O'Rourke v. Philadelphia

Mb. Chief Justice Mitchell,

dissenting:

The plaintiff’s is admittedly a just claim for work which was done by him but which through no fault of his, was not included in his written contract. If the defendant were a private party it is conceded that there would be no defense, but defense is made here altogether on technicalities. If the city is really without power to pay its honest debts the result must be acquiesced in, however discreditable. If the act of 1885 alone is looked at there is basis for argument to that effect. The act of 1885, however, is intended to make provision for ordinary contracts in the current business of the city, and these it requires to be executed in the prescribed forms. But the Act of May 28, 1874, P. L. 230, in section 5, provides for this very kind of case by authorizing ordinances to pay contractors extra compensation after the services have been rendered or the contracts made, provided such ordinances are passed by a twothii’ds vote and approved by the mayor. Councils desiring to be honest passed an ordinance making an appropriation for plaintiff’s claim. It was passed by the requisite two-thirds vote and was approved by the mayor.

Two objections are made to the application of this ordinance, first, that it does not name the plaintiff. This is true, but it specifically appropriates the exact sum due him “ to pay for sewers and drains built on the line of Grant street,” etc., describing the work in terms that include the plaintiff and exclude all others. There is not the slightest room for doubt that the plaintiff was intended, and the referee so found as a fact, which has not been excepted to.

The second objection is that in December, 1899, councils by ordinances transferred the sum previously appropriated for this work, to other uses. This so far as shown by the evidence was done in the ordinary course of legislation at the end of the year. The appropriations for the multifold requirements of the city being made in advance upon estimates, some naturally fall short while others leave a surplus. At the end of the year it is customary to transfer the surplus balances to cover the deficits and thus bring the totals of appropriations and expenditures into harmony. A transfer of this kind is not a repeal of the appropriation though it does remove the money from its place on the department books, so that it is no longer available *85for payment in the ordinary way by warrant drawn on the treasurer. But the promise to pay implied in the appropriation still remains, and is the sufficient foundation for an action of assumpsit. Both objections to the ordinance for paying appellant are technicalities of the narrowest kind, are unsound in principle and have no claim to be favored. Courts are not required to be astute to enable even cities to evade payment of their honest debts. I would reverse this judgment and enter judgment for the appellant, on the award of the referee.