Ruppert v. Mayor of Baltimore

Bartol, J., delivered the opinion of the majority of the Court: The decision of this case depends upon the' true, construction of Ordinances 1850, No, 40, and 1355, No. 11. The former relates to ordinary wells and pumps, and the latter to Artesian wells. They are to be construed together; the provisions of Ordinance No. 40, of 1850, being expressly made “applicableto the construction of Artesian wells as fully as to ordinary wells and pumps.” This ordinance, (1850, No. 40,) after prescribing the preliminary steps to be taken to authorize the City Commissioner to contract for having a well or pump made, directs that when it is completed, “ he shall apportion the expense on all the assessable property that, in his judgment,, is benefited by the erection of said pump or well;” and then goes on to provide for the collection of the amount so assessed, and for the payment of the contractors during the work. No provision is made- in this ordinance for the case of a failure to obtain water fit for useprobably such a contingency was considered too remote to be provided against; if ¹⁹³ it should happen, however, while it is very clear no assessment could he made hy the commissioner under the ordinance, because in such case no property would he benefited thereby, we see no reason why the city would not he responsible to the contractor for the work done, unless there should be something in the terms of the contract to exempt it from liability.

The samo principle would apply where the contract is for an Artesian well, if it. were not for the terms of the Ordinance of 1855, No. 11, by which the case of a failure is expressly provided for, in these words: “The petitioners to he responsible for all expenses that may occur in sinking said Artesian wells, if a failure should take place in the attempt to procure water.” Upon the true construction of this clause, the whole case turns; here there was a failure to procure water, and the work was abandoned. The appellants contend that the city is liable to them for' the work done, and that the responsibility fixed Upon the petitioners is to the city. If so, in what manner is the city to enforce that responsibility? Not, certainly, hy an assessment upon their property, to be made by the Commissioner ; he has no authority to make such assessment, except for benefits resulting from the completion of the well; besides, by the terms of the ordinance, the responsibility of the petitioners is a personal responsibility, not one imposed upon their property, to be enforced by assessment, and collected as a tax; there is no power to make such assessment under the ordinance.

If, then, the city be liable to the contractors for the work, the effect would be to compel the city first to pay the expenses, and then to collect the money by a suit against the petitioners. This, in our opinion, is not the meaning of the ordinance. When it declares that the petitioners shall be responsible, this is equivalent to saying that the city shall not be responsible.' In passing it, the Mayor and City Council seemed to have considered that, unlike sinking an ordinary well, the attempt to construct an Artesian well ¹⁹⁴ was an enterprise attended .with great risk and uncertainty;, this risk they were nnwilling to assume, and put it upon the petitioners, the persons at whose instance the work is undertaken, and, in case of failure, make them responsible for alh expenses that may occur. When the well is completed, that is, when success has been achieved, the expense is to be apportioned and assessed by the City Commissioner on the property benefited,, and collected as a tax thereon; but if a failure take place in the attempt to procure water, the petitioners are responsible, not td the city, but directly to the contractors.

They sign the petition with the knowledge of the risk and responsibility so cast upon them; the privity between them and the contractors ■ is created by the words of the ordinance, for every contract made by the City Commissioner under the Ordinance of 1855, must be construed as if this clause were inserted in it. It follows, from these views, .that in our opinion there was no error in the ruling of the Superior Court upon the prayers, and that the judgment ought to be affirmed. It is unnecessary to express any opinion upon the construction of the contract sued on; assuming that it was fully performed on the part of the appellants, without meaning, however, so to decide, still, according to our construction of the ordinances, this action could not be maintained; and for the same reason it is immaterial to decide the second bill of exceptions; even if there was error in admitting the evidence objected to, it would not be ground for reversal. Goldsborough and Weisel, J., dissented, and filed the following opinion", delivered by Weisel, J;: We are constrained to differ from our brothers, a majority of the Court, who have pronounced the judgment in this cause.

It seems to us proper that the contract sued on should he examined., in order to ascertain whether its terms were complied with by the appellants. For if all that was re ¹⁹⁵ quired of them to be done, was not performed, they had no right of action against the Mayor and City Council of Baltimore, or against the signers of the petition, according to the construction of the ordinances arrived at by a majority of the Court. The contract is contained in the' terms of proposal by which the work of sinking the Artesian well was bid for by the appellants, and accepted on the part of the city. It was to sink the well “for the sum of $4.50 per foot, through sand, day or gravel, and finish the same according to city requirements, and keep the same in repair for one year.” As the parties stipulated for a certain sum per foot, through sand, clay or gravel, it cannot fairly be presumed that if hard rock were to be encountered, the appellants were to persevere in penetrating it, and continuing tho operation until water should be obtained, or the work be pronounced fruitless in the effort.

We should give to tho contract a reasonable construction, looking to the nature and character of thowork,.and the intention of the parties; and we think that the stipulation in this case was to boro for water through sand, clay or gravel; and in case in the course of such boring water were obtained to answer the public purpose contemplated by the ordinance, then they were to finish the well in such way “as the city should require, or had required, and to keep the same in repair for one year.” When, therefore, the contractors reached hard rock, they were not required tó go further, but that event determined the fact of failure in the attempt to procure water. We turn now to the ordinances of the city of Baltimore, under which this contract was made, and is sought to be enforced. They are the Ordinances of 1850, No. 40, and 1855, No. 11; the latter being a supplement to the former. That of 1850, relates to the sinking of ordinary wells and erecting pumps.

The supplement makes the provisions of the former ordinance applicable to the construction of Artesian ¹⁹⁶ wells as fully as to ordinary wells and pumps, concluding, however, with $ clause or provision which creates the principal difficulty in ascertaining the meaning and intention of the law-giver as applicable to this controversy. Reading the main ordinance and its supplement together, as applicable to the construction of Artesian wells in the city of Baltimore, we find these provisions, viz; “ That whenever at least sixteen signers, owners of property in the immediate neighborhood, and interested, desire an Artesian well to be sunk in their neighborhood, shall make application to, the City Commissioner, in writing, describing the place where the well is required, the Commissioner, if in Ms judgment the same is required for the public good,- shall forthwith cause the work to be done by contract to the lowest responsible bidder, after a certain notice, and when completed, shall apportion the expense on all the assessable property that, in his judgment, is benefited by the construction of said well, and shall make or cause to be made a correct list of the persons who' are liable to pay the said apportionment, and the amount*to.be paid by each person, provided that (in the case of ordinary wells) he shall not assess any person having a private pump in good order, more than half the cost for which said person would otherwise have been liable, He is then directed to deliver to the City Collector a duplicate of said list, with directions for collecting the same,° and which the Collector shall collect by distress or otherwise, giving thirty days’ notice previous to any. distress, and pay over the amount to the Register of the city.’’ Sec, 1, No, 40, of 1850, and Nor 11, 1855, 1st clause, The 2nd and 3rd sections of the Ordinance of 1850 then provide: “That whenever the work is completed, and