Commonwealth v. Gingrich

21 Pa. Super. 286 | Pa. Super. Ct. | 1902

Opinion by

Rice, P. J.,

Whether the corporate officers of a city, of the third class have authority to appropriate a portion of the city funds for the purpose of defraying the expenses — such as for hall rent, heating and lighting the same and janitor’s services — necessarily incident to the holding therein of a convention, composed of delegates from all cities of the third class, and called for the purpose of advancing the various interests of such cities, promoting remedial legislation therefor, and for the discussion of, and interchange of views upon, any and all topics relating to the welfare and conduct of the same, — which appears, to be the object of the voluntary association known as “ The League of Cities of the Third Class in Pennsylvania,” — is a question upon which we express no opinion. We make this remark lest it might be supposed that in affirming the judgment, in which, apparently by consent, the controller was commanded to approve so much of the bill as was for such expenses, we intended to decide the question above stated in the affirmative. No appeal was taken from that part of the judgment. The appeal is from the refusal of the court to award a peremptory mandamus to compel the controller to approve such part of the bills and warrants as, according to the averment of the answer, was “ for expenses incurred for refreshments and entertainment of guests of the city,” — evidently meaning the delegates to the convention, — “and invited residents of the city and for the expense of giving them a fish dinner on the peninsula: ” which expenses, according to the further averment of the answer, were, in the judgment of the controller, “ unreasonable and injudicious, and were unnecessary and improper to a correct reception and entertainment of said delegates.” As the case came up on demurrer to the answer, the appellants, in order to succeed, must be able to maintain two propositions: first, that the corporate officers of cities of the third class have authority to contract on behalf of the city for the purpose stated; second, that so far as the propriety or the necessity of the expenditure of city money for such purpose is concerned, the controller has no right to set up his judgment and discretion against those of the mayor and councils. If the first proposition cannot be maintained, the second need not be considered.

Wé are not disposed to enter into a discussion of the question as to the power of a city, as a city, to become a member of an association or league formed for the purpose, amongst other things, of promoting remedial legislation. For, we think it self-evident that it cannot, by assuming the obligations of membership in such league or association, acquire the power, or enlarge the powers before possessed, to expend the city’s money for purely social or hospitable purposes. Nor can it be maintained that such power is inherent in every municipal corporation, or in every city. If not conferred by express words, it must be shown that it is necessarily or fairly implied in, or incident to, the powers expressly granted. The fact that the corporate officers of the city are not forbidden to exercise it is not sufficient to prevent the interference of the courts. If the city of Erie has the power to expend money for such purpose, it is derived under article 5, section 3, pi. 46 of the Act of May 23, 1889, P. L. 277. But in the absence of proof or averment of any prior usage in cities of the third class, which can be called in as an aid to the construction of that section, we fail to see upon what principle it can be declared that the legislature had in view the giving of banquets to delegates to conventions held in such cities, to which some of the residents are invited, when it conferred the power to make such ordinances, by-laws, rules and regulations “ as may be expedient or necessary .... for the proper management, care and control of the city and its finances, and the maintenance of the peace, good government and welfare of the city, and its trade, commerce and manufactures.”

The powers here granted are very broad, but if the grant is to be construed so as to authorize such expenditures as were shown by the bills which the controller was asked to approve, it would be difficult to point out the limits beyond which the corporate officers cannot go in the expenditure of money for social pleasures. The expenditures have no relation to any of the objects expressly mentioned in the section unless it be the welfare of the city, but we fail to see how that is promoted, or how it profits the great body of citizens, that a few persons should éat and drink at their cost. The case of Commonwealth v. Pittsburg, 183 Pa. 202, is plainly distinguishable from the case at bar, and in the case of Tatham v. Philadelphia, 2 W. N. C. 564, a principle in the construction of statutes was relied on which cannot be invoked here. The general rule established by the great weight of authority is that a public corporation cannot make a contract to provide an entertainment for its citizens or guests: 1 Dillon’s Municipal Corporations (4th ed.), sec. 149; 15 Am. & Eng. Ency of Law (1st ed.), p. 1051, and cases there cited; Bergner v. Harrisburg, 1 Pearson, 291. See also, as bearing indirectly upon the question as it is presented here, Cumberland County v. Poor Directors, 7 Pa. Superior Ct. 614, and McKean County v. Young et al., 11 Pa. Superior Ct. 481. Speaking of the rule laid down by Judge Dillon, Judge Hare said in Tatham v. Philadelphia, supra: “But neither the general rule nor any of the precedents cited are decisive of the present ease. Regard must be had to the 'terms of the municipal charter and the usage under it, if that usage has acquired the force of an established construction.” In another part of his opinion he said: “ It is well established that when the scope and interpretation of a statute have been defined by usage, and the statute is re-enacted, the usage is enacted with it, and henceforth has the weight of legislative sanction.” In distinguishing that case from the present, the learned judge below well says: “ But what may, by the force of usage, have become the settled law in Philadelphia, a city of the first class, cannot for that reason determine the law as to similar matters in the city of Erie or in cities of the third class generally, where no such usage is shown or averred to exist, and of which we have no knowledge.” We are all of opinion that the controller did not exceed the discretion vested in him in refusing to approve the bills and that he would have failed in his duty if he had given them his sanction.

Judgment affirmed.