Swartz v. Borough of Carlisle

• Decision Date: 14 October 1912
• Docket Number: 260
• Citation: 237 Pa. 473,85 A. 847
• Parties: Swartz, Appellant, v. Carlisle Borough
• Court: Pennsylvania Supreme Court

85 A. 847

237 Pa. 473

Swartz, Appellant, v. Carlisle Borough

No. 260

Supreme Court of Pennsylvania

October 14, 1912

Argued April 22, 1912

Appeal, No. 260, Jan. T., 1912, by plaintiff, from decree of C.P. Cumberland Co., Jan. T., 1911, No. 1, dismissing bill in equity in case of G. Wilson Swartz v. Carlisle Borough. Affirmed.

Bill in equity to enjoin the issuing of municipal bonds. Before SADLER, P.J.

The case turned upon the constitutionality of the Act of June 19 1911, P.L. 1044, the material provisions of which are quoted in the opinion of the Supreme Court.

The court entered a decree dismissing the bill.

Error assigned was the decree of the court.

Decree affirmed at the cost of appellant.

E. M Biddle, Jr., with him Merrill F. Hummel, for appellant. -- A statute which is repugnant to the Constitution is void no matter whether on its face it appears to be curative or not: Vanhorne v. Dorrance, 2 Dallas 304; Sharpless v. Phila., 21 Pa. 147; Rainsburg Borough v. Fyan, 127 Pa. 74.

The Act of 1911 is special legislation: Com. v. Casey, 231 Pa. 170; Com. v. Carey, 2 Pa. C.C.R. 293; Frost v. Cherry, 122 Pa. 417; Sample v. Pittsburgh, 212 Pa. 533; Morrison v. Bachert, 112 Pa. 322; Anderson v. Hill, 54 Mich. 477 (20 N.W. 549); Bay City v. State Treasurer, 23 Mich. 499.

The court in holding that the Act of 1911 cured all defects complained of by plaintiff, violated the rights of appellant to have his case determined by the law existing at the time the action was brought and was not in due course of law: Kay v. P.R.R. Co., 65 Pa. 269; Craig v. Kline, 65 Pa. 399.

A right of action is a vested right within the constitutional provision: Lewis v. P.R.R. Company, 220 Pa. 317; Kay v. P.R.R. Company, 65 Pa. 269.

The Constitution clearly provides, that the debt shall only be increased by an election according to law. An election which requires a legislative enactment to perpetuate its apparent object falls short of the basic mandate of the organic law of the land and is void.

S. B. Sadler, with him A. R. Rupley, Borough Solicitor, for appellee. -- The courts have frequently passed upon the validity of retroactive curative acts and unless the legislation was found to be expressly prohibited by the Constitution, or was in violation of a contract right their validity has been sustained: New Brighton Borough v. Biddell, 14 Pa. Superior Ct., 207, affirmed in 201 Pa. 96; Allegheny v. Stewart, 43 Pa.Super. 534; Whitney v. Pittsburgh, 147 Pa. 351; Donley v. Pittsburgh, 147 Pa. 348; Schenley v. Com., 36 Pa. 29; Com. v. Marshall, 69 Pa. 328; Hewitt's App., 88 Pa. 55; Weister v. Hade, 52 Pa. 474; Grim v. Weissenberg School District, 57 Pa. 433; Journeay v. Gibson, 56 Pa. 57; Tate v. Stooltzfoos, 16 S. & R. 35; Philadelphia v. Hey, 20 Pa.Super. 480; Underwood v. Lilly, 10 S. & R. 97; Lane v. Nelson, 79 Pa. 407; Hepburn v. Curts, 7 Watts 300; Bleakney v. F. & M. Bank, 17 S. & R. 64.

The cases cited by appellant where at all applicable are those in which vested property rights were annulled, as in Lewis v. P.R.R. Co., 220 Pa. 317; Kay v. P.R.R. Co., 65 Pa. 269; Menges v. Dentler, 33 Pa. 495.

Where the law-making body can enact legislation it has the power to change the conditions and cure the defects: Rebman v. School District Borough of Crafton Boro., 201 Pa. 437.

Before BROWN, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN:

At a special election held for the purpose, a majority of the electors voted in favor of increasing the indebtedness of the appellee borough for the purpose of constructing a main sewer, installing a disposal plant, and providing for proper drainage. The returns represented the will of a majority of the electors as expressed by their votes at the election. There is no charge of fraud, or of unfair methods in the conduct of the election, nor is it asserted that a majority of the voters did not favor the increase of indebtedness for the purposes stated. It is urged, however, that the election so held was illegal because certain statutory requirements were not observed in holding the same, and that the election itself, and all subsequent proceedings, should be declared void in law by reason of these defects. This bill was filed by a resident tax payer for the purpose of enjoining the borough and its officers from issuing bonds for the purposes stated, and from carrying out the provisions of the ordinance providing for the increase of indebtedness. An amended bill was filed and some questions are raised as to whether the amendment was proper, but in the view we take of the case it is not necessary to pass upon these questions although in some respects they may have substantial merit. Without reference to the pleadings, the real question in controversy is the effect to be given the validating Act of June 19, 1911, P.L. 1044. The matters complained of are as follows: that the ballots were not properly endorsed and certified by the county commissioners; that the borough council had not by separate vote expressed its intention or desire to increase the debt; that the vote was not counted by the court; and that the ballot boxes were not furnished by the county commissioners and deposited after the election with a justice of the peace. There can be no doubt that all of these defects, if they be deemed material, except the last, were intended to be cured by the Act of 1911. If this act is a valid exercise of legislative power, it necessarily follows that the learned court below took a proper view of the case, and that the decree entered there should be affirmed here. The act provides that all elections heretofore held by any county, city, borough, township, school district, or other municipality, for the purpose of voting for or against an increase of indebtedness under the Act of April 20, 1874, P.L. 65, and its amendments, where the majority of the votes cast at such election was in favor of such increase, "be and the same are hereby ratified, confirmed, and made valid, notwithstanding the authorities of such county, city, borough, township, school district, or incorporated district, did not, by separate and independent action prior to the ordinance or vote in pursuance of which notice of the election was given to the electors, signify their desire for such increase of indebtedness, or where the ballots were not certified or signed by the county commissioners, or where full, complete and proper return of the votes was not made to the proper court, or counted by the court, and, notwithstanding any defect or informality in the manner of giving notice of such election, all bonds issued or to be issued in pursuance of every such election are hereby made valid, binding obligations of every such county, city, borough, township, school district, or incorporated district." The act is general in its terms and applies to every county, city, borough, township, or other municipal division of the commonwealth, where the conditions exist upon which its provisions are intended to become operative. It is not restricted to any particular county, or city, or borough, or township, or other municipal division, and is therefore a general act as contradistinguished from a local law. It deals with the general subject of the increase of municipal indebtedness and cannot be regarded as special legislation in a legal sense in so far at least as the subject matter of the act is involved. It is argued, however, with much force and ability, that the Act of 1911 violates Article IX, Section 8, of the Constitution, which provides that a borough cannot increase its indebtedness to an amount exceeding two per centum of the assessed valuation of property located therein, "without the assent of the electors thereof at a public election in such manner as shall be provided by law," and that failure to observe the requirements of existing election laws renders the election invalid, and that these defects cannot be cured by subsequent legislation. In the case at bar there was an assent of the electors at an election held for the express purpose of giving the voters an opportunity of expressing their will upon the question of increasing the borough indebtedness, and in this respect there was a compliance with the constitutional mandate. It is true some of the statutory requirements relating to the manner of holding the election were not observed, but these were all matters of detail relating to legislative and not to constitutional provisions. The Constitution gave the legislature the power to prescribe the manner in which such elections shall be held, and the legislature from time to time has exercised this power by changing old methods and prescribing new ones. The form of the ballot, the method of counting the vote, the requirements as to notice of intention, custody of the ballot boxes, and all other details connected with the holding of the election, are clearly within the scope of legislative power. It has been decided over and over again that the legislature may by subsequent act, validate and confirm previous acts of a municipal corporation, which would otherwise be invalid. 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: Weister v. Hade, 52 Pa. 474; Grim v. School District, 57 Pa. 433; Hawkins v. Com., 76 Pa. 15. The Act of 1911 does not relate to penal matters, is not in contravention of contractual rights, and nothing attempted to be done by this act is expressly forbidden by the Constitution. It would seem to clearly follow that the legislature acted within the scope of its power in passing the retroactive curative act in question. Defective acknowledgments have...