pavement against the appropriation which was made for its payment, and the statutory consequence of such omission is, that the contract between the city of Erie and the Erie Paving Company cannot “ take effect as a contract.” It results that the paving company has no contract upon which it can recover, and it is therefore to be regarded as a mere volunteer, having no lawful claim against this defendant. In Reilly v. Philadelphia, 60 Pa. 467, we held that where councils by resolution authorized a department to contract for paving, with the condition that the contractor should be selected by a majority of the owners of the front to be paved, the cost of paving etc., to be collected from the owners on whose front the work should be done, the claimant could not recover unless he first proved that he had been selected by a majority of the owners, and that the contractor doing the work without such selection was a mere volunteer and could not recover from the city or from the owners. Williams, J., delivering the opinion said, “ But under the provisions of the ordinance a contract with the department of highways would give him no authority to pave the street and to collect the cost thereof from the adjacent lot owners, unless he was selected by them to do the work. The department had no authority to enter into a contract with him unless he was selected by a majority of the lot owners. . . . Having submitted the selection of the paver to the lot holders, the city could not adopt the work of one not chosen by them and impose on them the obligation of paying for its cost. The choice of the paver belonged exclusively to the lot holders, and his selection by them was a condition precedent to the right to do the work, and make it a lien on the property fronting on the street.” So in the present case the contract of the city with the pav-' ing company must be certified in a certain manner by the controller, “ before it shall take effect as a contract.” ■ This requirement is a condition precedent to the legal efficacy of the contract, and without it there is no efficacious force in the attempted contract as to any one. As this requirement is entirely absent from the controller’s certificate the conclusion [482] follows that there never was a lawful contract for the paving in question, and hence there can be no recovery. In the case last cited the paving was all done by the contractor under a contract with the highway department, but because the condition precedent was not performed, to wit, a selection of the paver by a majority of the lot owners, the contractor could recover nothing from the owner. We said, “ If he (the paver) was not selected by the lot owners, and if he did not contract with the department of highways to do the paving, he was a mere volunteer, and is not entitled to recover from the city or the lot holders the cost of the paving.” The same principle was enforced in Olds v. Erie City, 79 Pa. 380, where we held that there could be no recovery of a paving bill against the owner because notice of the ordinance, under authority of which the paving was done, was not given as required by law. Gordon, J., said, in the opinion, “ There is, however, this important proviso, to wit, ‘that no ordinance for any of the above named purposes shall be passed until days notice of the improvement prayed for has been given in the official paper of the city.’ We thus observe that inquiry into the character of the petition is barred, but this second condition, to wit, publication, becomes material and necessary to the jurisdiction of the councils inasmuch as it is substituted' for that which, but for the preceding part of the second section of the act, would be material and necessary. . . . The action of the councils under this act was quasi judicial in its character, and it is a fundamental rule that all such proceedings where they affect the rights of property or the citizen are nugatory if unaccompanied by reasonable notice. In the case in hand no such notice as that required by the statute was given. The imperative requisition is publication in the official paper of the city for days.” For these reasons the judgment in favor of the plaintiff was reversed without a venire. In Erie City v. Brady, 127 Pa. 169, the same doctrine was applied. In Fell v. Philadelphia, 81 Pa. 58, the distinction between mere irregularities and formal details in the execution and performance of agreements between the city and its contractors, and other objections which affect the jurisdiction or power over the subject-matter, is carefully pointed out. In the one class recovery may be liad, and in the other not. There were nu [483] merous objections made by the lot owner in the last case to a recovery by the contractor for the paving claim, some of which raise questions of irregularities in the execution and performance of the contract between the city and the contractor, and as to these we held that the owner could not make defense. But there was also a defense grounded upon the omission of the contractor to give notice by publication in two daily papers of certain specific matters mentioned in the ordinance. Woodward, J., delivering the opinion, said, “ It has been uniformly held that it is not competent for a defendant to raise questions relating to the formal details of agreements between the city and its contractors, and to their execution and performance, where the acts of the municipal officers have been ratified, and the work done by the contractors has been accepted. . . . Other deficiencies, however, are developed in this record which have more significance. The ordinance of 31st of December, 1862, is in these words: ‘ Hereafter before any contract for paving any street or streets shall be entered into by the highway department, the person or persons applying for such contracts shall give notice of such application, such notice to set forth: 1. The name of the contractor ’ etc. (in all four distinct matters). “No evidence was given by either party on the trial on the subject of notice, by these contractors. . . . The facts prove affirmatively that the legal requisites of such a contract between the city and the contractors as would create an obligation on the defendant to pay were not fulfilled. There is no room for the application of the maxim omnia prEesumuntur rite esse acta, for that principle heals only apparent irregularities or omissions, where jurisdiction or power over the subject-matter is clearly vested: ’ Sharswood, J., in Pittsburg v. Walter, 69 Pa. 365. The irregularities here upturn the very foundation of the jurisdiction. In view of the good faith in which the contract was entered into, and with which the work has been done by the contractors, it has been with reluctance that this conclusion has been reached. But this is not a question between the city and the contractors, nor between the contractors and the property owners who employed them. It arises between the city and the defendant. The latter had assumed no duty expressly or by implication. He can be made subject to a legal obligation only where the power conferred on the municipal [484] authorities has been legally exercised. Like the City v. Lea, 5 Phila. R. 77, this is, ‘ a case depending wholly on the forms and requisitions of law, and in no degree on consent or contract, in which one of the forms, one of the conditions which the law itself has imposed, is wholly wanting.’ It is within the principle of Phila. v. Reilly, 60 Pa. 467; of the City v. Stewart, 1 Weekly Notes, 242, and of Pittsburg v. Walter, supra. The city could have waived irregularities and defects of form. . . . but jurisdiction over the defendant and his property could be obtained only by pursuing rules prescribed by law, and the record proves that these rules could not possibly have been observed.” It will be noticed that the prohibitive words of the ordinance in the above case are of a quite similar character to those in the case at bar. They are “ hereafter, before any contracts for paving any street or streets, shall be entered into by the Highway Department, the person or persons applying for such contracts shall give notice ” etc. Here the words are, “ and the estimated amount of the expenditure thereunder shall be charged against such item and so certified by the controller on the contract before it shall take effect as a contract.” In either case there shall be no contract unless the thing directed to be done shall actually be done. The foregoing principles and authorities cited dispose of the present contentions, and they constitute a bar to any recovery by the plaintiff in this case. Judgment affirmed.