Millvale Borough

162 Pa. 374 | Pa. | 1894

Opinion by

Mr. Justice Green,

A careful examination of the complaint in this case and of the answer and the affidavits submitted on both sides, satisfies us that the learned court helow was right in the conclusions reached in the opinion filed. We can scarcely doubt that the proceedings by the burgess and councils, having in view the erection of new works, were animated and conducted with an unseemly desire to injure the Bennett Water Company, to destroy the value of its franchises, to disregard the terms of the solemn contract made by the borough with that company and with an entire willingness to evade the teachings of ordinary morality, business integrity and common honesty. Throughout the entire record there cannot be found the least evidence of any fault on the part of the water company either in the structure of their works or in the efficiency of their service. When, at the meeting of councils on August 36, 1893, an envelope respectfully addressed to the burgess and town council of the borough of Millvale was received by that body and a motion was made to open and read it, which the chairman, Eades, pronounced to be out of order upon a mere subterfuge, a deliberate insult was added to the other acts of oppression and injustice of which the burgess and councils had been guilty. The envelope was not opened until September 6th following, a period of twenty-one days, and when it was read it was found to contain a proposition from the water company to sell their works for $61,500. At the same meeting of August 16th, the councils with undue haste voted to award the contract for the new works to Chanley Bros. & Co., who were declared to be the lowest and best bidders, and when the contract was reduced to writing and executed the price to be paid was $63,500 exclusive of the cost of necessary land to be obtained. It is not difficult to draw the inference that the proposition of the Bennett Water Company was refused a hearing because it was feared that it might contain a lower bid than that at which the contract was awarded.

In such circumstances as these and others of a kindred character, it is much to be regretted that we can discover no way of arresting such proceedings. The difficulty arises from the character of the defendant corporation. It is a municipal body, clothed with the power of legislation to a limited extent, and, when within the limits of its authority, its acts are obligatory, not only upon the municipal body in its organized capacity, but upon the citizens who dwell within its territorial confines.

In the very important contract which was made between it- and the water company there was no restriction placed upon its right to erect waterworks in the future. That is a right given to all such bodies by law and they may exercise it, no matter at what cost to private companies whose franchises are held subject to such right. This subject was fully considered by this court in the case of Lehigh Water Company’s Appeal, 102 Pa. 515, where we held that the right of a borough to erect waterworks was entirely independent of the right of private corporations to erect similar works, and that it was a matter of no consequence that such erection injured private franchises of the same character.

It is claimed for the appellants in this case that in incurring a debt of $80,000 in addition to a pre-existing debt of $28,000 and upwards, with a tax levy of ten mills for ordinary purposes and an additional tax of three and three eighths mills which would be necessary to pay the interest and principal of the new debt, the legal limit of possible indebtedness would be exceeded. The seven per cent limit would not be exceeded; this is admitted. The special, local act of March 12, 1873, P. L. 263, was simply a grant of power to levy a tax of ten mills for general borough purposes. There is nothing in that act to prevent the levying of an increased tax to pay the interest or principal of a debt which may lawfully be created in the future. The power to erect waterworks necessarily includes the power to raise the money to pay for them, and as increased indebtedness within the limit of seven per cent may be created under the constitution of 1874, we do not understand how such increase can be regarded as invalidated by eithei the constitutional limit of seven per cent, or by the act of April 20, 1874, P. L. 65. The very object of the act of April 20th was to enable any county, city, borough or other municipality to increase the amount of its existing indebtedness. The second section of the act enables the municipal authorities to increase the debt to the extent of two per cent of the assessed value of the taxable property therein, and the third section confers the power to increase beyond two per cent but not exceeding a total indebtedness of seven per cent, by means of an election conducted with certain prescribed formalities. The latter method was pursued in this case and •there are no objections made to the validity of the increase on the ground that any of the prescribed formalities were not observed. It is contended for the appellant that an absolute limit of the taxing power of the borough was fixed by the act of March 12, 1873, supra, at ten mills upon the assessed valuation of the property of the borough, and as this act was not repealed by the act of April 20, 1874, that limitation still remains and therefore avoids the present proposed increase. We cannot possibly assent to such contention. We regard this very proposition as denied by the decision of this court in the Appeal of the City of Wilkes-Barre, 116 Pa. 246, where the same contention was made. We there went further than is required in this case and held that the taxes authorized to be levied and collected might be applied to the payment of indebtedness contracted, as well previously, as subsequently, to the constitution of 1874. That is not the case here where the only allegation is that an annual assessment of three and two thirds mills tax will be necessary to pay eight per cent of the increased debt of $80,000. The answer denies that it will be necessary to levy so large a tax as that for that purpose, but even if it were, it would not be an excessive exertion of the-taxing power of the borough. In order that -this power may be exercised it is not at all necessary that the act of March 12, 1873, authorizing annual taxation at the rate of ten mills should be repealed. The constitution of 1874, and the subsequent legislation, confer additional power to increase municipal indebtedness and to levy additional taxation, without any necessity for repealing pre-existing limitations of the' tax rate for ordinary municipal purposes.

In regard to the allegation that the voters were induced to vote in favor of the increase by means of misrepresentation, it is obvious that the judiciary department of the government can not go into such an inquiry. The voters are responsible for their votes and are necessarily supposed to inform themselves as to the reasons and motives for the votes which they decide to cast. To institute an inquiry for such reasons and motives in each individual ease would be a work of impossible performance, and of no value if accomplished. The actual vote cast is the only test of the action of the body of voters.

We cannot see our way clear to declare the contract for the erection of the works void for want of a previously enacted ordinance authorizing it to be made. It is true there should have been such an ordinance. The act of April 28, 1854, P. L. 513, requires that ordinances of the borough of Birmingham shall be recorded, but no penalty is provided for its violation except that such ordinances shall not go into effect until two weeks after they have been recorded, and this was held mandatory in the Appeal of the Borough of Verona, 108 Pa. 83. The act appears to be applicable to the borough of Millvale because the act of March 18, 1869, P. L. 422, confers all the rights, privileges, franchises, etc., of the borough of East Birmingham upon the borough of Millvale. But in Verona’s Appeal it was held that an act passed in 1873, validating the general plan of the borough, cured the defect arising from the want of record. And in Borough of Milford v. Milford Water Company, 23 W. N. 413, so much relied upon by appellant, it was held that, although the original ordinance was void because members of the water company were also members of the councils, another and similar ordinance might have been passed at any time subsequently, when the councils were purged of the presence of the members of the water company.

In the present case we are not referred to any provision of the law which makes the contract void for want of a previously enacted ordinance, where it was actually adopted and authorized by proper vote in the form of a resolution at a properly called meeting of the council. Such a resolution was passed at the meeting of August 16, 1893, and at the meeting of August 29, 1893, the contract in writing was produced and read with the specifications, and both were adopted. At the meeting of August 29th the contract was presented and the burgess and clerk were authorized to sign it and affix the corporate seal.

Afterwards, at the meeting of October 3, 1893, a formal or-' dinance was enacted directing the erection of waterworks according to the plans and specifications previously adopted, the sum of $65,000 arising from the loan of $80,000, which had been authorized by the previous popular vote, was appropriated for the construction of the works, and all previous contracts, acts or other things theretofore done in pursuance of any resolution or vote of the burgess and council in relation to the erection of waterworks were duly ratified and confirmed as fully as if done after the passage of the ordinance. This ordinance was duly published, recorded in the ordinance book of the borough, and signed by the burgess. We are unable to see why this ordinance does not accomplish the same effect as if it had been enacted before the contract was executed. Viewed as an ordinance, as of its own date, it was certainly effective to authorize all subsequent action in execution of the contract, and the greater part of the work was then yet to be done. The previous authorization of the contract by resolution was not void in itself. It was not affected by any badge of fraud, nor by any want of capacity in the members of council. The ordinance is subject really, only to the objection that it ought to have been enacted at a somewhat earlier date. But that circumstance does not avoid it, and it was still directly applicable to all subsequent work. As to previous work it is certainly good by way of ratification. Dillon on Municipal Corporations, sec. 385. “ A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the corporate powers, but not otherwise.”

There is no question that the erection of waterworks was entirely within the corporate powers of the borough. Upon the whole case we feel constrained to affirm the action of the learned court below.

Decree affirmed and appeal dismissed at the cost of the appellant.