Swartz v. Carlisle Borough , 237 Pa. 473 ( 1912 )

Opinion by

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 bé 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 siich 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 been frequently validated by subsequent legislation: Tate v. Stooltzfoos, 16 S. & R. 35; Journeay v. Gibson, 56 Pa. 57. Municipal assessments, uncollectible by reason of defects in the proceedings, have been cured by subsequent retroactive acts: Com. v. Marshall, 69 Pa. 328; Donley v. Pittsburgh, 147 Pa. 348. Defects in tax levies have been cured in the same way: Weister v. Hade, 52 Pa. 474; Hewitt’s App., 88 Pa. 55. So, too, it has been held, in a judicial proceeding, where jurisdiction had attached, but on account of a formal defect in the proceedings they would have to be declared invalid, the legislature may subsequently correct such defect and provide a remedy: Lane v. Nelson, 79 Pa. 407. Our reports are full of cases to the same general effect. The true rule seems to be, as we gather it from our own cases, and from decisions in other jurisdictions, and from text writers generally, that where the omission to be cured is some act which the legislature might have dispensed with by a prior statute, the courts will construe the curative act so as to give it the retrospective operation intended. It will not be seriously contended, we assume, that the legislature could not have dispensed with all of the matters relating to the election complained of in the present bill, and if. these requirements could have been dispensed with by a prior statute, under the rule above stated, they can be cured by subsequent retroactive legislation. The legislature intended by the Act of 1911 to cure these defects and to validate elections so held. We think it was a valid exercise of legislative power and must be sustained. The same rule is recognized and followed in many other jurisdictions. Acts validating^ defective elections and legalizing municipal bond issues have frequently been held to be constitutional: Springfield Safe-Deposit & Trust Company v. Attica, 85 Fed. Repr. 387; State v. Brown, 106 N. W. Repr. 477; Witter v. Polk County, 112 Iowa 380; Schneck v. Jeffersonville, 152 Ind. 204; Read v. Plattsmouth, 107 U. S. 568; Bolles v. Brimfield, 120 U. S. 759. It is argued for appellant that Article IX, Section 8, of the Constitution, prohibits retroactive legislation relating to the increase of municipal indebtedness because of the provision which requires the assent of the electors, to be expressed “at a public election in such manner as shall be provided by law.” This position was answered by the court below in Rebman v. School District, 201 Pa. 437, wherein it was said: “The evident meaning of the section is that the election held for such purpose is subject to such regulation as the legislature may thereafter prescribe.” The decree in that case was affirmed by this court on the opinion of the court below and we are therefore committed to this view of the law. This would seem to be a complete answer to the contention that the Constitution forbids what it expressly authorized the legislature to do.

• The other matters complained of relate, to minor details and are without substantial merit under the facts and the law.- The expression of the popular will of the people upon the question of an important municipal improvement affecting the health and convenience of the inhabitants, should not be defeated because the election officers did not deposit the ballot boxes with a proper officer within a certain time after the election, especially is this true, when no fraud is charged; and the result of the election is in no way questioned. Failure to perform such duties on the part of election officers may subject them to penalties, but in the absence of fraud should not be held sufficient to set aside the election itself. Where tally papers were not returned as required by law, it was held that failure to perform this duty did not invalidate the election itself: Mann v. Cassidy, 1 Brewster 11; Ewing v. Filley, 43 Pa. 384.

We, therefore, conclude that all matters of substance about which complaint is made in the present bill, as to the manner of holding the election, were validated by the Act of 1911 and that the bill was properly dismissed.

Decree affirmed at the cost of appellant.