The opinion of the court was delivered,
by Read, J.This case arises under the provisions of the 12th section of the Act of 13th May 1856, and of the further supple*340ment to the Act incorporating the city of Philadelphia, passed 22d April 1858, and of the 2d section of an Act regarding the Port of Philadelphia, passed 20th May 1864. The first two acts gave the city councils certain authorities relative to the cleansing of the docks on the Delaware and Schuylkill front of the city, and the last act vested these powers in the port wardens. All the powers therefore relating to cleansing the docks given to councils by the Acts of 1856 and 1858, were transferred to and vested in the port wardens, who were to carry them into effect according to the constitution of their own body. The councils could by their fundamental law, act only by ordinance, and the Act of 1864 never did so absurd a thing as force a power to pass ordinances on an executive body, the port wardens. This being the case the objection that the act is unconstitutional falls to the ground.
The first error is answered by. the 4th section of the Act 11th March 1846, Pamph. L. 115 : “ Such claims may in suits thereon be read as evidence of the facts therein set forth-;” and in the claim filed, notice to cleanse the same is averred to have been given agreeably to the Act of Assembly, and the second, fourth and fifth errors are answered by the fact that the port wardens are not required to pass ordinances or to exercise any legislative authority. The claim was properly filed in the name of the- city, the municipal corporation, of whom the port wardens are the agents, and the third, sixth, eighth and ninth errors by the following provisions of the existing laws: “ All liens to collect the expenses of the said work shall have the same force and effect as liens for municipal work in the city of Philadelphia under existing laws, and the claims filed for the same shall be governed by the same rules of evidence as those filed in the city of Philadelphia for the removal of nuisances by the board of health.”
Docks uncleansed were nuisances in the rivers within the immediate jurisdiction of the port wardens. By the 2d section of the Act of 7th April 1830, Pamph. L. 348, it is enacted, that “upon the trial of which (the scire' facias) the fact of the nuisance shall not be inquired into, and the defendant or defendants shall only be permitted to give evidence of payment, or-that unnecessary expenses were incurred by the board in the removal of the nuisanee;” and by the 4th section of the Act of 11th March 1846, it is enacted, “ and no plea alleging non-joinder or mis-joinder of parties, no plea averring want of notice to remove, nuisances, no plea touching the rates or proportions of contribution among parties jointly interested, nor any plea touching the question of ownership shall be allowed in any such action.”
These acts clearly cover all the offers made by the defendant, and exclude the evidence proposed to be given.
Judgment affirmed.