City of Philadelphia ex rel. Mack v. Gorgas

Opinion by Mr. Justice Green, The seventh point submitted by defendant was in the following words: “ If the jury believe that the land on Allen’s lane was not, at the time the paving was done, cut up into compact city lots, nor built upon as city lots, then the defendant’s lot is not liable to be charged by the foot front rule of assessment and the plaintiff cannot recover, the verdict should be for the defendant.” The learned court below affirmed this point thus directing the jury to find a verdict in favor of the defendant, if, at the time the paving was done, the land on Allen’s lane was not cut up into compact city lots, nor built upon as city lots. The time was fixed as the time when the paving was doné, and the character of the improvements was designated as cutting into compact city lots or being built upon as city lots. These considerations constituted the test, as fixed by the defendant herself, of liability to assessment for street paving. The same test, so far as the time was concerned, was also emphatically stated in the ruling of the court upon a question of the admissibility of certain testimony offered. When the witness Josephus Yeakle was on the stand he was asked, “ Q. At how much was it (the lot in question) assessed in 1889, if you know? [306] Objected to. The court: You may show the condition or character at the time the contract was made, and from that time on until the work was done. Mr. Hopple: You sustain the objection to offer to show what it was at the time the ordinance was passed. The court: Yes, sir. Mr. Hopple: I propose to show that the contract was made in 1890, and the work was done in 1890. I will ask the witness at what it was assessed in 1889. The court: That would make no difference; you must confine your offer to the time when the contract was made.” Other questions were asked, and other attempts were made, to prove the assessment made in 1889, but all were rejected on the same ground, to wit, that the time at which the character of the property was to be considered as to liability to assessment for the paving, was the time when the contract was made and the work done, and not the time when the ordinance was passed. These rulings constitute the basis of many assignments of error, but as they were made in precise accordance with the decision of this court in the case of Keith v. City, 126 Pa. 575, those assignments cannot be sustained. A careful examination of the opinion delivered by Mr. Justice Clark in that case convinces us that it sustains the syllabus in which it is distinctly stated that the question of liability of the property in question depends upon the conditions existing at the time when the improvement is made, and not at the time when the ordinance authorizing it is enacted. This disposes of the fourth, fifth, sixth, eighth, ninth, eleventh, twelfth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third and twenty-fourth specifications of error, all of which are dismissed. The property of the plaintiff which was charged with the assessment for paving was a lot two hundred and forty feet square containing a little more than one acre. There was erected on it a building in which the defendant kept a store, and also a stable used in connection with the store business. Some com, potatoes and other vegetables were raised upon it for family use, and some beans were sold. In tins connection some plowing and harrowing were done. Whether this constituted it a farm property, or whether it was to be regarded as city property, was the principal question in the case, and it was left to the jury to decide. The learned judge charged the jury as follows on this subject: “ And as counsel suggested to you, [307] you must settle the question as to whether the lot owned by this lady is a farm, or whether it should be classed as city property. If you regard it as farm land the verdict should be for the defendant. If you regard it as a city lot your verdict should be for the plaintiff.” This was a fair submission of the fundamental question of the case, and the jury very properly, as we think, found that it was not farm land but was a city lot. We do not think the remarks of the court on that subject, in the charge, are fairly subject to criticism. He called the jury’s attention to the leading characteristics which distinguish farm land from city lots, and it was entirely proper that this should be done. This small lot certainly was not a farm in any proper sense of that term. The street on which the property was situated had all the city improvements except a sewer. It had water-pipes and gas lamps and police, and it was sufficiently built up to be considered urban instead of rural. The jury has so found and it was their particular duty to determine this question. These considerations cover the seventh, tenth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and twenty-fifth specifications of error. When the court helow said in the charge to the jury, “ Is this property as it is now ripe for city improvements,” the judge certainly did not mean to designate the day of the trial, as the time at which the question was to he considered, because he had particularly decided that the time was when the contract was made and from that time until the work was done. He was speaking in the present tense, though as to a time which was past, and was not speaking technically as to the exact time when the character of the property was to be determined. A reading of the context clearly shows this. The first, second, third and twenty-sixth specifications of error are without merit. They call in question the validity of the contract for the paving work in question because it was signed on behalf of the city by the mayor and not by the department of public works. If the matter of signature were a jurisdictional fact, so that the contract would be void if not signed by a particularly designated officer, there would be controlling force in the objection : Erie City v. Moody, 176 Pa. 478. But there is no such provision in the legislation or in the ordinance which authorized this work to be done. The Act of 1885, article 14, P. L. 37, does direct that “ All contracts relating to city affairs shall be in writing signed and executed in the name of [308] the city by the officer authorized to make the same after due notice, and in cases not otherwise directed by law or ordinance such contracts shall be made and entered into by the mayor.” The ordinance of 1889, under which the work in question was done, ordained “ That the director of the department of public works be and he is hereby authorized and directed to enter into a contract with a competent paver,” etc. There is no provision avoiding the contract unless it is signed by the officer authorized to make the same, and hence the case falls within the line of decisions where the defects in the contracts are irregularities only, and as to these the rule is perfectly well established that third parties are not permitted to raise questions between the city and its contractors.' The case of Fell v. Philadelphia, 81 Pa. 58, is a leading illustration of this distinction. Numerous objections were there made to the validity of the contract becausé certain regulations had not been complied with. They were all disallowed but one, as to which the ordinance provided that two weeks notice at least should be given in two daily papers of the application of persons applying for contracts, before any such contract should be made. As this was a jurisdictional requirement and the contract could not exist without it, the contract was held invalid in that case. Woodward, J., delivering the opinion, said as to the other objections, “ 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 municipal officers have been ratified and the work done by the contractors' has been accepted,” citing a number of cases. This distinction was also noted in the ease of Erie City v. Moody, supra. It is not necessary to pursue the subject further. The contract in this case was regularly signed by the mayor, who is the proper officer to sign all contracts unless some other officer is specially designated. It was no concern of the defendant in this case, whether this contract was signed by the mayor or director of public works, and as the contract was ratified and the work was accepted by the city, this defendant could not be heard to impeach it, for an irregularity which is not jurisdictional. We do not consider that any of the assignments of error are sustained, and they are therefore all dismissed. Judgment affirmed.