260 Pa. 104 | Pa. | 1918
Opinion by
Plaintiff sues to recover on a note for $1,500 given by the supervisors of Ohio Township, Beaver County, for money loaned to the township for use in defraying expenses incident to the construction of township bridges and the repair of roads. The defense was that the township supervisors were without authority to borrow money for the purpose stated, and, if such power existed, the note was void because of noncompliance with the constitutional provision requiring a. tax levy sufficient to pay the debt and interest within thirty years, and for the further reason that proper notice of the meeting of the board of supervisors at which the loan was voted was not given. The trial judge submitted to the jury the various questions of fact raised and upon a verdict for plaintiff and judgment thereon, defendant appealed.
Section 6 of the Act of June 13, 1836, P. L. 555, requires that public roads “at all seasons be kept clear of all impediments to easy and convenient passing and traveling at the expense of the respective townships.” Section 31 of the same act imposes upon the supervisors the duty of erecting and maintaining sufficient bridges over creeks and gullies where necessary for the ease and safety of travelers. The duty imposed upon township supervisors is a mandatory one and failure to perform renders them subject to indictment. To raise funds they are given power to assess such taxes as may be necessary for that purpose not exceeding ten mills on the assessed valuation for county purposes: Act June 23,1897, P. L. 194. Aside from the taxing authority conferred upon them the financial resources of township supervisors are limited and they are without general power to borrow money on the credit of the township. An exception to this limitation, arising from necessity, exists however where, by reason of an extraordinary emergency or condition, such as a destructive flood, roads are rendered impassable and bridges destroyed and the current revenues from taxation are insufficient to defray the unusual expenses necessary for repairs and reconstruction. In such case, as their duty requires them to place bridges and roads in a reasonably safe condition for travel without delay, the only course open is to borrow the necessary funds, and power to do so is necessarily implied: Maneval v. Jackson Twp., 141 Pa. 426-435. The nature
The trial judge submitted the case to the jury on the theory that supervisors lacked general power to borrow money, but might do so in case of emergency and in absence of funds on hand to meet the unlooked for expense. The jury were instructed they must first find from the evidence existence of an emergency by reason of an extraordinary flood; second, insufficient funds in the treasury at the time to meet the expense incident to repairing the damage; and if they found the existence of an emergency and no funds on hand to meet the expense for necessary work of reconstruction, the supervisors under such conditions possessed authority to borrow money. The jury concluded, and their conclusion is fully sustained by the testimony, that an emergency existed and that the treasury was without funds to meet the exigency. This disposes of assignments one to five and seven to twelve inclusive.
The third question of fact submitted to the jury is covered by assignment of error fifteen, which avers the trial judge erred in refusing defendant’s request to charge that if they believed the testimony of Dawson, one of the members of the board, to the effect that the notice sent him by the secretary, of the special meeting held December 5th, set forth in substance that the purpose of the meeting was to raise money to pay on the contract for the bridges, such notice was not sufficient to inform him of a project or plan to borrow money to meet that indebtedness. The question of a sufficiency of the notice was submitted to the jury and they were instructed it was incumbent on plaintiff to satisfy them that the meeting was regularly called and held, and the members of the board received reasonable notice of the nature' of the business proposed to be transacted, and, in
Under assignments 13 and 14, appellant contends that, as the contract for the construction of the bridges called for the expenditure of approximately $8,500 and the assessed valuation of the taxable property was about $500,-000, the supervisors failed to comply with Article IX, Section 10 of the Constitution, requiring them “at or before” the time of incurring indebtedness to make provision for an annual tax sufficient to pay interest and principal within thirty years. As a matter of fact the contract was never fully executed but, after three bridges were substantially completed and a portion of the materials furnished for others, there arose a general public dispute over the subject of the township roads and bridges resulting in new supervisors subsequently serving notice on the contractor that they did not consider the contract binding on them, and that no payments would be made for work done and materials furnished, whereupon the contractor declined to further proceed with the work. So far as plaintiff’s claim on the note is concerned, the money was borrowed for the use of the township road to meet an urgent necessity, consequently a determination of the validity of the contract, between the township and the contractor which was never in fact fully carried out, becomes unnecessary. The regular annual levy was five and one-half mills, a sum in the opinion of the supervisors sufficient to meet the ordinary expenses of keeping, the roads and bridges of the township
The sixteenth to eighteenth assignments inclusive relate to the admission of testimony of the secretary of the board as to the intended application of the tax levies, the complaint being that its admission was in effect permitting the introduction of parol evidence to contradict the written minutes of the meeting offered in evidence without averment of omission therefrom by fraud, accident or mistake. The minutes offered merely state "An additional levy of four and a half mills road tax was levied” omitting the purpose of the levy. Parol evidence was consequently admissible to supply the deficiencies of the record of the meeting and explain or supplement them: Hamill v. Supreme Council of The Royal Arcanum, 152 Pa. 537; Rose v. Independent Chevra Kadisho, 215 Pa. 69.
In the assignments specifying errors in the charge, the requirement of Rule 27-that "the parts of the charge assigned as error shall be enclosed in brackets in the printed charge with the number of the assignment
The assignments of error are all overruled and the judgment affirmed.