Pittsburg's Appeal , 79 Pa. 317 ( 1875 )

Mr. Justice Gokdón

'delivered the opinion of the court, January 6th 1876.

Under what authority does the city of Pittsburg assume to have acted in annexing the territories of an adjacent municipality to itself? This is an unusual and extraordinary assumption, and in order to justify it a warrant from the supreme power in the state must be shown. • *

No presumption can be invoked in favor of such a power, for it is strange and unique, and unless some legislative grant, containing it in terms, is produced, we must pronounce the exercise thereof, in the present oase, a mere usurpation.

For such warrant we are referred to the Act of May 10th 1871, by which it is provided, inter alia, “ That the city of Pittsburg shall be and is hereby authorized, to admit into said city, any borough, township, or portion of township, in the county of Allegheny, adjacent to said city, upon the following conditions: ‘ In case of any township, or portion thereof, the application shall be made by a petition of at least three-fifths of the taxable inhabitants of the township, >Éor portion thereof, desiring admission, and if only a portion of said township desires to be admitted, the petition shall set forth the boundaries,’ &c. The said petition shall, in either case, be accompanied by an affidavit of a reputable citizen of said district, that the persons signing the same are taxable inhabitants and constitute, as he verily believes, three-fifths of the taxable inhabitants of said district; and upon presentation of the ordinance or petition, as above provided, it shall be lawful for the councils of the said city of Pittsburg to pass and adopt, in manner- provided by law, an ordinance admitting' said borough, township, or portion of any township, into said city.” Now, by the provisions of this act, there is one condition under which the power of the city attaches, and only one ; that is, the petition of at least three-fifths of the taxable inhabitants of the territory intended to be annexed. Without this the action of the city couocils in the premises is ultra vires and void. But the auditor finds, nemine contradieente, that three-fifths of the taxablé inhabitants within the territory, in this case to be annexed to the city, did not petition for such annexation. This fact being ascertained, it is an end of the controversy, for the city councils, under such circumstances, had no power to do that which they attempted to do. A failure of the condition involved a failure of their jurisdiction. But it is argued that the affidavit required by the act is conclusive of the facts stated in it; among others, that -the petition did contain the names of three-fifths of the taxable inhabitants of the territory to be annexed. This .allegation would have force if the statute so provided, but it does not. Ex parte affidavits are, at best, but a very weak kind of evidence, and generally form but the ground of some preliminary or interlocutory action, but are never,, unless it be especially so provided by Act of Assembly or rule of court, the foundation for final judgment or decree. So in this case, the affidavit was primá, facie evidence that the petition was what it purported to he, an expression of the desire of not less than three-fifths of the taxable inhabitants of a portion of Wilkins township for annexation to the city of Pittsburg; and the councils might, under such warrant, proceed with «any preliminary action necessary to ascertain the main fact upon which the validity of their final action must depend. To give it a force beyond this, would be to raise, by implication from the act and a forced construction of it, evidence on which to rest a power such as can only be derived from the strict letter of the statute itself: Borough of West Philadelphia, 5 W. & S. 281; Borough of Little Meadows, 4 Casey 256; Devore’s Appeal, 6 P. F. Smith 163; Pittsburg v. Walters, 19 Id. 365; Olds v. City of Erie, postea p. 380.

. The other question — the right of a private citizen to maintain a bill such as that upon which this case is founded — is hardly open for argument. So many are the cases in which such hills have been sustained that one might suppose this matter to be no longer open for debate.. It was held, in Sharpless v. The Mayor, &c., 9 Harris 147; Moers v. Reading, Id. 188; Page v. Allen, 8 P. F. Smith 338; and more recently in Wells et al. v. Bain et al., 25 P. F. Smith 39, that the interest of a taxpayer, when money is to be raised by taxation, or expended from the treasury, is sufficient to entitle him to maintain a bill to test the validity of the law which proposes the assessment or expenditure. If, then, such an interest he sufficient to enable one to test the validity of an election law, which, at most, could increase his tax but to a trifling degree, a fortiori, shall one, like the plaintiff, who is threatened by most burdensome impositions, have the power thus to inquire into the right by which the councils of Pittsburg propose to act in subjecting his person and property to their jurisdiction for the purposes of municipal government and taxation.

Appeal dismissed, decree affirmed, and appellant ordered to pay costs.