[Albracht v. City of Erie.]

City. And to prevent the execution and carrying out of said contract, the plaintiffs as tax-payers, and also being engaged in the plumbing and steam-fitting business, filed their bill in this case. They also filed injunction, affidavits and bond, on which after hearing, we granted a preliminary injunction and later continued such injunction until further order.

5. Plaintiffs' claim for the relief prayed for is founded upon an Act entitled "An Act regulating the letting of certain contracts for the erection, construction, and alteration of public buildings," approved the 1st day of May, 1913, which reads as follows:

"Section 1. Be it enacted, etc., That hereafter in the preparation of specifications for the erection, construction, and alteration of any public building, when the entire cost of such work shall exceed one thousand dollars, it shall be the duty of the architect, engineer, or other person preparing such specifications, to prepare separate specifications for the plumbing, heating, ventilating and electrical work; and it shall be the duty of the person or persons authorized to enter into contracts for the erection, construction, or alteration of such public buildings to receive separate bids upon each of the said branches of work, and to award the contract for the same to the lowest responsible bidder for each of said branches. "Section 2. All acts or parts of acts inconsistent herewith are hereby repealed."

6.

Later, on defendants' motion, we granted the rule to show cause why such injunction should not be dissolved, on which testimony was afterwards taken.

7. The bids were received in open session and the contract awarded in the usual manner and there is nothing to indicate any bad faith on behalf of the City or its officers. And the LiebelBinney Construction Company appear to have submitted its bid in good faith and in the usual course of business.

8. The defendants contend that the plaintiffs or any others who so wished, might have submitted separate bids for the plumbing, etc., had they desired to do so. And further contend that the said above recited Act, so far as refers to cities of the third class, was repealed by the said later Act of the same Session for the government of cities of the third class above referred to. Section 5, Article 4, of which later Act is in part as follows:

"All stationery, paper and fuel used in the council and in other departments of the city government, and all work and materials, required by the city. shall be furnished, and the printing, advertising, and all other kinds of work to be done for the city, except ordinary repairs of highways and sewers and other public improvements, shall be performed, under such regulations as shall be

[Albracht v. City of Erie]

prescribed by ordinance; and all sales of personal property owned by the city shall be to the highest bidder, under such regulations as shall be prescribed by ordinance or resolution."

After argument and upon due consideration, we are of the opinion that as matter of law, the plaintiffs, being tax-payers, have standing to file the bill in this case. And further, that the later Act above referred to does not repeal the former, and that the rule to dissolve the injunction should be discharged.

The two statutes being passed at the same session, there is a strong presumption against an implied repeal.

So far as we can see, they are not irreconcilable, but can both stand together. There is nothing in the later Act, which says that in case of public buildings, the plumbing, heating, ventilating and electrical work shall not be done under separate contracts. In fact, both Acts provide that contracts for such work shall be awarded to the lowest responsible bidder, and we see nothing in the later Act to indicate any intention to repeal the former Act requiring in the case of a public building, contracts for plumbing, etc., to be separately let; and there is just as much reason for so requiring in cities of the third class as elsewhere. Construing both statutes together, a city of the third class is authorized to give contracts for the doing of municipal work to the lowest responsible bidder under such regulations as shall be prescribed by ordinance, but in case of work upon public buildings where the amount exceeds $1,000, the contracts for plumbing, heating, ventilating and electrical work shall be done under separate contracts, each let to the lowest responsible bidder.

The City, in our opinion, was not justified in awarding the contracts as a whole, because of the failure of the parties to submit separate bids for the plumbing, etc., because the City had made no effort to get separate bids for such plumbing, etc. And further, because the statute not only requires separate bids, but requires that the contract be awarded for the same to the lowest responsible bidder for each of said branches of the work. It would seem that under said Act of Assembly, the bids for work upon public buildings can only be submitted separately as the statute provides, and that contracts for each branch of the work should be separately let, even though in the opinion of the city authorities, more advantageous bids for such work might be obtained by receiving bids therefor as a whole instead of separately.

[Woodruff v. Odd Fellows Hall Assn.]

WOODRUFF, ADMINISTRATOR, VS. ODD FELLOWS' HALL ASSOCIATION, ET AL.

Award of Arbitrators-Conclusiveness-Insufficient Affidavit to open judgment.

The written submission to arbitrators must be construed by its terms, and not by what it is alleged a party intended to submit. An affidavit of defense which does not deny entering into the submission or the award of the arbitrators, and alleges neither fraud or mistake, but places a construction upon the submission, is not sufficient to prevent judgment.

Kule to Strike off Judgment, No. 65, February Term, 1914, C. P. Erie County.

Gunnison, Fish, Gifford & Chapin, T. S. Woodruff, for Plaintiff.
Brooks & English, for Defendant.

WALLING, P. J., January 12th, 1915.

This is an action upon an award of arbitrators.

Plaintiff's intestate, originally brought suit against defendants before a justice of the peace; before whom all parties appeared and were represented by counsel, and voluntarily by written submission, referred all matters at variance to arbitrators. The arbitrators heard the evidence of both sides and made written award in favor of plaintiff for a certain sum. No attempt was made to revoke the submission or to set aside the award. And thereon this suit was brought, plaintiff's statement setting out both the submission and award. Defendants, after due notice, failed to file an affidavit of defense and for want thereof, judgment was regularly entered against defendants.

Thereafter a motion was made to strike off such judgment and subsequently an affidavit of defense was filed; and it was agreed at the argument that judgment should be opened if such affidavit made out a prime facie defense.

In our opinion, such affidavit is insufficient.

It does not deny the entering into the submission or the award of the arbitrators, and alleges neither fraud nor mistakes. It places a construction upon such submission. The submission states inter alia "that the whole matter be referred to arbitrators except Odd Fellows' Association does not admit their legal liability to Mrs. Margaret E. Randall."

That does not oust the jurisdiction of the arbitrators to pass upon the question of such legal liability. Perhaps had such liability been admitted, it might have saved the necessity of the law suit. Had such submission said that such association does not submit to the arbitrators the question of its legal liability to plaintiff, a different matter would be presented.

(Thomas vs. Leslie, County Controller.

The written submission must be construed by its terms, and not by what it is alleged the defendant intended to submit.

The affidavit contains several averments in the nature of legal conclusions and matters going to the merits of the original controversy, but nothing in our opinion constituting a defense to this action on the award. It is unfortunate, if said submission was not as intended, but we see no way in which that can be remedied at this late day.

As to the conclusions of awards, see McCune vs. Lytle, 197 Pa., 404; Vankirk vs. McKee, 9 Pa., 100; March vs. Lukens, 214 Pa., 206; Wilson vs. Young, 9 Pa., 101; Williams vs. Danziger, 91 Pa., 232; Bingham's Trustees vs. Guthrie, 19 Pa., 418; Thomas vs. Heger, 174 Pa., 345, and Evars vs. Kamphaus, 59 Pa., 379.

The parties agreed to abide by the decision of the arbitrators and we see no way to relieve them therefrom.

And now, January 12th, 1915, the rule to strike off the judgment in above case is discharged; and we hereby refuse to open said judgment for the reason that the affidavit of defense is not sufficient to prevent judgment.

THOMAS VS. LESLIE, COUNTY CONTROLLER.

County Solicitor-Right of Commissioners to Raise Salary of Solicitor During Term-Enforcement by Mandamus.

1. The office of County Solicitor is not a public office within the meaning of Article 3, Section 13, of the Constitution, which provides: "No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment."

2. County Commissioners have power to increase a County Solicitor's salary during the term for which he was elected.

3. The certifying of County Solicitor's bills and countersigning the warrants for the payment thereof are clearly ministerial duties and under all the authorities a performance of such duties by a controller can be enforced by a writ of mandamus.

Demurrer to defendant's answer to writ of mandamus.

C. P. Erie County, No. 48, November Term, 1914.

C. P. Hewes, Esq., for Plaintiff; Samuel B. Bayle, Esq., for Defendant.

WALLING, P. J., November 30, 1914.

On the first Monday in January, 1912, the Board of Commissioners of Erie County, by proper resolution, elected plaintiff solicitor of said county for a period of four years and fixed his salary

(Thomas vs. Leslie, County Controller.

at that time at the sum of one thousand ($1,000.00) dollars per year.

On the first Monday in January, 1914, the said Board of Commissioners by resolution duly passed, fixed plaintiff's salary thereafter as such solicitor at the sum of twelve hundred ($1,200.00) dollars per year.

According to the custom in the County Commissioner's office, plaintiff's salary is payable in monthly installments.

Defendant, as the duly elected and qualified Controller of said county, certified the bills of the plaintiff and countersigned his warrants for various sums amounting to his salary in full at the rate of one hundred ($100.00) dollars per month, until the first of June, 1914, since which time defendant has neglected and refused to certify to plaintiff's said bills or to countersign warrants therefor, although the County Commissioners have duly prepared and executed warrants for the payment thereof; and this writ of mandamus was brought to compel the defendant to certify such bills and countersign such warrants for the plaintiff's salary for the months of June, July and August, 1914.

On the presentation of plaintiff's petition, we issued a writ of mandamus in the alternative form, to which defendant in due time, made return and answer, to which answer the plaintiff has filed a demurrer.

We have carefully examined said answer and believe that the demurrer thereto is well taken. The answer does not deny the passing of the resolution fixing plaintiff's salary at twelve hundred ($1,200.00) dollars per annum, but does deny that said Board of Commissioners passed and recorded a proper and legal resolution for such purpose. Whether such resolution is legal and proper is a question of law. The answer also denies the right of the said Board of County Commissioners to increase plaintiff's salary during the four year term for which he was elected in 1912, and sets up some other matters in answer to the allegations of the petition.

Substantially the only question raised is as to the right of the County Commissioners to increase plaintiff's salary as County Solicitor during the term for which he was elected. We are clearly of the opinion that the resolution passed January 5th, 1914, increasing plaintiff's salary was within the power of the Board of County Commissioners.

True, Section 13, Article 3, of the Constitution of Pennsylvania provides: "No law.shall extend the term of any public officer, . or increase or diminish his salary or emoluments, after his election or appointment"--but in our opinion, the office of county solicitor is not a public office within the meaning of said provision of the Constitution. And besides the resolution passed by the Board