ALBRACHT ET AL. VS. CITY OF ERIE, ET AL. Cities Third Class-Act of 1913, P. L. 155-Act of 1913, P. L. 569-Bids upon public buildings-Separate bids. The bids for work upon public buildings can only be submitted separately as the statute provides and contracts for each branch of the work should be separately let. Two statutes being passed at the same session, there is a strong presumption against an implied repeal. Rule to dissolve preliminary, injunction. C. P. Erie Co., in Equity, No. 5, September Term, 1914. A. W. Mitchell and P. V. Gifford for Plaintiffs. C. P. Hewes for Liebel-Binney Construction Co. Chas H. English for Defendants. WALLING, P. J., Aug. 10, 1914-The bill in this case was filed by taxpayers to restrain the defendant City and its officers from executing and carrying out a certain contract with the LiebelBinney Construction Company for the making of certain alterations and additions to the City Hall. The case was heard upon the bill and testimony taken on the rule to dissolve the injunction. We find material facts as follows: 1. The Defendant City of Erie is a city of the third class, and now acting under the Act of June 27th, 1913, P. L. 569, known as the Clark Bill, and the plaintiff are resident taxpayers of said city. 2. Erie has a City Hall, and in the spring and early summer of 1914, the city, through the proper municipal authorities, proceeded to make certain alterations and repairs to the third floor of said City Hall, costing over $20,000.00. 3. For which work, the City had the usual plans and specifications prepared and bound under one cover, but including separate specifications for the several items including the plumbing, heating, ventilating and electrical work. The usual advertisement was made requesting the submission of bids for the making of such alterations and repairs in accordance with the plans and specifications. 4. No separate bids for said plumbing, heating, ventilating and electrical work were asked for or received, and there was some talk by an employee in charge of the plans at the City Hall indicating that only bids for the entire work would be received, but no member of Council so stated. However, four bids, each for the entire work were submitted. and the Liebel-Binney Construction Companv. a reliable contracting firm of this city, having submitted a bid of $21,776.00, which was the lowest and best of the said four bids, was awarded the contract. which was duly prepared and which the Council directed the Mayor to execute on behalf of the [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 detense 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. 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. 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 |