Lead Opinion

Chief Justice Mercur.

delivered the opinion of the court October 5th, 1885.

This bill was filed by citizens and tax-payers of the city of Pittsburgh to enjoin against the performance of a contract, entered into between a sub-committee of the finance committee of the councils of said city of the one part, and the appellants of the other part, bearing date the 14th May, 1881. The former agreed thereby to sell to the latter certain bonds to be issued, to the amount of $6,000,000.

The learned judge enjoined the city against delivering the bonds to the appellants under the terms of said agreement. The validity of this decree depends on the proper construction of the Acts of Assembly authorizing the making and-negotiating of the bonds.

A reference to the Acts, and a brief statement of some of the important facts, are necessary to a correct understanding of the case.

The Act of 9th May, 1879, authorizes, inter alia, the councils of any city of the second class, of which Pittsburgh is one, by ordinance to make, execute and negotiate its bonds, to an amount not exceeding six millions of dollars, the • proceeds thereof to be used in paying or retiring bonds previously issued by the city for the purpose of improving the streets and avenues thereof, and also Temporary Loan Bonds issued to meet the interest on said Street Bonds, and for no other purpose whatever. The bonds to bear a rate of interest not exceeding six per centum per annum, and be payable thirty years from the date thereof, and be exempt from all taxation for city and county purposes, and be known as “ Improvement Bonds.” The third section of the Act declares “ the}' shall be sold at not less than par with accrued interest; ¡but the said councils may allow a reasonable compensation for the sale or negotiation of the said bonds.”

. Supplementary Acts of the 11th of March, 1881, and 15th April, 1881, respectively, were passed. As however they do not profess to change those portions of the Act of 1879, which in our opinion control the decision in this case, we refrain from passing on their validity.

On the 12th January, 1880, the city of Pittsburgh passed’ an ordinance authorizing an issue of bonds, substantially in the words of .the Act of 1879, and declared they should not be sold at less than par and accrued interest; but provided that the finance committee, or sub-committee thereof, might *196allow a reasonable compensation for the negotiation, sale or exchange thereof.

On the 3d of April following the sub-committee entered into an arrangement with the appellants, Whelen and McCandless, whereby, in consideration of services to be performed, by the latter in the negotiation, sale or exchange of said loan, in the funding of the street and temporary loan indebtedness of said city, they were to be allowed, first, for the sale or exchange of new six per cent, thirty years loan free from taxation, a commission of one per cent.; second, for the sale or exchange of new five per cent, thirty years loan free free from taxation, an additional compensation of one per cent. It was, however, agreed that the six per cent, loan should not be placed unless it was found impracticable to place a new five per cent, loan within ninety days of the maturity of the bonds to be funded, and in that event due notice in writing should be given to the sub-committee; and in case the appellants failed to provide for the payment of the maturing loans by the sale or exchange of said improvement loan, as therein provided for, the contract should cease and determine.

This contract having failed to effect the desired object, a second agreement was entered into between the same parties, on the 23d day of March, 1881. After reciting the Act of 11th of March, 1881, and the city ordinance passed to give effect thereto, both of which had been procured in pursuance of agreement between the parties, it proceeded to declare that the new five per cent, bonds should be made payable in thirty years, and be issued to the appellants in exchange for “ all Temporary Loan Bonds ” presented by.them, at par and accrued. interest; and it was therein further stipulated that all bonds purchased by the appellants under the provisions of the original and this supplementary contract should be furnished to them at par and accrued interest. This contract like the former one failed to effect its intended purpose. Then a third and- final one was entered into on the 14th May, 1881. It refers to and recites the previous legislation, and the previous contracts between the parties, and ratifies the latter subject to the modifications contained in said agreement of the 14th Majr. It then declares the city of Pittsburgh “ sells at par and accrued interest ” to the appellants “ §6,000,000 of its Improvement Loan Bonds, authorized by Act of 9th May, 1879, and its several supplements and ordinances of councils.” It further provides that the appellants “ shall be allowed a commission of one per centum upon all bonds purchased or exchanged by them under the provisions of this agreement, the said commission to be allowed in adjustment of accrued *197interest or paid by the city warrant, if such accrued interest should not be sufficient to meet the said commission.”

It has thus been shown that the original Act, which authorized the issue and negotiation of the bonds, expressly stipulated that they should be sold for not less than par with accrued interest, permitting only a reasonable compensation to be paid for the sale or negotiation thereof. That restriction was not removed by any supplementary legislation. The first agreement does not contemplate any sale of the bonds to the appellants, but merely their employment as agents to sell the same for the benefit of the city. The next agreement does not affirm a present sale, but assumes the right of the appellants to purchase the bonds; and in case they do, then the bonds are to be furnished to them at par and accrued interest. The last agreement stipulates and declares “ the city of Pittsburgh sells at par and accrued interest ” to the appellants the whole six millions of dollars of bonds which it was authorized to issue, and allows them a commission of one per cent, on all bonds purchased or exchanged by them under the agreement.

The main question arises under this last agreement. Is it practically and substantially an agreement to sell the bonds to the appellants for less than par and accrued interest? If so, the sale is not authorized by the statute, and the contract therefor may be avoided.

In Dillon on Municipal Corporations, § 89, it is declared to be an unquestioned rule of law that a municipal corporation does not possess and cannot exercise any other powers than these, to wit: first, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient but indispensable. Any fair, reasonable doubt as to the existence of power is resolved by the courts against its existence in the corporation, and therefore denied.

It is-equally well settled that the agents, officers, or city council of a municipality, cannot bind the corporation by any contract not within the scope of its powers. Id. § 457.

The rule is said to grow out of the nature of such institutions, and to rest on just and solid grounds. The inhabitants are the corporators. The officers are only the public agents of the corporation. Their powers and their duties are prescribed by the charter or by statute. All persons dealing with them are bound to know the extent of those powers. Any rule or practice which permits municipal officers to transcend their powers is clearly contrary to public policy, and fraught with such mischievous and injurious effect to the tax*198payers of the municipality, that it should receive judicial condemnation.

It is not claimed that the power to issue and sell these bonds is given by the charter of the city, or that it is incident to,-or necessarily flows from, any power, therein contained. On the contrary it is conceded that the power claimed arises solely under the statutes cited.

What then is the true character of the final contract ? A clear distinction exists between an agency to sell bonds for the city and a contract to buy them of the cit}'-. The former is a transaction which is to give the city the full.benefit of the sum for which they may be sold.-less the reasonable compensation agreed to be paid for effecting the sale. The latter wholly deprives the city of any of the excess above .par for which the appellants may sell them, however large it may be. In the one case the appellants are bound to act in good faith, and to endeavor to obtain for the city the highest market value for its bonds. In the other the bonds are to become the property of the appellants, so they may dispose of them as they see proper and enjoy the proceeds thereof. The relation between agent and principal is so essentially different from that which exists between vendee and vendor, that .it is useless to further elaborate the distinction.

Was not this transaction undoubtedly a sale? The parties to the contract called it a sale. It had all the incidents of one. The price to be paid by the appellants was definitely fixed. The city was not to derive any profit- from a sale by the appellants at a.higher price, nor to suffer any loss in case of a sale by them at a lower price. The appellants alone would enjoy the profits of their sale, and suffer the loss, if any. In fact, however, it is shown .that-at the date of this contract the bonds were worth more than par, yet practically the city was to receive only ninety-nine per cent, of their par value.

The credit of the city of Pittsburgh was bad during several years prior to 1879. It had once disputed the validity of its bonds to the amount of over five millions of dollars; but they had been adjudged to be valid.

The general business prosperity of the country had increased and the credit of the city had improved, yet the actual market value of the bonds does not appear to have been known to the officers of the city in the spring of 1881.

The bill does not charge any intentional fraud, nor pray that -the contract be set aside on that ground. The Master finds as a fact, and we think correctly, that no actual fraud has been proved on. the part of any one in the procurement or execution of the contract 14th May, 1881; Previous contracts *199having failed to enable the city to realize on the bonds, it very naturally was induced to enter into some other arrangement to provide for its maturing indebtedness, on some of which it had paid seven per cent. The method, however, which was adopted, overlooked the restricted authority of the city to negotiate these bonds, under the statute. It cannot correctly be said that this transaction in effect is the same as if the appellants had been authorized to sell the bonds at par, and were to be paid a commission of one per cent, for making the sale. In such ease they would have been entitled to the one per cent. only. Under this contract of sale, as the evidence discloses, they may realize a profit of five per cent. If they 'had acted as agents the larger portion of this would enure to the benefit of the city.

It is urged to now enjoin against a further execution of the contract will destroy the validity of the bonds already delivered, amounting to over one and a half million of dollars, and which are in the hands of third persons. This argument overlooks the fact that the city was authorized to make, issue and sell the bonds. The authority to sell was a separate and distinct power. The restriction imposed on the sale related only to the price at which the city should sell them. Having in consideration of nearly their value actually sold and -delivered them, and having thereby caused them to pass into the hands of good faith purchasers, the rights of the latter eailnot be affected by a decree enjoining .against any further delivery of bonds under the contract, and a cancellation of the unexecuted portion thereof.

Many questions were argued which we deem unnecessary to discuss further than they are answered by what we have already said, as they do not change the conclusion at which we have arrived.

We are not willing to adopt all the reasons assigned by the learned judge to sustain his decree, nor the decree itself to its full extent. We must therefore reverse portions thereof, in order to modify its terms in accordance with this opinion.

. And now, October 5th, 1885, it is ordered that the appeal be dismissed at the costs of the appellants, and that the third paragraph of the decree relating to the payment of costs by the appellants be affirmed, that the residue of the decree be. reversed, and in lieu thereof it is further ordered, adjudged and decreed that the treasurer of the city of Pittsburgh be perpetually enjoined and restrained from receiving from the said Henry Whelen, Wilson McCandless and John D. Scully, or any or either of them, under the arrangement or arrange'rnents dated respectively April 3d, 1880, March 23d, 1881, and May 14th, 1881, any money for the redemption of,the *200Street Bonds of said city, in said bill mentioned; and that the mayor of the city of Pittsburgh, the controller of said city, and the city of Pittsburgh, jointly and severally, be perpetually enjoined and restrained from delivering to said Henry Whelen, Wilson McCandless and John T. Scully, or any or either of them, or to any person o'r persons for them, or to be delivered to them or anjr or either of them, any bonds of said city under said arrangement or arrangements, either for cash or in exchange for any Street Bonds of said city; and that said arrangements be hereby annulled, avoided and cancelled.

Concurrence Opinion

Mr. Justice Gokdon

delivered the following concurring opinion, October 5th, 1885:

I concur in the opinion of the majority of this court as delivered by the Chief Justice; and I also agree with the court below that the contract of May 14th, 1881, if of any value whatever, must be taken as an absolute sale of the bonds of the city of Pittsburgh to Henry Whelen and Wilson McCandless. “ The city of Pittsburgh sells at par and accrued interest, to Henry Whelen of the city of Philadelphia, and Wilson McCandless of the city of Pittsburgh, $6,000,000 of the Improvement Loan Bonds, authorized by the Act of the 9th of May, A. D. 1879, and its several supplements.” Then follow the conditions of payment and delivery, and it concludes with its execution by the signatures and seals of the sub-committee of finance, and Whelen and McCandless. “ If this is not a contract of sale I must confess my ignorance of the form and purport of such an instrument, and it does seem to me that the contrary assumption ignores both the common and technical meaning of the words which the parties have made use of. “ The city of Pittsburgh sells at par and accrued interest, to Henry Whelen and Wilson McCandless, $6,000,000 of the Improvement Loan Bonds.” There is no such thing as an avoidance or misinterpretation of this language; it is a plain, straightforward sale of .these bonds at par, as required by the Act quoted. Indeed, nothing else is pretended; the counsel for the appellants says: “ the syndicate are, in effect, purchasers of the bonds.”

By what authority, then, does it come about that Whelen and McCandless, by a subsequent clause of this same contract, are to be allowed a commission of one per centum-on all bonds purchased or exchanged by them? A commission for buying these securities ? It can hardly be argued that as agents for the city they sold to themselves. Such a transaction would be a legal curiosity, and worthy of careful scrutiny, but the fact is, that they were purchasers directly from the city, and so the contract of sale reads. It follows that this pretended *201commission means nothing more or less than an abatement of one per centum from the price to be paid for the bonds; in other words, these purchasers were to have them at one cent less on the dollar than par. The result is, that the city authorities were acting ultra vires when they made this contract.

The Master, however, argues that if these parties acted in good faith under the previous arrangements, that is, those of the 23d of April, 1880, and 23d March, 1881, and bought the bonds themselves at as high a price as could be obtained from any other party, the allowance of a commission did not •violate either the spirit or letter of the statutory prohibition. There is here, however, an assumption that the facts do not support. These parties cannot stand on the hypothesis that in the final contract they were acting as agents for the city, not only because of the patent inconsistency of making a sale to themselves, but because this contract so modifies the previous arrangements as to annul the agency for the disposition of the bonds, and substitute the agreement for an absolute sale. Moreover, whether the appellants bought the bonds for a price as high as others would have given, is a matter unknown, for no opportunity was given for competition after the supplementary Acts of March 11th, and April 15th, 1881. Thus the Master’s conclusion respecting the commissions fails for .the want of the facts necessary for its support, and there is only left the anomaly of a bonus given to Whelen and McCandless, not as sellers, but as purchasers, of the city bonds. The fact that these securities have, in violation of the express terms of the Act of Assembly, been sold at less than their par value, cannot be concealed or its effect destroyed by so flimsy a theoiy as that volunteered by the Master. Worse still, if his hypothesis be correct; if these men were indeed still acting, under the previous arrangements, as the agents of the city in the execution of the contract of the 14th of May, then, according to the Master’s own finding, was the whole transaction in which they were engaged, so tainted with fraud (he calls it legal fraud), that the city was not bound by it.

In his own language: “That the city has not ratified said contract of May 14th, 1881. He is, therefore, of the opinion that the city of Pittsburgh has the right to disaffirm said contract of May 14th, 1881.” We cannot exactly understand how the city can disaffirm a contract it never made; but no matter, for the effect of the finding is not only to avoid the contract, but also what might be regarded as its ratification by.the city councils in their action, on the report of the financial committee, of December 11th, 1882. In this I agree with the Master; that is, on the hypothesis that he is correct in assuming that Whelen and McCandless were, at the time of *202making the contract under consideration, acting as agents of the city, and as such were to receive commissions for the sale of the bonds to themselves. Such a contract with a trustee, acting for himself as well as for his principal, would be constructively fraudulent, and, without regard to the bona fides of the transaction, voidable by the principal.

If, however, as the report abundantly shows, there was fraud in fact, either by false assertion, or by the suppression or concealment of that which these agents, if such they were, knew to be proper for the officers of the city to know, the contract would for that reason be void, and not susceptible of ratification if it involved a loss to the city. Indeed, such ratification on part of the city officials would in itself be a fraud, and therefore open to the investigation of the citizen. With the principle here stated the learned Master was doubtless acquainted, hence, he designates the actual fraud which he has discovered and pointed out, as legal fraud, thus making the contract susceptible of ratification by the councils, and so turns the plaintiffs out of court. The error involved in this conclusion is obvious, and needs no discussion.

If, on the other hand, the appellants are to be regarded as mere purchasers, as they seem to have regarded themselves, and if at the time of the making of the 14th of May contract they were released from their previous obligation as city agents, they were bound by no legal tie which prevented them from making the best bargain possible with the municipality. In such case, their experience and knowledge were their own, and they were not obliged to impart it to the committee with which they were dealing. In either case, however, the contract comes to nothing; in the one because it is void for fraud; in the other because prohibited by the Act of 1879, hence its execution on part of the city was unlawful.

But, returning to the position assumed by the Master, and treating these men as the confidential agents of the city, it is impossible for me to comprehend how this transaction can have one moment’s favorable consideration in a court professing to be governed by the rules of equity. I have no hesitation in assenting to what his Honor, Judge Ewing, finds to be a fact; that is, that there was actual fraud in the procurement and making of the contract, and that with the peculiar moral ideas of the defendants we have nothing to do. They may have thought it a good thing to first gain the position of a financial confidant of the municipality, and when in that position make a bargain with it as though they were dealing at arms’ length. But, with the honorable judge below, I am not of that opinion. To sustain the court in this finding we need go no farther than the Master’s report, and even in it we *203•might confine ourselves to the citation of the testimony of Mr. Whelen. This gentleman when asked whether his firm had not been dealing in Pittsburgh bonds prior to the execution of the contract of May 14th, 1881, answered: “ I think not; it would not have been a wise thing on our partand on being further interrogated why he did not consider it a wise thing for his firm to do, said: “ why, after I became the owner of a lot of bonds of course it would be my interest to put the price of the bonds up, if I could, and not before, and that is true of all marketable securities.” Under this piece of evidence, the Master, whilst giving Mr. Whelen credit for acting up to what he believed to be the whole measure of his duty to the city, concludes that he misapprended his real position, and regarded himself only as a possible purchaser of the bonds. T agree that there is here somehow a misapprehension; Mr. Whelen certainly did misapprehend both his position and duty, or the Master misapprehended Mr. Whelen and his associates. If it be true that these bankers, whilst acting as agents for the city, were thus quietly endeavoring, if but negatively, to prevent an appreciation of Pittsburgh securities, and in this manner to keep down the city’s credit until they could secure to themselves the control of the forthcoming bonds, the moral vision of that man, or court, that cannot see a gross fraud in such a transaction, must not only be obscured but totally perverted.

The same implication may, in like manner, be drawn from the fact that not a word was said to the committee of the sale by Whelen in November, 1880, of five per cent. Pittsburgh bonds at $1.05; the quotation by his own house, in July of the same year, of the same bonds, at a premium; of the sale of compromise bonds at $1.07 and $1.08, and of the premium on the five per cent, building bonds of 1880. So, syndicate and committee alike seem to have overlooked the prompt and eager bidding of the city banks and business men for the $1,400,000 Temporary Loan of March 1879. Furthermore, in the face of this exhibit of the sound financial standing of Pittsburgh; regardless of its assured commercial prosperity, its .credit was impeached. This .credit had been at one time doubtful, therefore, and notwithstanding all the evidence to the contrary, it was alleged still to be doubtful. Great care seems to have been taken to impress this upon the committee; a committee, who having tried the experiment, soon discovered that however it might be as to their skill in the several businesses in which they were engaged and understood, they were no match for these astute bankers in the matter of finance. As the Master informs us, the mere shrug of Whelen’s shoulders was a.matter.of awe and terror-to those *204unskilled committeemen. Now, all this was well enough as long as these appellants were understood to be acting as agents of the city in the sale of her bonds, for in that case they could make nothing by the depreciation of these securities since they could only have their commissions, and all that they said and did might be regarded as merely an effort to enhance the value of their services in the eyes of the committee. So, it would have been all well enough had they from the first occupied the position of mere purchasers or bidders, for then their knowledge would have been their own, and the city could not justly have complained that they withheld it; in that case they would have dealt with her at arms’ length, and if by their skill and silence they got the better of the bargain, they would have been of good standing at least in the. forum of legal ethics. But if we are to take it that all this negotiation for special legislation, all this suppressio veri, this carefulness to do nothing that would tend to appreciate the credit of Pittsburgh, had for its object the contract of May 14th, 1881, by which they, acting as the agents of the city, procured a sale of the bonds to themselves, and at the same,time retained their commissions; when by these means they seek to draw from the municipal treasury some half million dollars which as much belong to the city as any other part of the proceeds of the bonds, the matter presents a very different appearance. It cannot be sleeked over under the name of ‘legal fraud’ and so passed off as something that has done the citizen no harm; as a matter with which he has nothing to do, and as though if only the treasury were thus depleted in a genteel manner, and by respectable men he ought to be satisfied. How coolly this man, whom the Master presents to us as a paid city agent, tells us that his house took care not to have anything to do with these bonds till after the contract of the 14th of May ; “ It would not have been a wise thing”; it would have been working in the interest of his principal, and that was not a wise thing to do. But “after I became the owner of a lot of bonds it would be to my interest to put up the price of those bonds, if I could, and not before.” And this agent, this attorney in fact of the city'', who steadily keeps in view his own interest to the exclusion of that .of his principal; who carefully prepares the way for the 14th of May contract, through and by which he and his associates are to get at par city bonds representing 16,000,000, which even then commanded a premium of five per centum, and which he and they knew would, in their hands, still further appreciate ; this municipal agent and his associates, who, if the Master’s position be correct, deserve anything rather than compensa*205tion, are to have for their services in thus helping themselves, in addition to their enormous speculation, the modest sum of sixty thousand dollars!!

Now, while I think the conclusions above stated are fairly deducible from the position assumed by the Master; that is, that the appellants occupied the double position of purchasers and agents, yet with the majority of this court, I am unwilling to adopt a position which would put the appellants in a light so unenviable. The character of the men engaged in this transaction would seem to negative so harsh an assumption, and we, therefore, the rather adopt the conclusion of the court below, that the agreement of the 14th of May abrogated the previously existing agency, and put the appellants in the position of purchasers of the bonds at a discount of one per centum.

I also agree, that though the contract of the city with the appellants was without warrant of law, that this fact in no wise affects innocent holders of the bonds to whom they have been passed by the defendants. The position of such holders has been so fully discussed in the recent ease of Kerr v. The City of Corry, (9 Out. 282), that further time spent upon the question would be to no purpose.

Trttnkey and Sterrett, JJ., concur in the decree, for reasons expressed in the opinions of the Chief Justice and Justice Gordon.

Dissenting Opinion

Mr. Justice Paxson

delivered the following dissenting opinion October 5th, 1885, in which Justices Green and Clark concurred.

The complainants below are citizens and taxpajmrs of the city of Pittsburgh, and they filed this bill to prevent the corporate authorities of said city from further proceeding in the execution of a contract by which the appellants had agreed with the said city to place1 some six millions of its five per cent, bonds at par. The complainants allege, 1st, that the contract was tainted with .fraud, and 2d, that it was ultra vires; and upon these grounds they ask what practically amounts to its rescission.

As this is asked of a court of equity, a court whose decree is of grace, not of right, and whose conscience must be moved before it will act, it is proper to pause just here before I enter upon a discussion of the case, and consider intelligently what we are asked to 'do. This is the more necessary from the fact that the case involves large public as well as private interests, and has excited considerable feeling in the locality to be affected by it. The oral arguments to which we have listened, and *206the printed arguments which we have read, plainly reflect this state of things. It is therefore the more necessary to bring to the consideration of the case that calmness which should always mark judicial action.

It is an undisputed fact that the contract has been executed to the extent of $1,500,000; that is to say, bonds to that amount have been delivered by the city authorities to the appellants, who paid for them at par, and who have resold them to innocent parties. We have then an application on the part of persons who were not parties to the contract to strike it down after its execution to this large extent, upon the ground that it was fraudulently made, and was moreover an excess of authority on the part of the city officials. If either ground were well taken, it would be the duty of the court to grant the prayer of the bill. But it ipust be apparent to the dullest comprehension that such action, involving consequences of so serious a nature, ought not to be had excepting after the most mature and careful consideration, and upon the clearest proof.

• The first question to consider is the charge of fraud. Upon this point the Master has found that there was no actual fraud on the part either'of the city authorities or the appellants in the making of the contract, but he finds there was constructive- fraud, in this, that the appellants, Whelen and McCandless, occupied a confidential relation to the’ city; that they did not disclose to the officers of the said city, as they ought to have done, all the facts and circumstances pertaining to the question of the valué of the said bonds, and necessary in order to determine the advisability of the making of said contract of May 14th, 1881, by the city as they (the members of said syndicate) possessed them; and that said syndicate have not shown that they gave to said officers of the city the benefit of their skill and judgment as financiers upon the question as to whether or not it was to the interest of the city of Pittsburgh to execute said agreement. •

The learned judge of the court below, goes further than the Master, and finds both actual and constructive fraud. He says in his opinion: “In our opinion the evidence shows, and we find as a fact, that there was actual fraud in the procurement and making of the contract.”

Actual fraud is a question of fact, and like every other question of fact must be determined upon the evidence. And it should only be found upon satisfactory evidence. When .it is brought against a number of men who have long maintained a high character for integrity, it should never be assumed, nor should it be inferred from weak and inconclusive facts. It is *207a charge which should never be lightly made, affecting as it does the business, moral and social standing of the parties.

It is a significant circumstance that throughout this vast mass of testimony there is no proof that any one concerned in this transaction, whether' as banker, member of councils, city officer or private citizen, was guilty of corruption. The profits of the contract belonged exclusively to the bankers who agreed to negotiate the loan. The evidence shows that not a dollar ever found its way, directly or indirectly, into the pockets of any city official, nor was there any agreement or understanding looking to such an event in the future.

In what then did the fraud consist? It was alleged that the contract was improvident on the part of the city; that the bonds were at that time worth more than par; that they have constantly appreciated in price, and are now selling at 110; that it was unnecessary to contract in advance for the placing of $6,000,000 of bonds, when many of the Street Bonds which they were intended to replace did not mature for two, three or more years. There were some other trifling matters thrown in as make-weights, but the real ground of the charge of fraud consists in the allegation that the contract was so manifestly adverse to the interests of the city at the time it was made, as in itself to constitute evidence of fraud.

It is necessary here to move with caution. It will not do to attach undue weight to the fact that the bonds have largely increased in value, for two reasons, viz.: 1st, that such' advance may be due to some extent to the contract itself, and 2d, that had the price of bonds declined instead of advancing, we would have heard no allegation of fraud; there would have been no bill filed to restrain the city from issuing the bonds, but, on the contrary, the strong probability is that the complainants and the municipality would have united in holding the appellants to their contract.

The present value of the bonds has little significance in the consideration of the question of fraud. Their value at the time the contract was entered into may have more importance. Was the contract so improvident; so adverse to the interests of the city, as to furnish reasonable grounds to .believe that it was betrayed by those having charge of its affairs, or that the city authorities were fraudulently misled by the bankers who were contracting with them ? It is plain that a mere error of judgment on the part of the city would not stamp the transaction as fraudulent. While, therefore, the wisdom of the contract is not an important element in determining its character, it is nevertheless necessary to refer briefly to the circumstances under which it was made. If made in good faith neither party can repudiate it merely because it was unwise. *208The law was so declared in City of Williamsport v. Commonwealth ex rel. Bair & Shenk, 3 Norris 487.

About the year 1877 the city of Pittsburgh defaulted in the payment of interest in a series of bonds amounting to over «$5,000,000, commonly known as the Penn Avenue Bonds. In Commonwealth ex rel. Whelen v. Select and Common Councils of the City of Pittsburgh, 7 Norris 66, we decided that these bonds were the bonds of the city of Pittsburgh and a part of its funded debt; and ordered a peremptory mandamus to issue to the councils of said city, commanding them to make provision for the payment of the interest. The interest which had accumulated at that time, together with interest for the current year, amounted to about $1,400,000, and the city had not the cash means on hand to pay this large sum. This was in the latter part of 1878. In January, 1879, two gentlemen selected by the finance committee of city councils, visited Philadelphia and New York for the purpose of procuring a loan of money to enable the city to pay this interest. They were unable to obtain the loan at either place, at any rate of interest, and returned and so reported. Subsequently an effort was made to place this loan in Pittsburgh, and after much exertion the movement became a success and the money was secured. The loan was for five years, and the rate of interest was six per cent. It further appears that each subscriber was to be allowed a commission of one per cent., or what would be the equivalent of it. It also appears that eventually more money was offered than was required, and the subscriptions were scaled down. We have no doubt that the taking of this loan by the citizens of Pittsburgh went very far towards re-establishing the credit of the city. That it did so fully, would perhaps be saying too much. Credit is a thing of slow growth, and when once impaired, from whatever cause, can seldom be fully restored by a single transaction, and the eifcyr of Pittsburgh could not reasonably expect, even after this show of confidence on the part of her own capitalists, to place a loan on as favorable terms as a cifcyr which had never defaulted on its bonds, nor litigated with the holders thereof.

At that time the total amount of property in the city subject to taxation was $95,556,668. The Penn Avenue Bonds amounted to $5,273,700; add to this the interest which had just been funded in new bonds, and we have $6,673,700 of debt growing out of the street improvements. The other debt of the city then outstanding amounted to $8,152,405.11, making altogether an indebtedness of $14,826,105.11. It will thus be seen that the city was in debt to an amount far exceeding the limit prescribed by the constitution. As the debt was *209all contracted before the constitution was adopted by'the peo-l pie, no constitutional question arises, and it is only important as bearing upon the credit of the city.

This was the situation in 1879. The Street Bond' debt matured at various times from 1883 to 1885. It thefefo'l’e; became a matter of concern to the city authorities to provide for the maturing of these bond’s. All of them excepting those) given' to fund the interest bore interest at seven per cent. It is a conceded fact that city councils regarded some action to, be essential to meet this emergency. Accordingly we learn that several Acts of Assembly were procured to be passed by councils, and a number of ordinances were passed by them for the purpose' of enabling the authorities of the city to replace these bonds as they matured by bonds bearing a lower rate of interest. We need not go- over this legislation and the' ordinances of councils in detail. It would extend this-opinion to an unreasonable length. It' is sufficient to say that for anything that appears, it was all done openfy, was knownto and discussed by the citizens, and through the papers, and: is free from any imputation of fraud.

The sub-finance-committee of councils actiifg under direct authority of a city ordinance, held a number of interviews, with the appellants, and with some of the leading business men and financiers of Pittsburgh, the particulars whereof I; have not the'timé, nor is it necessary to specify. It is suffi-" cient to saj*- that it finally resulted in the contract of May 14th,: 1881, between the sub-committee and Henry Whelen and Wilson MeCandless, two of the appellants, by which the appellants agreed to take $6,000,000 of the bonds at par and accrued interest, and were to be.allowed a commission of one per cent. This contract was subsequently reported to the finance committee, and by them unanimously approved. Afterwards the finance committee reported the same to councils,, and the repoft was there read. It does not appear that any-action wás taken upon it by councils ;»the Master reports that' it was never formally approved. There was evidently an,, opinion prevailing among some at least of the committee that; no action was necessary on the part of councils. We are not; required to pass upon this question, as the city is not here-denying the validity of the contract nor of the bonds issued: under it; nor is she repudiating the action of her finance com-; mittee. On the contraiw, she is an appellant in this case ; has filed an answer expressly disclaiming any participation in this.' blow at her crédit,and asking that this decree may be reversed.Nor is the course of the city open to criticism on this account.; She has received about $1,500,000 of the appellant’s money,which she has applied-to the extinguishment of that much of ' *210her public'debt-. To now repudiate the contract under which this was done, would have been a blow at her financial standing far more serious in its consequences than could be com-! pensated by any doubtful gain she could possibly receive by assisting in striking down this contract.

"Was tlie contract made in good faith ? Upon this point the: evidence is overwhelmingly in favor of the appellants. W) R. Ford, one of the members of the finance committee who signed; the contract, testifies:

Q. So far as you came in contact with financiers, so far as you were conversant with the financial outlook at that time, did you or did you not believe that it was a favorable time for-the securing of a low rate of interest for the city of Pittsburgh ?

A. I did, sir, because at that time I thought money was ruling pretty low, and we could not tell what the circum-, stances of trade might hereafter be, which might make a bet-; ter demand for money, and my idea was that if we could secure the contract at a low rate of interest, as I took it, a fair rate of interest, as I thought 5 per cent, was, it would be better for us than*to take' the risk of what might occur at the time of the presentation of the bonds for payment.

A. F. Keating, a member of the sub-committee, and also a party to the contract, testifies as follows:

Q. Give the Master the reasons which led you to believe it (the contract) to be expedient and advantageous.

A. That is a pretty long tale to tell. Well, I was pretty conversant with the management of the city’s finances at that time, and had spent a great deal of time in framing the, Penn Avenue compromise. I necessarily had to have a good: deal of knowledge with regard to the matter in which the city’s debt, its interest and appropriation and the expenditures, that had been made ; and I also knew the fact that when the; city was in distress, requiring money to paj*- its interest that; it had defaulted on, that the citizens of Pittsburgh had sub-, scribed $1,405,000 for that purpose, but 1 was also aware of.' the fact that they made these bonds five year bonds, and that-they matured just previous to a large amount of Street Bonds which the}' were to paj^ the interest on, and I concluded froni that that there was not very much hope for a permanent loan for any great amount, for any great length, to be taken by her own citizens. I knew that the reputation of the city had gone before it in every financial centre, and that she had defaulted on her railroad debts, and had defaulted on the interest of the Street Bonds ; that she was very greatly in debt, and that our people had previously decried the credit of the city. That we never had introduced an appropriation ordinance without its; *211being looked upon as exceedingly harsh in its rate of taxation, and I knew that the credit of Allegheny county had always been above ours ; that she had placed a loan in February or March of 1880 at 5 per cent., sold $1,128,000 of it at par, and subsequently sold a smaller amount, $400,000, at a premium. Knowing that her bonds had always sold higher, I thought if we could get, I believed if we could get, a contract that would give us the same rate of interest for a sum of money that was more than the county debt entire, we would be doing a very good thing.

R. B. Carnahan, Esq., a member of councils and of the finance committee, also testified that in December, 1881, the Monongahela Navigation Company had decided to issue a new loan for $500,000, and that the directors after consultation had fixed the rate of interest at five per cent, as the best terms they could get. That this circumstance had some weight with the witness, as he regarded that corporation as good as any in the state of Pennsylvania. The witness also referred to some School Bonds in his School District which they were not able to get below five per cent, in 1881, and to the five per cent, bonds issued by Allegheny county in payment of riot losses, which were issued in 1880 at par; subsequently they commanded a small premium. The witness then continued : “ There were other matters, too, if you want me to give the whole subject; I considered the credit of the county was good and the credit of the city was bad. There was no interest appropriated and no money for interest, I think, in 1877 and 1878. In 1879 a mandamus was issued by one of the judges of the Court of Common Pleas No. 1; he had rendered a long opinion which went abroad against the'validity of the bonds ; I remember reading it in the New York newspapers ; we were in the position of repudiators, forced to pay under an order of court, and under the opinion of one of our local judges that the bonds were not good; these things were against the credit of the city; and I was informed that you, sir, had gone East to negotiate a loan, and found the doors of the bankers closed, and they would not talk to you.”

It further appeared that on April 1st, 1880, $141,000 Temporary Loan Street Bonds fell due. On the 19th of March preceding the sub-finance committee had advertised in the official papers of the city of Pittsburgh for a loan of that amount to redeem these bonds. The advertisement invited bids at par for bonds at four, four and a half and five per cent., to be accompanied with a certified check for ten per cent, of each bid, and the right was reserved to reject any and all bids. Not a single bid was received for either class of bonds. This advertisement has been the subject of much *212criticism, and the court below evidently regarded’ it as a link in the chain of fraud. The learned judge said : “If it were intended to make a show of inviting proposals where none were desired, it would be intelligible. Of course no bids were received.” It would have been more satisfactory if the grounds of his objection had been stated. We see nothing upon the face of it to indicate fraud or bad faith. The notice was short, it is true, but the learned judge omits to state, what the evidence clearly shows, that this was no fault of the committee, and it is not alleged that the appellants had anything ■to do with this advertisement. -The truth is the finance committee had inserted the $141,000 in the appropriation ordinance for that year, but one branch of councils struck it out, and -in'its amended form the ordinance only passed about two .weeks before the advertisement appeared, and as the Street Bonds' matured on the first of April, all the notice appears to have been given that was practicable. The proposal for the three kinds of bonds was proper, and while the stipulation for •ten per cent, in cash was perhaps unnecessary, it was not unusual in such transactions, and would not be likely to deter bidders. The fact remains that not a bid was offered.

There was also a large amount of testimony given by respectable and prominent gentlemen of Pittsburgh — bankers, •merchants and manufacturers — to the effect that under the circumstances they regarded the contract at the time it was made as wise and judicious, and to the advantage of the city; There was also testimony of an opposite character ; that it was unwise, and that in the opinion of the witnesses the bonds could have been placed at a better rate. They were but opinions, however, and do not touch the question of good faith. It may be, looking at the transaction from the standpoint of 1884, we might conclude that the bonds could have been placed to better advantage, but even this is by no means certain. The occasional sale of a small lot of bonds in 1880 and 1881 at a premium would not of itself furnish any safe guide 'to assume that the large quantity of $6,000,000 could be disposed of in excess of par, and it furnishes no justification for branding as rogues all concerned in the transaction. I am clear that there is not a scintilla of proof within the four corners'of this record to show that'any actual fraud was committed by any one.

Thus far we agree with the Master, but we dó not assent to his finding of constructive fraud. This charge, as before oN served, rests 'upon .the existence of an alleged confidential relation between Messrs. Whelen and .McCandless and the sub-committée, and .the neglect on the part of the former to giye the committee full information as to the value óf the bonds. *213Granted the confidential relation, what fact did they suppress or withhold from the committee which they ought to have communicated? The finding of the Master, already quoted, upon this point is flatly contradicted by the evidence. When Mr. Whelen was on the stand he was asked this question: “ Mr. Whelen, I wish you would state whether, at the time or before the making of these contracts, from time to time you furnished the city authorities that you met with all the information possessed by you bearing upon the question of placing these securities properly, their value,” &c.; to which question the witness replied : “ I did as fully and frankly 'as it was in my power to do.” It also appears that Mr. Whelen and Mr. McCandless furnished some of the members of the finance committee with accounts of the sales or quotations of bonds, Pittsburgh and others, in different financial centres, and there is not a word of testimony that any such information was withheld. Some importance was attached to the fact that in November, 1880, Mr. Whelen had sold to the Dollar Savings Bank of Pittsburgh a small amount of what are known as Pittsburgh Railroad Compromise five per cent, bonds at 105. Mr. Ford knew of this transaction, however, and it is of slight importance from the fact that the bonds in question appear to have been of a higher market value; they were issued by the city in compromise.of a long litigation, and the holders thereof had no reason to anticipate further difficulty in regard to them.

That the committee sought information and were not denied it, is manifest from the following extract from Mr. Ford’s testimony :

Q. Did you discuss, Mr. Ford, from time to time with Messrs. Whelen and McCandless, or either of them, the price and value of Pittsburgh securities between the making of the first contract and the third contract ?

A. Yes, sir.

Q. Did they give you the information that you sought front them ?

A. Yes, sir; I never asked Mr. Whelen or Mr, McCandless a question that they did not tell me what I wanted to know.

Where all the parties to a contract expressly deny under oath any concealment or withholding of material facts, it requires something more than the unsupported allegations of strangers to the transaction to convict any of the parties of süch concealment. •

The gravamen of this charge rests in the fact that the appellants did not inform the committee that for the next few years there would be an increasingly easy money market, and that all municipal bonds would advance in value. How were' *214the appellants to know this ? The future was concealed from their vision as well as from others. The opinion of many prominent men of Pittsburgh whose testimony is before us, shows that they entertained a different view of the situation. They thought that the revival of business would increase the demand for, and the rates of money, and that the time was favorable for providing for the large indebtedness of the city soon to mature, by securing a five per cent, loan at par. And the appellants may well have thought that by taking such a loan — thereby guaranteeing the credit of the city for several years — they were assuming a serious risk. There is much testimony which tends to prove that the very fact of this loan having been taken, at par, by capitalists admittedly able to carry out their contract, hada beneficial effect upon the credit of the city, and was an important element in the rise in value of its bonds.

The change in the contract by which the appellants, instead of being merely the agents of the city to place the loan, agreed to take all the bonds at a fixed price, was made at the request of the city authorities. This change may or may not have been wise. We express no opinion upon it. The effect of it was to relieve the city from'the risks of the money market and to throw such risk upon the appellants. If the latter must take the venture, of a possibly tight money market and a fall in the price of the bonds, it would be a harsh rule which would deny them the advantage of a rising market.

It was also urged as evidence of fraud that the contract was executed by the sub-committee on the last day of the life of the councils of which they were members; that. the existence of the contract itself was concealed, and that the said contract was withheld from the newspapers for publication.

The fact appears to have been overlooked that the contract was but the close of a long negotiation, which had required much time, thought and labor on the part of the committee, and had the matter hot been closed then, it might have been necessary to commence de, novo. This would have involved further delay. And if the committee honestly believed, as it is manifest they did, that the contract was for the best interests of the city, no good reason appears why they should not have completed their work when they did. That their belief was shared by many of the best citizens of Pittsburgh is clear upon the evidence.

The alleged concealment of the contract was much magnified. There was no attempt to prove that either of the appellants participated in or approved of any concealment. The contract was reported’ by the sub-committee to the finance committee, and by the latter to city councils. This was done *215in- ail orderly and regular manner. The contract was then handed to the City' Controller for safe keeping. It was not the business of that officer to give such papers to the press for publication without authority. Subsequently, when the demand for its publication became general, a copy was furnished by authority and published in the newspapers. There was nothing in all this to show a fraudulent concealment of the contract.

Considerable stress was laid upon the fact that Mr. Wlielen, one of the appellants, stated in his testimony that his firm did not purchase Pittsburgh five per cent, bonds at a premium prior to the final arrangement of May 14th, 1881, and that he did not consider it prudent to do so. Further, that he could have made the price either 95 or 105.

This was pressed as evidence of fraud.

If so, it must’be from the fact that his firm was under' a duty to buy Pittsburgh bonds, or (2) that they were in duty bound to put up the price.

The first proposition is no.t worth discussing. The second rests upon an entire’ misapprehension of Mr. Whelen’s testimony. • It is assumed that he could, by a nod of his head or wave of his hand, put up the price of the bonds. But the market for municipal bonds is not affected in that way. The' way, and the only way by which such a result could have been accomplished, would have been to buy at a fixed price all the bonds that were offered on the market. This, in time, would give the bonds a fixed market value, when the purchaser could begin to sell and reimburse himself for his outlay. This course of dealing is known to every intelligent man at all conversant with the negotiation of municipal and other corporation bonds. It was the way Jay Cooke kept the Northern Pacific Railroad Bonds at par some years ago, when he was acting as the financial agent of the company, and it resulted in his financial bankruptcy. The load became too heavy to carry. To say that Mr. Whelen was in duty bound to employ his capital in this manner, and to assume the risk involved, and that his failure to do so is evidence of fraud, is too absurd a proposition to be seriously considered.

We find nothing in the evidence from which even a constructive fraud can be properly inferred.

The remaining question is one of power. Upon this point the report of the- Master is entirely satisfactory, and we do not consider it necessary to discuss it at length.

- The Act of 1879 expressly empowers the city councils to authorize by ordinance “ the making, execution and negotiation of bonds,” &c. It may fairly be inferred from this language that city councils were not expected to issue the bonds-*216themselves. Indeed, it was impracticable to do so. Corporations, whether private or municipal, act by agents. This is what councils did. They authorized the finance committee, or its sub-committee to make this loan. They authorized it to be made at six per cent, if they could' do no better. They did better' and procured it at five per cent. How then can it be said that the committee fixed the rate of interest without consulting councils. Where an agent is authorized to contract for six per cent, and contracts at seven, tliere is good reason why the consent of the principal shall be had before he can be bound. But where the agent contracts for five per cent, under an authority to give six, no reason is apparent why the principal may not be bound for the lesser sum.

But it was urged that there was an excess of power in this that while the sub-committee were authorized to pay a commission of one .per cent, upon a negotiation.‘of the bonds by the agents of the city, yet when the syndicate became -the' purchasers of the bonds they ceased to be -agents, and were-not entitled to the commissions; hence, that in point of fact the allowance of. one per cent, as commissions reduced the sale from a sale of bonds at par to a sale at 99 cents.. • ■

This is a very narrow point and does not call for'.an extended discussion. Giving it the widest scope claimed for it,' we see nothing in it to justify a chancellor in striking down a partly, executed contract, where the rights of other' parties; have grown up. But I am unable to see any force in the point. The contract was in terms a sale of the bonds at par. and accrued interest. Was the agreement for a commission illegal? Councils had expressly authorized it in- case the appellants negotiated the bonds. Does the form which the-transaction finally assumed make any difference? We are considering this question in a court of equity; a court which disregards form and grasps the substance. The substance of this contract was that appellants should place these bonds at a fixed price, the appellants taking the risk .of the market. No one supposed then, no one supposes now,, that the appellants were taking these bonds upon their own account as a private investment.. The bonds were placed at par and-accrued interest; and- the agreement to pay appellants a commission of one per cent, in no way affects their validity. It' does not touch the question of power to issue the bonds. The question of the appellants’ right to commissions cannot be decided in this .proceeding. It is a matter between, the. appellants and the .city, with which the appellees have .no standing to interfere. The appellees cannot control the dis-. cretion of..the city in a matter in which it,has the power to. act, A. .taxpayer as. .such can only come, in and .be. heard, *217’where the city is proceeding in excess of power and in violation of law. This is the scope of Sharpless v. The;City, 9 Harris 147, and the cases which have followed. It cannot be seriously contended that the city of Pittsburgh may not lawfully pay this, commission.

The court below was of opinion that the contract permitted the syndicate to demand of the City Controller the full amount of the $6,000,000 of bonds even if that amount should not be required to redeem the Street Bonds, and attention was called to the fact that there was a considerable amount in the city treasury,’the proceeds of the claims compromised under the Penn Avenue Act, and that more would be realized hereafter; that the proceeds from this source would altogether amount to $2,000,000, all of which would be applicable to the retirement of the Street Bonds. The evidence shows that the learned judge was probably over sanguine in his expectations upon this point. Be this as it may, I see nothing to interfere with the right-of the city to apply this money when and as it is received, to the payment of Street Bonds. The contract means, taking it as a whole, that the appellants are to furnish so much money, and no more, as may be necessary to retire said bonds. That was the subject matter about which the parties had been negotiating, and which culminated in the contract of May 14th, 1881. The amount inserted in the contract, $6,000,000 was the sum supposed to be necessary; and taking the whole amount of Street Bonds with the interest, and the probable receipts from the compromise referred to, would appear not far from accurate. It would be a strained construction of the contract to hold that the appellants are entitled to $6,000,000 of bonds without reference to the amount required to retire the Street Bonds.

I have not overlooked the constitutional question involved,' notwithstanding its extreme minuteness. Neither the Master nor the court below appear to have treated it with much favor. The sixth section of Article III. of the constitution provides that: “No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.” It ■jvas urged that the Act of. 11th March, 1881, supplementary to the Act of May 9th, 1879, was in conflict with this constitutional provision for the reason that the second section of the Act of 1881 repeals the fifth section of the Act of 1879 with-* out repeating the language of the repealed section.

. It is very plain that the evil which the constitution was intended to prevent was the revival of laws by their title merely, or the amending or extending the same in like man*218ner.- The learned Master has given a sample of this kind of legislation in an Act to be found at page 85 of the P. L. of 1872, which provides that “an Act entitled,” &c., be further amended by striking out from the first section thereof the words following, viz: “ Montgomery county,” and the “ village, of Bustleton,” and inserting in lieu of the words “Montgomery county ” the word “ Newtown,” and in lieu of the words “village of Bustleton,” “Newtown, Bucks county;” and by striking out from the third section of said Act the words “four” and “twenty-five,” and inserting in lieu of the word “four” the word “thirty,” and in lieu of the words “ twenty-four ” -the word “ fifty,” &e., &e. There is abundance of this character of legislation running through the Pamphlet Laws for many years prior to 1874. There are two objections to it which no doubt influenced the constitutional convention; 1. Such an Act can only be understood by reference to the Act which it was intended to amend, and 2. Such legislation furnishes great facilities for what are commonly known as “ snakes,” a homely but apt phrase to denote something of a vicious nature concealed in the body of the Act.

It would have been entirely competent for the constitution to have required that when an Act or a section of an Act was repealed, the Act or section so repealed should be recited at length in the repealing Act, but it has not done so. The section which supplies the one repealed is given and published at length. This is all the constitution requires. “ So much thereof as is , amended.....shall be re-enacted and published at length.” If the whole amended law was intended to be republished at length, of what force are the words “so much thereof?”

We are of opinion that the Act of 1881 does not come within either the letter or the spirit of the constitutional prohibition.

It was further objected to these bonds that the provision contained therein by which the interest is made payable at the banking house of Henry Whelen & Co., in the city of Philadelphia was not authorized by the Act of 1879 or its supplements. Conceding this to be so it furnishes no reason why a chancellor should interfere with a partly executed contract.It was not a fraud upon or by the city and will involve the complainants, as tax-payers, in no loss. The change was doubtless made when it was found necessary to seek an eastern market for the bonds. If not absolutely essential, it was at least calculated to increase the facility for their negotiation, and in this sense may be said to bé a positive benefit to the city. It is well known that to negotiate such bonds to advantage the interest must be made payable at the financial centre from which the money is expected to come.

*219The foregoing was written shortly after the rising of the court at the last Terna in the Western District, as embodying my individual view of the case. It is.now filed as a dissenting opinion.

I regret that the majority of the court have not been enabled to reach the same result. I hope I may be mistaken,.but I fear this decision will be a disaster to the city of Pittsburgh in the distrust which it may excite as to future issues of bonds under its corporate seal. It is true the act is not that of its corporate authorities, but it comes from her citizens and taxpayers, and if any one or more of them may thus trifle with her credit upon such grounds as have been developed in this case, her outlook for the future to my mind is not cheering.

The majority of the court have relieved the appellants of the charge of fraud. There is nothing to sustain it, and it should never have been made. The decision rests upon the single narrow point that the contract was in reality a sale.of the bonds at 99. In terms it was a sale of the bonds at par, and in point of fact I believe not a bond has been sold for less. Whether the appellants, after having retired all the Street Bonds, would have been entitled to a commission of one per cent., is a question which in my judgment might well have been left until it arises. That is a question which could only be raised by the city. The complainants have no standing to raise it, as the city possesses the power to contract for and paya commission. As before observed, it is only where the city is exceeding its power that a tax-payer can be heard.

The case was argued as though the city derived its sole authority from the Acts of Assembly cited. But it is settled law that a municipal corporation may issue bonds in payment of its debts, or to procure money to pay them, without authority from the legislature : See Com. ex rel. Bair & Shenk v. City of Williamsport, supra. This was all that the city of Pittsburgh was attempting to do in this case. It was doubtless thought the Acts of Assembly were necessary; the city possessed all the power needed outside of them.

I have no desire to criticise the views of the majority of my brethren, for whom I entertain profound respect. It is enough to say that the somewhat labored attempt to show that the bonds already issued are good because not issued in excess of power, while the issue of the remainder is enjoined because it would be in excess of power, sufficiently indicates the strain of the case. And since the question of fraud has been decided in favor of the appellants I am unable to see any foundation for the court to rest its decree upon.

My brothers Green and Clark desire me to say that they concur in what I have said.

I would reverse the decree of the court below.

*220CASES IN THE SUPREME COURT OF PENNSYLVANIA. EASTERN DISTRICT — PHILADELPHIA, 1885.