Ackerman v. Buchman , 109 Pa. 254 ( 1885 )

Mr. Justice Sterrett

delivered the opinion of the Court,

After fully and sufficiently setting forth their authority to act as a board of water commissioners in the construction of the public water works under the provisions of the Act authorizing the same, the plaintiffs below aver that they have selected a site for the erection of such works and the buildings and appliances necessary thereto, and also a site for the reservoir, etc., as the law provides; “ that said locations, in their judgment, are in every way suitable and convenient, and the amount of land in quantity ample for the purpose; that arrangements have been made with the owners for the purchase of said land upon terms and for a price reasonable and just.”

Then follow the averments of fact which, it is claimed, constitute such neglect of duty, on the part of the town council, as warrants the issuance of the mandamus, viz : “ That the town council of the borough of Easton have been from time to time duly notified, in writing and otherwise of the action of your petitioners, and have been called upon to issue the bonds to raise tbe money necessary for them to carry out the provisions of the law, and to discharge the duties imposed upon them thereby.”

“That the said, the town council, have hitherto neglected and-refused to comply witli the request of your petitioners, and to take such action in the premises as the law provides.”

In response to these averments, the defendants below, members of the town council, in the third paragraph of their answer to the alternative writ, aver, inter alia, “That the said water commissioners have not yet informed the said town council whether they have made any contract to construct the said works, or whether they will construct them otherwise than by contract. That they have not informed the said town council how much money will be required, during the year 1882 or during any other period of time, for the construction of said works or any part thereof; nor, have they requested the said town council to appropriate any specific sum of money to the construction of said water works.”

“ That your respondents are advised that a reasonable construction of the said Act of Assembly does not require the said town council to borrow money or issue bonds for the construction of said water works, unless they should find that the current revenues of the said borough from year to year should be insufficient for the payment of the cost and construction of the said water works, and that as the said water commissioners have not furnished the said town council with any estimate or statement either of the contract price of constructing said water works, or of the probable cost of constructing the same otherwise than by contract, the said town council have had no data or basis upon which to make appropriations for the construction of said works, and these respondents are advised that they are not required to vote for the issue of bonds by the said corporation until it be ascertained that the current revenues of the said borough are insufficient to pay for the cost of said works.”

While the petition in the inducement clauses thereof, is sufficient, it is defective in not setting forth such facts asare necessary to show that the town council was in default in not discharging the duties devolved on them by the Act. Conceding to the board of water commissioners the most extended authority they can possibly claim under the Acts recited in their petition, it was surely their duty to furnish the town council with full and specific information, of the nature and character set forth in the above quoted portions of the answer, including an estimate or estimates of the amount that would be required to prosecute the work entrusted to them, and make due and timely requisition on the council for the amount so required. While the powers of the board are large and ample, their authority is not supreme. The town council are charged with the duty of providing the funds necessary to construct the water works ; but, in order that they may discharge that duty properly, they should be furnished with such information as will enable them to act intelligently and for the best interests of their constituents. They are clothed, it is true, with authority “ to issue bonds to raise money necessary for the purposes of the Act ” but they are the judges of the necessity for doing so. If they find that the current revenues of the borough from year to year are sufficient to pay for the construction of the works, they are not required to create a bonded indebtedness under the authority given them by the Act. For these and other reasons that might be suggested, it is obvious that the town council should be formalty and officially furnished with such information as has been suggested and is not averred in the petition. The petition being defective in that regard the writ of mandamus should not have issued.

But, aside from this, assuming that the averments of the petition above quoted sufficiently charge the town council with neglect of duty, it should be observed these averments are not all admitted by the pleadings. On the contrary, the converse of some of them is thereby admitted. By demurring to the answer the plaintiffs below admit everything that is well pleaded therein, whether by way of traverse or otherwise. They thus admit, for example, the averments of fact above quoted from the third paragraph of the answer, among which are, that they never “ informed the town council how much money would be required during the year 1882, or during any other period of time, for the construction of said works or any part thereof; ” that they never “requested the town council to appropriate any specified sum. of money to the construction of said water works; ” and that they never “ furnished the town council with any estimate or statement either of the contract price of constructing said water works, or of the probable cost of constructing the same otherwise than by contract.” We have already said it was their duty to do these things before they are in a position to charge the town council with negligence and refusal to perform their duty. This is an additional reason why the peremptory writ of mandamus should not have issued. The second to fifth specifications of error inclusive are sustained.

In the first specification it is claimed “ the court erred in deciding that the issue of bonds commanded in the alternative writ of mandamus was not in violation of Section 8, Article IX. of the Constitution.” This presents substantially the same question that was considered and passed upon by this court in Wheeler v. Philadelphia, 27 P. F. S., 352; and Pike County v. Rowland, 13 Norris 238. The very able and ingenious argument of the learned counsel for defendants below has failed to convince us that there is any error in the construction given by the learned judge to the constitutional provision above referred to. The first assignment is dismissed.

Judgment reversed and judgment for defendants below on the demurrer.