25 A.2d 831 | Pa. Super. Ct. | 1941
Argued November 11, 1941. The appeals in these two cases, similar on their facts, question the propriety of the entry of judgments in favor of the borough. The judgments were entered on the pleadings, for want of sufficient affidavits of defense, in proceedings by scire facias on municipal liens.
Plaintiff borough on April 11, 1932, by ordinance, provided for the improvement of a number of its streets. We are concerned with the improvement only insofar as it relates to curbing constructed along two pieces of land owned by defendant. The ordinance in general is open to the criticism that it provides that the streets be "properly curbed" without specification as to the kind of improvement or manner of construction, except as to grades which were established by a prior ordinance. To supply the basis for a local assessment an ordinance should be sufficient, reasonably certain and definite as to the character, location and description of the contemplated improvement so that, from it, an intelligent estimate can be made of the nature and extent of the improvement. Elliott, Roads Streets, 3d Ed. § 618.
But the ordinance as to the curbing is open to a more serious objection. Section 3 provides: "That the proper officers be and they are hereby authorized to enter into a contract or contracts in the name of the Borough for the necessary material and equipment to be used in the improvement of the said streets, the work of improving said borough streets to be done under the supervision of the Street Committee of the Town Council, Borough Engineer and Supervisor, who shall do the work of improving said streets with the Borough's own force of men and equipment, after receiving the best bids on material, etc., to be used in making said improvements." *559 The ordinance provides for the construction of curbing as follows: "Section 6. That whatever curbing is necessary to make a complete job, in the opinion of the Borough Engineer andSupervisor, shall be likewise constructed and the entire cost thereof assessed against the abutting property according to the foot-front rule." (Italics added.)
From a reading of these provisions of the ordinance, it is apparent that as to the curbing, the borough delegated all of its municipal power to the street committee and to the borough engineer and supervisor. The latter alone, in the exercise of the discretion delegated to him, determined that curbing should be placed along defendant's land and upon his decision the borough seeks to charge defendant with two-thirds of the cost thereof. By section 3 of the ordinance the "proper officers" were empowered to purchase the necessary materials in the name of the borough. It was the street committee which determined what materials should be used and the materials were bought by the borough on bids received by that committee. This committee was directed to "do the work of improving said streets with the Borough's own force of men." It may be that the ordinance, in providing for the macadam pavement, sufficiently described that part of the improvement and properly entrusted the street committee and the engineer with the performance of the work. McKnight v. City ofPittsburgh,
"The general rule is that a municipal legislature cannot delegate its powers, and this rule requires that the body having the authority to order the improvement shall itself designate and describe the improvement": Elliott, Roads Streets, § 619. More specifically, the ordinance ignores the prohibition of Art. III, § 20, of the state constitution which provides: "The General Assembly shall not delegate to any special commission, . . . . . . any power to make, supervise or interfere with any municipal improvement . . . . . . or to levy taxes or perform any municipal function whatever." These are not cases where only the performance of the work is assigned to ministerial agents of the municipality; the borough here delegated both the power to decide what was to be done as well as how it was to be done.
Municipal corporations are but agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. Com. v. Moir,
If the above is a right conclusion it should be unnecessary to consider the effect of the validating Acts of April 18, 1935, P.L. 28, and June 2, 1937, P.L. 1326, 53 P. S. § 2066, 2132 note, upon which the borough places *561
some reliance. "It is settled law in Pennsylvania that the legislature has the power to legislate retrospectively on all matters, not penal, nor in violation of contracts, not expressly forbidden by the Constitution": Malicks' Petition,
Judgments reversed with a procedendo in accordance herewith. *562