McAnulty v. City of Pittsburgh

• Decision Date: 23 November 1925
• Docket Number: 5
• Citation: 284 Pa. 304,131 A. 263
• Parties: McAnulty v. City of Pittsburgh et al., Appellants
• Court: Pennsylvania Supreme Court

131 A. 263

284 Pa. 304

McAnulty v. City of Pittsburgh et al., Appellants

No. 5

Supreme Court of Pennsylvania

November 23, 1925

Argued October 9, 1925

Appeal, No. 5, March T., 1926, by defendants, from decree of C.P. Allegheny Co., Jan. T., 1925, No. 627, for plaintiff, in case of R. M. McAnulty v. City of Pittsburgh, William A Magee, Mayor, et al. Affirmed.

Taxpayer's bill to restrain awarding of municipal contracts. Before MACFARLANE, J.

The opinion of the Supreme Court states the case.

Decree for injunction. Defendants appealed.

Error assigned was, inter alia, decree, quoting bill of exceptions.

The decree of the court below is affirmed and the appeal is dismissed at the cost of appellants, without prejudice to the city's right to proceed with the improvement, when means have been legally provided for the purpose of meeting the probable excess cost over the amount of the loan authorized by the electors.

Thomas M. Benner, for appellant. -- The constitutional provisions and the enabling acts have been considered by the courts in many cases, and the courts have so endeavored to carry out the provisions of the Constitution that they shall be observed and yet not make it impossible for municipalities to function: Schuldice v. Pittsburgh, 251 Pa. 28; Addyston Pipe & Steel Co. v. Corry, 197 Pa. 41; Brooke v. Phila., 162 Pa. 123; Bruce v Pittsburgh, 166 Pa. 152; Pittston Twp. School Dist. v. School Dist., 275 Pa. 183; Raff v. Phila., 256 Pa. 312; Devlin v. Phila., 206 Pa. 518.

Charles A. O'Brien, with him James A. Wakefield, for appellee, cited: Troop v. Pittsburgh, 254 Pa. 173; Raff v. Phila., 256 Pa. 312; Mayor v. Boro., 209 Pa. 247.

Gifford K. Wright, of Alter, Wright & Barron, for Vang Construction Co., intervening appellant.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

Pursuant to an ordinance of the City of Pittsburgh, there was submitted to its electors, inter alia, the question of whether its indebtedness should be increased in the sum of $801,000, "For the city's share, of the cost, damages and expense (including engineering expenses) of opening . . . and improving . . . grading and regrading, curbing and recurbing, relaying sidewalks and laying and relaying sewers and drains, constructing and reconstructing retaining walls and street foundations and surfaces (including any and all such improvements as may be incidentally necessary to intersecting and adjacent streets) [of] . . . . Mount Washington Roadway, a new highway (in part along existing streets) to extend from Grandview Avenue at Merrimac Street eastwardly along the hillside to Manor Street, and thence to a point near the intersection of Sarah Street and South Seventh Street, including the construction of a highway bridge, and undergrade crossings."

The electors consented to the $801,000 increase of debt, the bonds therefor were issued and sold, and the city has expended or made contracts for the expenditure of $746,166.15, covering, however, but a fractional part of the work to be done. It was admitted, at the trial below, "that the cost of the entire improvement . . . will be at least $1,200,000 or approximately $400,000 in excess of the amount provided by the bond issue . . . and that said excess in amount will be charged against and borne by the City of Pittsburgh, except so far as it may be reduced by assessments against properties specially benefited by the improvement . . . that the city's share of the cost, damage, and expense . . . will be in excess of $801,000, the amount provided by the bond issue . . . [and] that there are no present funds in the treasury of the city available to pay any of the excess amounts," the city solicitor also then saying "that the excess of said amounts will be provided from the general city funds." Under these facts, the court below enjoined the execution of any additional contracts for the improvement, and the making of any further payments on those already executed; from this decree the defendants appeal.

Evidently the indebtedness of the city has been increased, since the present Constitution went into effect, in sums aggregating more than two per centum of the "assessed value of the taxable property therein," and more than that percentage thereof is still outstanding; hence it cannot further "increase its indebtedness . . . without the assent of the electors" at a public election (article IX, section 8, Constitution of Penna.; Pike County v. Rowland, 94 Pa. 238, 248; Pepper v. Phila., 181 Pa. 566; Bell v. Waynesboro Borough, 195 Pa. 299), unless it has in its treasury, or in good faith provides, by a special tax or out of its current revenues, a fund or funds, which will, with reasonable certainty, pay the excess not authorized by the electors: Appeal of the City of Erie, 91 Pa. 398, 403; Wade v. Oakmont Borough, 165 Pa. 479. It is a matter of no moment that the municipal authorities may have thought, when they submitted to the electors the question of increasing the debt for this improvement, that the sum specified would cover the entire expense thereby imposed on the city. When the contracts were made, they knew the $801,000 would be far from sufficient, and they had no right to then provide for an unlawful increase of the debt. The contractors knew this also, and hence have only themselves to blame if they have commenced performance; for the contracts must be declared void in their entirety: Borough of Millerstown v. Frederick, 114 Pa. 435.

Apparently the city officials think they may increase her debt to the extent of the $1,200,000, by the simple device of inserting in the ordinances authorizing the contracts already made, and declaring an intention to insert in each later ordinance, a provision "that the cost, damages and expenses [of the improvement] shall be assessed against and collected from the properties specially benefited," for the purpose of reimbursing the city for the moneys which the contracts require her to pay to the contractors. If the benefits are inadequate to pay the excess over the $801,000, of course it will have to be paid by the city, and, until then, will be a part of her outstanding indebtedness: Addyston Pipe and...