Bladen v. Philadelphia

The opinion of the court was delivered,

by Sharswood, J.

The control of the city councils over all the departments of the municipal government of Philadelphia, in the matter of the disbursements of money, as well for work done and materials furnished, as for the salaries and wages of officers and employees, was finally settled by the judgments of this court in The City v. Flanigen, 11 Wright 21 , and The City v. Johnson, Id. 382. Both those decisions were contrary to and in reversal *466 of my own ruling in the court below; but I am bound in candor to say, that subsequent reflection has satisfied me that I was in error, and the Supreme Court were right. But if I were otherwise, I would be none the less obliged to conform my present judgment to the principles authoritatively established in those cases.

To distinguish this case from them would be to make a distinction where there is no difference. It is said as to The City v. Flanigen, that the receiver of taxes was an officer wholly municipal ; but this a mistake, as he was then charged with the collection of state as well as city taxes. As to The City v. Johnson, it is argued, that the specific salary of the teacher suing was not limited, but the provision of the ordinance was, that a certain amount only should be appropriated for the salaries of teachers, with a direction that the controllers should scale the salaries accordingly — a circumstance which, if it has any weight at all, makes this case stronger than that; for here there was a specific appropriation of a certain sum for the payment of the plaintiff in error. His learned and acute counsel, who could not fail to discover a distinction if any existed, after this faint effort in his printed argument in that direction, fairly abandoned it, and took the only ground which was left to him, that in those cases too much importance had been given to mere directory provisions for the payment of money by the city treasurer. It would not perhaps be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory; but negative words which go to the power or jurisdiction itself have never,'.that I am aware of, been brought within that category. “A clause is directory,” says Taunton, J., “when the provisions contain mere’matter of direction and no moré ; but not so when they are followed by words of positive prohibition:” Pearse v. Morrice, 2 Ad. & El. 96. The words of the 6th section of the Act of April 21st 1858, Pamph. L. 886, are words of positive prohibition. “No debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia, unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.’” The plaintiff was appointed chief clerk of the board of health in November 1858. He accepted the place under this appointment at the salary fixed by them, subject to this statute. This was his contract, on which he now sues. By it, the debt of the city he claims to recover was incurred. He alleges that there was a previous law which empowered the board to fix his salary: Act of January 29th 1818, § 1, *467 Pamph. L. 39; but admitting that the provision to which he refers was then in force, he does not pretend that the other member of the sentence had been complied with; that there had been an appropriation sufficient to pay the same previously made by councils. Had the statute enacted expressly that without such appropriation the contract would be void and no debt incurred, it could not, so far as the Lability of the city is concerned, have been more mandatory or imperative than it is.

Of course, we are not to be understood as holding that the city councils have any power to withhold payment from a state officer whose salary or perquisites are fixed by law, such as the officers of the courts, jurors, or indeed any of the necessary expenses of the administration of justice. The municipality has no more control over such matters in this city, than commissioners have in the several counties of the Commonwealth. They can no more be reduced or denied than can the amounts ascertained in the fee bill when the city has occasion either to claim or defend in the courts, or transact other business in the offices. These claims stand on an entirely different ground.

Judgment affirmed.