The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-02-04
.SANDERSON'S RULING
WAS SET ASIDE
Action Was Taken at Last Nights
Meeting Of Select Council.
THE CITY SOLICITORS OPINION
IL was to the Eject that Awarding g
OF the Contract for Building the
sewer TO Dunn Brothers Did Not
Bind the City--Mr. sanderson Was
Not Present and Mr.. Thomas Was
Called upon 10 Preside.

ing to Dunn Bros. the contract TOT
building the South Side sewer, was set
aside in select council last night.
This action was in pursuance OF
communication from City Solicitor NC
Ginley, which contained his opinion
that President Sanderson was in error
as to the effect of the restitution ana
In not permitting it's passage. Ihe city
solicitor held, further, that the reso-
luton did not involve an increase IN
the city debt nor would II make the
contract binding until money had beeh
appropriated therefor and the city con-
troller had certified to such appropria-
tion on the contract.
City Solicitor. McGinley's letter was
as follows
Scranton Pa, Feb. g. 1898.
To the Honorable the Members Oh the
Select Council Of the city of Scranton.
Gentlemen: In the matter of resolu-
ton award the contract for the con-
struction of the Seventeenth district
main sewer to Dunn Bros. referred TO
the sewers and drains committee |
would respectfully submit that in my
opinion the president was in error re-
garding the effect OF the resolution ana
in not entertaining the motion Tor ITS
passage The measure vas properly be-
subject for tho consideration oil inc
body.
DID NOT BIND CITY.
The passage of the resolution award
ing the contract would not bind the city
10 the payment Of any money nor Woult
il hc an increase of the debt; sucI ila-
biljtv and increas" would occur only
when the contract is actually executed
in the manner required by law. 1t is
I
it's choice of contractors and to award
the contract to such choice: the award,
however would be subject TO the con-
stitutCnal provision making an appro-
priatinn a prerequisite condition before
contract could be legally executed.
The municipal act of 1889, article 3.
section 5, provides as follows: EVERY
contract involving the appropriation or
money shall designate the item of APP
preparation upon which it is founded
and the estimated amouni of the eN-
penditure Hereunder shall he charged
against such item. and so certified by
| the controller on the contract before II
| shall take effect as contract and the
| payments REQUIRED by such contract shall
| be made from the fund appropriated
| therefor"
This section of the act has been de-
| cided by the Supreme court in the case
| of the city of Erie vs.. Moody, l,d Pa. iIS.
| to be- mandatory and that even If Coun-
| ellis award the contract ana il has been
! actually executed by the proper Officers,
yet, If there il no appropriation and #
| the contract has not been certified by
| the controller in accordance with the
above act, it has no legal or binding ef-
! feet as a contract and attaches no liabil-
| ity to the city.
| 1t seems. there fore entirely Proper
for the president to entertain the motion
| 10 award the contract ana for council 10
| act its own pleasure in passing the rcSo-
! luton AS such action neither creates a
| liability or increases the municipal debt.
If council passes the resolution awarding
| the contract to Dunn Bros, a legal
| agreement cannot be entered into be-
| tween the city and the contractors for
| the construction Of the work unta such
time as money is appropriated therefor
| and the controller certihes 10 such APP
propria ton on the contract itself.
Yours Very Respectfully,
NJ. A. Mckinley, City solicitor,
MIR. SANDERSON ABSENT.
| President Sanderson was not present
at lest nights session Councilman
William i. Thomas, of the Fourth
| ward. was unanimously chosen presi-
dent pro ten.
When the fourth order of business
was reaCh ned. rCnurts and communiCa-
| tions from the mayor and heads of de-
raltments, Mr.. Mani offered mo-
| lion that the cOHtluv, go2ulUtiuu be
taken from the comn.itt,y &HC l'Hd In
connection with the opinion -. ,',.' City
| solicitor. The motion prevail, =.
After the reading Mr. Roche " - Il
a motion that the communication lac I~-
| coived and filed and the resolution
| adopted. Mr.. Chittenden announced
that he was opposed to the resolution
not because he was opposed to the inn
! proyement but because the method
proposed was entirely illegal. Every
member of councils. he said, knew that
the contract could not be executed and
that the controller would be personally
| liable if he countersiGred Il.
| Mr.. Roche warmly disagreed with
| the foregoing view. lie said Mr.. Chit
tenden attempted to cloud the real is
sue and could not dispute the fact
that the resolution did not involve OF
suggest any illegality. He remarked
| that Mr.. Chittenden "as he ALWAYS
does" was setting his opinion against
| that of the city solicitor, an official
whose duty it was to advise councils
| on legal points.
It's cowardly and contemplate, just
the same, to throw the responsibility
on the city controller-and YOU know
| it," responded Mr.. Chittenden.
The gentleman shifts his argument
as he does every time he takes his
| feet" was Mr.. Rochcs retort.
Then occurred the adoption. by vote
of IA to 5. of the resolution which pass
ed common council three weeks ago
The members voted as follows:
Ayes Ross, Finn, Kearney. Williams
] Clarke. Roche, Durr, Robinson, Maney
Fellows, Schroeder, Burns, Frable and
| Coync.
Nays--Chittenden, Wagner, McCann
McAndrew, Thomas.
ASPHALT EXCLUDED.
Mr.. Chittenden, chairman of the
streets and bridges committee, report.
ed favorably the common council or,
dinance, granting to Dunn STREE
| Sprinkling company the exclusive right
to sprinkle the city streets, but will
an amendment that asphalt pavement.
were to be excluded, Mr. Clarke of
fered a minority report approving the
original ordinance.
When the ordinance was called VI
for first reading Mr., Clarke moved t
| indefinitely postpone action on tht
amendment, which was vigorously
championed by Mr., Chittenden, Mr.
| Durr and Mr.. Wagner. The former
insisted that the mixture of water ant
dust would wear the surface of the
| asphalt and shorten its life at leas
| 10 per cent, while the others contend
ed that the sweeping franchise provid
ed by the ordinance would result in {