The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-03-15

City Solicitor Vosburg. in an opinion
yesterday given to City Controller
Howell, decides that the latter cannot
legally certify the contract between
the city and the Scranton Electric
Light and Heat company until such
time as an appropriation has been
made. This sustains one of the con-
troller's reasons for refusing to sign
the contract.
The first objection raised by the con-
trolier, that the city cannot award
O contract to the highest bidder, Is
shortly dismissed by Mr.. Vosvurg. He
refuses to give all expression OK opin-
ion on the second objection. namely.
that a contract cannot be certified for
q period Of ten years.
1t will now only be necessary to
wait until the appropriation ordinance
is passed, as this contains the neces-
sary appropriation for the lights. Tho
following is the full text Of Mr.. vos-
burg's opinion:
Scranton. Pa, March IA. 1900.
Esdras Howell. Esq, City Controller.
Dear Sir: Your inquiry as to whether
you have a legal right to certify the
contract between the city of Scranton
and the Scranton Electric Light and
Heat company. awarded by ordinance
(file Of select council No. Is, 1897 APP
proved by the mayor March 13, 1900, has
received my careful consideration.
You suggest three possible objections
to such action on your part. and l con-
slider them separately.
THE OBJECTIONS.
First, whether or not article 4, section
6, Of the act Of May q, 1899, providing
for the letting of contracts to the lowest
| bidder in certain: case. controls this case!
1t is we'll settled that municipality
has a certain amount Of discretion In
| accepting bids. and is not bound In every
| case, to accept the lowest bid.
Company VS.. Wagner, 1S9 Pa. 623.
McCullen's Appeal, Mora. 596.
Paving CO. VS.. Phila., 164 Pa. AZ.
Second-Can a contract OF this kind be
| legally executed for period of ter
years?
An equity case involving this Question
| Is now pending In our courts, and Is mol
yet decided; but upon mandamus pro
ceeding against the controller of this
city, a peremptory writ was awarded
directing the controller to certify a con-
| tract Of like character to the one We
are now considering. In view of tni'
ruling of our court, cannot advise yol
to refuse to certify this contract. fol
| the reason that 1t covers a period Of ter
years; but I do not express any opin.or
as to the validity Of such contract.
| Third-Can the contract be certified
| at this time. there being no appropriation
| in the ordinance awarding the contract
and the general appropriation ordinance
In which an appropriation Is made fo
| the payment of the lighting provided To-
| in this contract not having yet beer
passed?
1t Is said in section 5. of article ., O.
the act Of 1889. that ut shall be the dut!
of the controller TO certify contracts
for the payment Of which sufficient ap
preparation has been made"
And in commonwealth VS.. George, IA
Pa, page 466. the court said. "There ar
but two questions involved in this case:
QUESTIONS INVOLVED.
First-Whether sufficient appropria
ton had been made for this contract?
Second-Whether the duty of the con
troller under the above section (sectiol
5. article Q. act 1881 Is discretionary o
merely ministerial?'
In the case last cited, the court foun
that an appropriation had been made
and that the duty of the controller t
certify the contract was a clerical o
ministerial one. which could be enforce
by mandamus.
In Dechert VS.. commonwealth, 1l3 Pa
page 229 Mr.. Justice Clark says: "It wa
his (the controller's) duty in any case
before countersigning the warrant. t
know that the appropriation necessar
for the department had been made, ETC.
1t seems manifest that the city con
troller must be satisfied that an appro
priation has been made for the paymen
Of the contract which he Is asked t
certify. before doing 80; and as such ap
preparation has not yet been made in tn
case now under consideration. am q
the opinion that he cannot legally certif
this contract until such an appropria
ton has been made. Very truly yours,