Lehigh Coal & Navigation Company's Appeal , 112 Pa. 360 ( 1886 )

Mr. Justice Gordon

delivered the opinion of the Court, April 5th, 1886.

Under the 7th section of the Act of 1885 the supervisors of a township have power to levy an assessment, in addition to that authorized by the 25th section of the same act, and collect the same for the purpose of discharging any just debt due to a former supervisor. This assessment could, of course, be made on their own motion, but if they refused so to do they might be compelled to make the necessary levy by a writ of mandamus. The first section of the Act of -the 31st of March, 1864, has, however, given the courts of Quarter Sessions full and exclusive jurisdiction over this matter, in that, when it is made to appear that the debts due by a township exceed the amount which the supervisors may assess in any one year, the said courts may, after ascertaining the amount of the said debts, by a writ of mandamus, direct the proper officers, by special taxation, to collect and pay the same. The proceeding here prescribed presupposes that the indebtedness has been previously ascertained and fixed, as by judgment, the auditor’s settlement, or otherwise, so that the decree of the court can be regarded only as executionary. As, therefore, the court of Quarter Sessions has no power to try and pass upon the merits of the claims thus presented, the legislature has not seen proper to allow an appeal, and this, doubtless, for the reason that it could but delay the collection of the township indebtedness without promoting any just purpose. It is thus certain that the Lehigh Coal and Navigation Company has, in this ease, no standing as'an appellant; Nor do we see how. or' by what authority it assumes to intervene by the writ of certiorari. It has no' such right by virtue of the Act'of March' 23d, 1877, for by this Act the power of intervention by the taxpayer is-confined to the Common Pleas, and cannot by any' principle of construction be extended’ to the executionaryprocess of the Quarter Sessions. • Admitting, hbwever, that we have the writ of certiorari properly before Us, we are, nevertheless,confined to the record alone, and having ascertained its regularity'our power of review is at an end. But, in the record before us we have failed to discover the slightest flaw. The petition on which the-order is founded is by certain creditors of the township', setting forth their several 'claims, regularly ascertained and. fixed'by judgments; demand made for’ pajunent on the proper officers, and their refusal to pay based on the ground that the:township was not in funds for that purpose,, and the-petition closes with a prayer fora mandamus. This is followed bt' a rule on the supervisors, and their anwer admitting the rectitude of the several claims, and setting forth the' assessed valuation of the township at five hundred and sixty-seven thousand four 'hundred and 'ninety-five dbl-' lars, and the whole indebtedness at thirty-six hundred. these debts had been ascertained' and fixed by judgments before a Justice'of the Peace, and .as the indebtedness does appear to have .exceeded the amount allowed bv the eighth section.of the Ninth Article of the Constitution, the way was clear for :the court to make the required .order. It is urged, however,'that the assessment directed by the Quarter Sessions-is obnoxious to the tenth section of the article above cited,: which reads as follows: li Any county, township, school triet, or other municipality, incurring any indebtedness, shall, at, or before the time of so doing, provide for the collection of an annual ’ tax sufficient to pay the interest, and also 'thfe' principal thereof'within thirty years.”' That this section cah'-/ not apply to the' incidental :and ordinary, expenses of makihg-' and repairing of township roads, is obvious in this: the indebt-' edness. thus mentioned is such .as may-arise from some contract of the municipality, itself,, and which for some definite period is to befinterest bearing., Moreover, under the inter-, pretation'which. the counsel 'for the appellant would -give this section, the present.methods for the making and' repairing; of township , roads would have to be abandoned, for the mill tax, th'e only one that can be levied in the first instance, may'be all worked out'by the taxpayers, leaving nothing the..purchase'of material, the building of bridges, cost of tools, hiring of teams, and the pay of supervisors. The fact is, to say that a municipality of any sort cannot in any event employ laborers, or contract for materials, necessary to meet those constantly occurring emergencies which no human prevision can anticipate, without first providing for a tax by which they are to be paid, is to say that they shall not be permitted to exercise those functions for which they were erected. And this in an especial manner as to townships, which, as our statutes now stand, have no power to anticipate such incidental expenses, and can only assess a tax for their payment after they have been incurred. The obstacles to the application of this constitutional provision to the case in hand seem insuperable, and notwithstanding the able and ingenious argument of the learned counsel for the appellant, we cannot see our way clear for the adoption of their views concerning the construction of this provision, and its adaptation to the matter in controversy.

The appeal is quashed at the costs of the ap- • pellant, and the proceedings brought up by the certiorari affirmed.

Curiously enough, before the announcement of the judgment of this court, a motion for re-argument on part of the appellant was submitted to us which we are asked to grant on the following point: “The Act of 1834 limits the extent of debts that may be contracted. The Act of 1864 authorizes a levy for debts not contractual.” Iii answer to this application we have but to say, that a careful examination of the Act of 1834 has failed to reveal to us any such limitation as that mentioned in the point; rather the contraiy, for the sixth and seventh sections thereof givé to the Courts of Common Pleas power to order the payment of any judgment obtained against a township in the same manner as they may direct such payment in the case of a county, but neither the character of such judgment nor its amount is prescribed. As this order, however, Was limited to a mere direction to pay out of any moneys in 'the township treasury not otherwise appropriated, and as it was held in Dunne v. Deegan, 7 Wr., 334, that the process prescribed by the 7th section of the Act of 1835 did not apply to any other debts than those due a former supervisor, it is clear there was, previously to the Act of 1864, no means by which a creditor could compel the payment of his claims by the township officers. This Act was, no doubt, intended to remedy this defect, and it is only necessary to read it to discover that a limitation of it to debts not arising from direct contract would be a gross perversion of legislative intention.

The motion for a re-argument is refused.