Barr v. City of Philadelphia

• Decision Date: 15 May 1899
• Docket Number: 3
• Citation: Barr v. City of Philadelphia, 191 Pa. 438, 43 A. 335 (Pa. 1899)
• Parties: Robert J. Barr and Howard R. Yocum, Appellants, v. the City of Philadelphia, Charles F. Warwick, Mayor of said City, and John M. Walton, City Controller
• Court: Pennsylvania Supreme Court

43 A. 335

Robert J. Barr and Howard R. Yocum, Appellants, v. the City of Philadelphia, Charles F. Warwick, Mayor of said City, and John M. Walton, City Controller

191 Pa. 438

No. 3

Supreme Court of Pennsylvania

May 15, 1899

Argued March 22, 1899[Copyrighted Material Omitted][Copyrighted Material Omitted]

Appeal, No. 3, Jan. T., 1899, by plaintiff, from decree of C.P. No. 2, Phila.Co., Sept. T., 1898, No. 558, on bill in equity.Affirmed.

Bill in equity for an injunction.

The facts appear by the opinion of PENNYPACKER, P.J., which was as follows:

By ordinance of councils of the city of Philadelphia, approved September 27, 1897, it was ordained "that the debt of the said city should be increased in the sum of $12,200,000 for the following purposes," specifying eighteen purposes and the amounts needed for each, and "that for the purpose of obtaining the assent of the electors to the increase of indebtedness . . . an election shall be held in pursuance of the act of June 9, 1891, . . . on the Tuesday next following the first Monday of November, 1897; that notice of said election shall be given by weekly advertisement in three newspapers of the said city at least thirty days prior to the general election, and said notice shall contain a statement of the last assessed valuation of the taxable property in the said city, amount of the existing debt, amount and percentage of the proposed increase, and the purposes for which the indebtedness is to be increased."On Novber 2, 1897, the day of the general election, there were a majority of votes cast in favor of "the general proposition to increase the indebtedness of the city in the sum of $12,200,000."On June 7, 1898, by ordinance then approved, councils directed "that the mayor of the city of Philadelphia be and he is hereby authorized to borrow in such proportions as in his judgment the best interests of the city demand, from the highest bidder or bidders, at not less than par, on the faith and credit of the city of Philadelphia, a sum or sums which in the aggregate shall not exceed $11,200,000, for the following purposes," specifying the same purposes and amounts as those of the ordinance of September 27, 1897, except an omitted item of "$1,000,000 for improvement to gas works."The ordinance further directed that "interest on the said loan at a rate not exceeding 3 1/2 per centum per annum, shall be paid by the city of Philadelphia half yearly on the first day of the months of January and July, at the office of the fiscal agency of the city of Philadelphia."

The complainants are citizens and taxpayers.They aver in their bill that the mayor and city controller are about to borrow money on the faith and credit of the city, in reliance upon the authority of these ordinances, and ask for an injunction restraining the defendants from borrowing the said sum or any part thereof.Several grounds are alleged by them by reason of which they contend that the election and the ordinances are invalid.In the first place, they contend that "the said election was not lawfully held, because there was no separate vote upon the several propositions for the increase of indebtedness of the city contained in said ordinance of September 27, 1897, but the electors were compelled by the manner of holding the election either to vote in favor of the whole group of propositions submitted to the people by the said ordinance or to vote against all of said propositions."No ballots or ballot boxes were provided at the election to enable the voters to vote separately upon each item for which it was proposed to increase the debt, but the ballots were indorsed on the outside "Increase the debt," and on the inside there were printed the words "No increase of debt" and "Debt may be increased," respectively, the entire amount of the increase, to wit: $12,200,000, and the purposes.The question then arises whether it is enough if the voters shall vote for the increase of the debt, knowing the objects to which the money is to be applied, or whether it is necessary that the voters shall vote for or against each and every one of the items set apart for the particular purposes sought to be accomplished and together making up the whole increase.Section 8 of article 9 of the constitution provides that the debt of a city shall not exceed seven per centum of the assessed value of the taxable property, and that no municipality shall "incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property without the assent of the electors thereof at a public election, in such manner as shall be provided by law."The Act of June 9, 1891, P.L. 252, sec. 3, provides that the indebtedness of a city may be increased to an amount exceeding two per centum and not exceeding seven per centum upon the last preceding assessed valuation of the taxable property, "with the assent to the electors thereof duly obtained at a public election" on a day fixed "for the purpose of obtaining the assent of the electors thereof to such increase of indebtedness.Said notice (the notice prescribed by the act) shall contain a statement of the amount of the last assessed valuation, of the amount of the existing debt, of the amount and percentage of the proposed increase, and for the purposes for which the indebtedness is to be increased.Such election shall be held at the place, time and under the same regulations as provided by law for the holding of municipal elections, and it shall be the duty of the inspectors and judges of such elections to receive tickets, either written or printed, from electors . . . labeled on the outside 'Increase the debt,' and containing on the inside the words 'No increase of debt,' or 'Debt may be increased,' also briefly the purpose and amount of increase, and to deposit said tickets in a box provided for that purpose."

It is reasonably clear from the language, both of the constitution and of the act of 1891, that it was not the intention that the electors should determine the purposes to which the moneys are to be applied.The electors are to be given notice of the purposes to which the corporate authorities intend to apply them.If it were the intention of the legislature to have the electors determine the purpose, there would have been a direction not to describe it briefly in their ballots, but clearly, precisely and exactly.The assent of the electors is to be given "to such increase of indebtedness," and nowhere is it indicated that they are to assent to or dissent from the purpose or purposes for which the moneys are to be utilized.The ballots are so worded that the electors vote for an increase or no increase of the debt, and the brief description of the purpose is intended for their information, so that they may vote upon this question intelligently.The purposes are nearly upon the same plane, with the amount of the last assessed valuation and the amount of the existing debt, of which the electors are to have notice because it is important information for them in determining whether or not it would be well to increase the debt.If the electors were called upon to decide upon the merits of the different objects for which the corporate authorities purposed to use the moneys, there would be room for the contention that "several propositions" were submitted at the same time, but there is only the one object presented to them, to wit: the increase of the debt.It has been held, where a municipality has legislative authority to aid railroads by a subscription to the stock, upon first securing the assent of the electors, that to submit the question of aiding two or more railroads at the same time would lead to log rolling and be invalid: McMillan v. Boyles, 3 Iowa, 320;Supervisors v. Railroad Co.,21 Ill. 338;Williams v. People,132 Ill. 574.

These cases are decided upon the ground that the aiding of each railroad is a separate and distinct proposition.The same reasons were given in Gray v. Mount,45 Iowa 591 where the question submitted was the appropriation of moneys from the sale of swamp lands to the erection of a courthouse at Guthrie Center and a county high school in Panora, and the people voted not only for the appropriation, but for the objects, which the court held to be the "essence of the proposition."In McBryde v. City of Montesano,7 Wash. 69, the court held that the blending in one submission of a proposition to borrow money to fund old debts and another to borrow money for future indebtedness was illegal.But in that case, where the purposes of the future debt were to secure $1,500 for a fire apparatus and $3,500 for the erection of a city hall and jail, the court treated these two items as constituting but a single proposition.That case was followed in our own state in Bloomsburg Town Election, 4 Dist. Rep. 671, where it was held illegal to blend the submission of the question of increasing the debt under our statutes for the purpose of funding an old debt and the further purpose of creating a new one.The court was much influenced by the view it held that the funding of an old debt is not within the terms of the act of 1874 and of the act of 1891.In Millvale Borough, 162 Pa. 374, the question of increasing the borough indebtedness was submitted to the electors, and the purposes were stated to be the public improvement of the streets and the erection or purchase of waterworks and electric light plant.Here were two different objects to which the moneys were to be applied.The Supreme Court, in reviewing the case upon appeal, condemned certain conduct of the corporate authorities with respect to the loan, and expressed regret "that we can discover no way of arresting such proceedings."We think, therefore, both upon principle and...