#### Philadelphia *v.*Jewell.

A contract for paving at a certain rate per square yard, after being partly performed, became void under the city ordinance of 1872, declaring such contracts void when not completed within a specified time. An ordinance was passed April 24, 1877, fixing the price of paving, for all new paving after the passage of the ordinance, at a less rate per square yard. The ordinance of Dec. 3, 1878, entitled “an ordinance to repeal an'ordinance in relation to contracts for street paving,” repealed an ordinance of Dec. 31, 1862, (the latter ordinance having no relation to the time of the completion of the work) and then expressly ratified and approved all contracts for paving under which work had been done. On a case-stated, in a sci. fa. sur municipal claim, to the use of the contractor, to recover the price fixed by the original contract, the court held that, as the ordinance of 1878 had been construed, in prior decisions, to ratify not only contracts under, the ordinance of 1862, but all contracts for paving which come within the description, such construction, under the rule of stare decisis, should not be disturbed. The court also held that the defendant, the property-holder, could show, under the Act of April 19, 1843, that the original price charged was excessive, and that the facts agreed upon were prima facie evidence, on the case-stated, that the value of the work was the price fixed by the ordinance of 1877. *Held:*

On a motion for re-argument, on the ground that the Act of 1843, giving defendant a right to show th'at the price charged was greater than the value, was repealed by the Act of March 30, 1866, that the motion should be refused: but the court modified their opinion by striking out the portion construing the Act of 1843, and based their decision on the construction that the ordinance of 1878 contained, by implication, the condition as to price prescribed by the ordinance of 1877.

June 3 and 4, 1890.

Motion for re-argument of writ of error No. 219, Jan.T., 1890, reported in 135 Pa. 329.

The following petition for re-argument was filed in the office of the prothonotary in Philadelphia, June 3, 1890, and by him sent by mail the same day to the court sitting at Harrisburg:

“ 1. The learned court, in deciding this case, inadvertently overlooked the fact that the provision in the Act of 1843, giving defendant a right to show that “ the price charged is greater than the value thereof,” was practically repealed by the Act of March 30th, 1866, P. ■ L. 354, which vests in city councils the authority to fix the price of paving, etc.

“ 2. The learned court also inadvertently overlooked the fact that it had been repeatedly decided that where councils have fixed the price for paving and other municipal improvements, the property-holder is bound by the price thus fixed, and cannot show, under the Act of 1843, that “ the price charged is greater than the value thereof:” Lea *v.*City, 80 Pa. 315; Stroud *v.*Phila., 61 Pa. 255; City *v.*Sellers, 6 Phila. 253 ; City *v.*Miller, 2 W. N. C. 302 ; City *v.*Church, 1 W. N. C. 299; Lipps *v.*City, 38 Pa. 503 ; Wray *v.*Pittsburgh, 46 Pa. 365.

“ 3. To allow a property-holder to come into court and show that an assessment regularly made for a municipal improvement was greater than the market value of the work, would subvert the whole doctrine of local taxation and open wide the flood-gates of endless litigation: Lea *v.*City, supra.”

*735
      *Wm. Hopple, Jr.,*and *B. Woodward,*filed the

—The opinion, affirming the judgment in this case, rests, as we understand it, solely upon the Act of April 19,1843. This Act was not mentioned or referred to by either counsel or the court below when the cases were heard in that court, and, in the case that was tried by a jury, no offer or attempt was made to show that the work was not worth as much as had been charged for it, or that the work was defectively or badly done. And as the counsel of the appellee in tlieir paper-book for the first time refer to this Act of 1843-yet, as they did not touch upon this in their oral argument before the court, nor seriously claimed that said Act applied to these cases, the counsel for appellant inadvertantly omitted to call the attention of the court to the decisions now presented as showing that said Act should not be considered as ruling or being applicable to this case.

The provisions of the Act of 1843, were expressly confined to the territory embraced by the incorporated districts existing at the time of its enactment, and nothing has been done since to extend the Act to any other territory: City *v.*Edwards, 78 Pa. 62.

As this Act, then, is not applicable to the whole county of Philadelphia, if the appellee thought there was anything in the Act of benefit to him, he should have had set forth in the “ case-stated ” that the work in question was done in one of these incorporated districts, if such were the fact: City *v.*Edwards, *supra;*Craig *v.*Phila., 89 Pa. 265; Pepper *v.*Phila., 114 Pa. in.

But the provision in the Act of 1843 giving the defendant the right to show that “ the price charged therefor is greater than the value thereof,” was practically repealed by § 1 of the Act of March 30th, 1866, P. L. 354, which provides, that “All Acts or parts of Acts which limit the charges made by said city for the construction of sewers, for paving, and for the laying of water pipe, so far as said limitations are concerned, be and the same are hereby repealed: And hereafter all the said charges and rates shall be fixed from time to time by ordinance of councils.”

Under this Act, councils expressly have the power to fix the price for paving the highways, and where the price is so fixed a property-holder cannot go behind it, unless the work was badly or defectively done, which is not pretended in this case. See the several cases above cited.

What, then, was the price fixed by councils ? The ordinance of June I2th, 1868, fixed the price of rubble pavement at $1.50 per sq. yard. The contract with Peters, of July 2d, 1873, fixed the price at $1.50 per sq. yard, and the ordinance of Dec. 3rd, 1878, in ratifying and approving this contract, fixed the price of the work in question at $1.50 per sq. yard. And it was not until the price had been so fixed that Mr. Peters went on and did the work in question, believing, doubtless, that he would be paid that price for his work.

We think, and respectfully submit, that there is a vast and essential difference between the case of a sub-contractor filing a me*736chanic’s claim, and the case of a municipal assessment for a local improvement. In the former, the statutes simply give a lien, nothing more, while in the latter, not only a lien is given, but the price is fixed by legislative authority. A contractor for municipal work is bound by his contract; he cannot recover more, nor should he, on the other hand, be required to take less than his contract calls for. He is not subject to the fluctuations of the market.

The cases of Reilly *v.*Phila., 6o Pa. 467, and Pepper *v.*Phila., 114 Pa. 96, clearly have no application to the facts of this case. In the former, the court simply held that there was an absence of authority for entering into the contract; and, in the latter,that, where the work is faulty and not up to the required standard, the defendant may show this by way of partial abatement of the claim. In our case there is no pretence that the work was in any way faulty, or did not strictly come up to all the requirements of the law.

In conclusion, we submit that it must be evident that, to permit a property-owner to come into court and contest a municipal assessment for a local improvement, on the ground that the price on assessment is excessive or greater than the market value of the work, would, to use the language of this court in Lea *v.*City, supra, “ lead to untold litigation, and practically defeat the collection of the tax except at the end of a lawsuit. The room for affidavits would be so large that few claims would be uncontested.” And, as was said in Philips *v.*Scott, 2 Watts, 320, “the experience of every day satisfies that every rule of law that affords the slightest encouragement to litigation is founded in error.”

*R. D, Maxwell, Joseph Ball*and *Victor Guillou,*for appellees,

filed no answer to this application.

The court refused a re-argument, as in the decree below, but subsequently modified the opinion of the court by the addition, inter alia, of the following, as will appear by a comparison of the opinion of the court as printed in 135 Pa. 337, and 26 W. N. C. 150, and 292, or 19 Atl. 947:

“The Act of March 30, 1866, P. L. 354, which authorizes the counsels to fix the rate, requires them to do so from time to time, and. this means by general ordinance. At the time the contract was revived and the work done, the city had, by general ordinance, fixed the price of such paving at $1.10 a yard. In the face of that ordinance, the city could not, by a new contract, have imposed any higher rate on the appellees for work to be done thereafter, and the spirit, if not the letter, of the Act of 1843 equally prevents the city from making, in effect, such a new contract, by the revival of an old and void one, to the detriment of those interests of the property-holder meant to be protected. The Act of 1843 allowed the property-owner to show' in defense that the price charged for the work is “greater than the value thereof;” but this having been found to be inconvenient in practice, subsequent Acts changed the *737system so far as to permit the city to fix the charge which should not be questioned: See Lea *v.*Phila., 80 Phila. 315. The city now collects from the property-owner, not the value of the work, but its cost as fixed by ordinance; and this mode of ascertaining and fixing the cost is sustained on the ground of the public necessity and convenience, inherent in all rational taxation, that there should be a settled, ascertained, uniform and practicable method of computing the amount due by the tax-payer. The present case-stated shows that the contractor’s rights under his contract had been forfeited; that, at the time of the revival by councils, the legal cost of such paving was fixed by ordinance at $1.10; and we are of opinion that such legal cost was all that the appellees could be compelled to pay, either under a new contract or an old one revived after forfeiture.

“ Nor is it reasonable to suppose that the council intended to sanction any higher charge. The appellant’s contract was not revived by name or specifically in any way. It got its new life by coming within the general terms of the ordinance of December, 1878. When that ordinance was passed, councils knew that the legal charge had been fixed by the ordinance of April, 1877, and may well have supposed that all subsequent work done under revived contracts, as well as under new ones, would be done under the terms of that ordinance. Their right to have made an express provision to that effect is beyond question, and it is a reasonable construction to imply that condition in the ordinance as actually passed.

“The judgment of the court below, having been entered for an amount based on the price under the ordinance of 1877, was correct.”

The above extract from the opinion of the court was substituted in place of the following, as originally filed:

“ One of the defences expressly reserved to the owner [by the Act of 1843] is that the price charged therefor is greater than the value thereof.” [The city had the right to revive and ratify the contract with Peters without regard to the appellee’s consent (City *v.*Hays, 93 Pa. 72 ),] but neither by its original contract nor by the revival could it take away the appellee’s right to prove that the price charged was excessive.

“ If, therefore, this case had gone to a jury in the ordinary way, the defendant would have been entitled to show that a dollar and fifty cents per yard was an excessive price. The question is now before us on a case-stated in which no inference is to be drawn from facts not expressly set out. But it appears in the agreed facts that the price in the contract, one dollar and fifty cents, was the price fixed by general ordinance at the date of the contract, in 1873. It also appears that, while the contract was in abeyance, and before the work now sued for was done, another general ordinance fixed the regular price at one dollar and ten cents. We are of opinion that *738this is sufficient evidence, at least prima facie, that the latter was the value of the work at the time the contract was revived and at the time the work was done, and the case must be treated as if a jury-had so found. The judgment of the court below having been entered for an amount based on this price was therefore correct.”

June 4, 1890.

Per Curiam,

Re-argument refused.