395 Pa. 348 | Pa. | 1959
Lead Opinion
Opinion by
This taxpayers’ suit was brought to restrain the Borough of Ephrata and the individual members of the borough council from issuing $350,000 of non-debt revenue bonds, complaining if the bonds were issued a debt would be created in violation of the debt limitation
It was stipulated that the gross revenues from tbe electric system, which was to be improved with the proceeds of the bond issue were sufficient to pay the operating expenses, principal and interest required by the proposed bonds, thereby providing a complete self-sustaining bond issue. It was further stipulated that the borough does not have sufficient councilmanic and electorial borrowing capacity under the constitutional provision to borrow the money necessary to pay for the proposed improvements.
The Borough of Ephrata passed Ordinance No. 725 which authorized the issuance of bonds pursuant to the borough code permitting non-debt revenue bonds to be issued for capital improvements to certain public service facilities.
The ordinance and the-bonds proposed, to be issued, among other things, provided that the bonds were payable solely out of electric revenues and that no taxes will be levied for .the payment of the bonds or the interest that might accrue,, and that no property of the borough may be taken to satisfy either the principal or interest requirements. .We must decide whether the issuance of these bonds,.. which are- issued to provide funds for improvements to. an existing electric system and which are payable both as to interest and principal solely out of electric revenues and for which payment no taxes will.be levied, or borough property taken, create a debt within the meaning of Article IX, §8 of the Constitution of Pennsylvania...
While it is true that in Lesser v. Warren Borough, 237 Pa. 501, 85 Atl. 839 (1912) we held that revenue bonds issued by the borough for the acquisition of a water company created a debt in .violation .of Article IX, §8 of the Constitution, nevertheless,, there the borough bonds were secured not only by the water works’ revenue and income, but also by a mortgage liened against the physical property of the water works itself. Even though there' was no “other liability whatsoever” on the part, of the borough w'e held' that a 'debt was created because, on default in the payment of the bonds
For the past twenty-five years we have observed all types of municipalities finance innumerable public improvements through the facility of the “Authority.” These self-liquidating projects were developed outside of the framework of Article IX, §8 of the Constitution and imposed no obligation or debt upon the municipality. Surely a municipality may do directly what it has done indirectly through the facility of an “Authority” without doing violence to Article IX, §8.
A substantial number of our sister jurisdictions having provisions similar to Article IX, §8 of our own Constitution have come to the conclusion which we now adopt,
Appellants next attack the escrow agreement as an unlawful delegation of authority in violation of Article III, §20 of our Constitution. The escrow agent, The Farner’s National Bank of Ephrata, a private corporation, is vested, under the agreement, with authority to collect all the revenues of the electric system and act as a paying agent under predetermined arrangements specifically detailed therein.
Article III, §20 prohibits delegation to any private corporation of “any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.” This provision has been discussed in a number of cases but Lighton v. Abington Township, 336 Pa. 345, 9 A. 2d 609 (1939) closely resembles the problem in the instant case. There, a taxpayers’ suit was successfully instituted to enjoin the township from proceeding to float a bond issue which contained a trust indenture wherein the trustee, a private corporation, was appointed in the general role of paying agent with power to operate the municipal improvement in event of default. This Court held that the plain language of the Constitution prohibited the township from delegating any authority to the private trustee whether the municipal property was used in a governmental or proprietary capacity.
The escrow agreement here, while not containing the extensive grant of power found in the Lighton case, nevertheless is contrary to the plain language of the Constitution. It can scarcely be maintained that the agreement here did not delegate to the private corpora
Finally, appellants dispute the provision in Ordinance No. 725 providing for a private sale of the non-debt revenue bonds at the option of borough' council. They maintain' that the non-debt revenue bonds should be-first offered'at public sale (before a private sale is authorized )■• in the same-manner provided for general obligation bonds in the Act of June 25, 1941, P.L. 159, 53 P.S. §6212. The act relating to the issuance and sale of-non-debt'revenue bonds
• Order modified and affirmed.
The Pennsylvania Constitution, Art. IX, §8, provides that: “The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as provided herein, and in ‘ section fifteen of this article, shall never exceed seven (7) per centum upon the assessed value of the taxable property therein, nor shall any such county, municipality or district incur any debt, or increase its indebtedness to an amount exceeding two (2) per centum upon such assessed valuation of property, without the consent of the electors thereof at a public election in such manner as shall be provided, by law.”
If the Borough of Ephratá’s bond issue is within the debt limitation provision, then-the’councilmanic borrowing capacity will be exceeded by $338,924 and the total electoral borrowing capacity by :$’191,734. '
Act of April 3, 1956, P. L. 1373, 53 P.S. §47495, which provides: “(a) Eor the purpose of financing the cost and expense or its share of the cost and .expense of capital improvements by altering, improving or enlarging . . . (iii) its electric light or power plant or distribution system, . . . any borough owning any such plant or facility may ’ issue non-debt revenue bonds secured solely
Act of June 25, 1941, P. L. 159, art. VI, §§620-633, 53 P.S. §§6620-6633.
The various eases have been collected and annotated in 72 A.L.R. 688 (1931), 96 A.L.R. 1385 (1935), and 146 A.L.R. 328 (1943). See also McQuillin, Municipal Corporations, §43.34 (3d ed. 1950).
Not being a debt, Art. 9, §10 of the Constitution of Pennsylvania does not apply.
Act of June 25, 1941, P. L. 159, 53 P.S. §§6620-23.
Act of June 25, 1941, P. L. 159, 53 P.S. §6210.
Concurrence Opinion
In my judgment it was not only wise but necessary for tbe Borough of Ephrata to make a public offering of these bonds.
