379 the proviso itself, and is in clear conflict with the Pike County v. Rowland, 94 Pa. 238. as If the reasoning of the appellees is correct, the city of Philadelphia, upon the figures presented in the bill, the sum of $392,236.33 borrow her munic can now Commonwealth v. Pittsburgh, 34 l'a. 496. May 31, 1897. STERRETT, C. J. This bill was brought by the plaintiffs, citizens and taxpayers of the city of Philadelphia, against the defendants above named, to restrain them from borrowing two sums of $8,000,000 and $3,000,000 respectively, purporting to be authorized by certain ordinances of councils, and from issuing certificates of ipal capacity, and no more, and hence the pro-indebtedness for either of said sums, etc. posed loans of eight and three millions of dollars are illegal and void. If she desires this money, was heard in the Court below on the issue thus A general demurrer having been filed, the cause let the question be submitted to the people, provided by the Constitution. The right to increase her debt is ample-at least twenty-five millions-but the authority to do so must come direct from the electors, as provided by law. John G. Johnson and James Alcorn, assistant city solicitor, (John L. Kinsey, city solicitor, with them), for appellees. In both Wheeler v. Philadelphia, and Pike Co. v. Rowland, it is clear that the view of the Court was that the power to incur debt, or to increase indebtedness to the extent of 2 per cent. was in addition to the existing debt at the time of the adoption of the Constitution, and that the power to so borow would not be exhausted until 2 per cent. was added to the debt existing at the time of the adoption of the Constitution. The Supreme Court saw clearly that the object of the constitutional convention was to limit an increase of indebtedness not as between two presented, and a decree was entered sustaining In substance, the bill avers that the total debt of the city on January 1, 1874, was $59,338,816.97, that the assets then in the sinking fund were of of the city at that time was $43.565,172.17; that the value of $15,773,644.80, and that the net debt the assessed valuation of the taxable property of the city at the same time was $548.243.535, and that 7 per centum of said valuation was $38,377,047-45 and that the debt of the city, at the time of the adoption of the Constitution, January 1, 1874, was in excess of seven per centum of the then assessed value of its taxable property. periods subsequent to the passage of the Constitution, but as between the date of the adopIt further avers that in pursuance of the authortion of the new Constitution and any period subsequent thereto. It therefore made its compari-Constitution, the Legislature passed two Acts, one ity conferred by section 8 of Article IX. of the son, in determining whether or not the increase was legal between the amount of debt at the date of the adoption of the new Constitution and that which existed at the date of passage of the subsequent ordinance. It is difficult to see how two. standards of comparison can be adopted under this provision. The standard fixed by the Supreme Court in the Wilkes-Barre case is the one which must be adopted in all cases. In the case of Brooke v. City, 162 Pa. 123, the only question presented was whether the city debt in the sinking fund was to be considered a part of the debt, within the meaning of the Con stitution. The inherent power of the municipality was recognized in sec. 8 of the Act of consolidation. February 2, 1854, P. L. 41; and the question of the inherent power of municipalities in Pennsylvania to borrow money was determined in approved May 23, 1874 (P. L. 230), the eleventh section of which provides as follows: "The councils of any city of the first class, the debt of which now exceeds seven per centum upon the assessed value of the taxable property therein shall be and they are hereby authorized to increase the said debt one per centum upon such valuation." The other was approved June 11, 1879 (P. L. 137), the first section of which is as follows: "The councils of the cities of the first class be and they are hereby authorized to fund the present floating indebtedness of said cities to the extent of ten million (10,000,000) dollars, provided the said loan shall not exceed two per centum upon the assessed value of the taxable property of said cities." It further avers that in pursuance of the Act of May 23, 1874, the city increased its debt between January 1, 1874 and January 1, 1886, to the amount of $4.772,950, and as a part of the loan made April 1, 1890, to the amount of $709,485.35, city on January 1, 1897, was $54,023,120.22, and the these two sums making an aggregate of $5,482,- securities in the sinking fund and other assets 435-35 which was the total amount of one per available in reduction thereof reduce the same centum upon the entire assessed valuation of the so that its net amount on January 1, 1897, was property of the city as it was on January 1, 1874, $31.336,674.44. On same date, the assessed value viz: $548,243,535. The bill further avers that the of taxable property was $818,827,549, 7 per centum various loans thus made exhausted the power of of which is $57,317,928.43, and the net debt of the the city to increase its indebtedness under said city therefore was $25,981,253.99, less than Act of May 23, 1874, and also that under said Act 7 per centum of the assessed valuation of taxable of June 11, 1879, the city did fund its floating property therein. It is further averred in the debt to the amount of $9,199,459.30, and thus ex-bill that 2 per centum of the assessed valuation hausted its power to increase its debt under said of property on January 1, 1897, was $16.376,550.Act. The increase of indebtedness thus made un- 98, and deducting from this the net amount of der the two last mentioned Acts having ex- the new debt created as aforesaid ($15,984.314.65) hausted the authority of the city to make the in- since January 1, 1886, shows a resulting amount crease of 3 per centum, authorized by the last of $392,236.33 less than 2 per centum upon the clause of sec. 8 of Article IX. of the Constitu- whole assessed value of taxable property on Jantion, that subject may be dismissed from further uary 1, 1897. It is also averred that this last consideration. mentioned sum is the lawful limit of the present The bill further avers that on January 1, 1886, borrowing capacity of the city at this time. The the total amount of the funded debt of the city aggregate of the two proposed loans now under was $62,068,120.22, and the amount of securities consideration is $11,000,000, and if plaintifs' conthen held in the sinking fund was $20,911,775, tention is correct, there is no authority, on the leaving the total debt of the city at that time $41,- part of the city, to make either of them. Both 156,345.22. The assessed value of the property of these proposed loans were authorized by city of the city at that time was $611,309,615, 7 per ordinances; neither of them was authorized by centum of which is $42,791,673.05, and hence the a vote of the electors of the city. net debt of the city was then $1,635,327.83 less The averments, facts, figures, etc., set forth in than 7 per centum of the then assessed valuation the bill, having been admitted by the pleading of its property. It further avers that subsequent to be true and correct, must necessarily be taken to January 1, 1886, the city had no lawful right as the basis of our judgment in determining the to increase its debt, or incur any new indebted-question whether the city has the power to make ness beyond 2 per centum of the said valuation the loans aforesaid or either of them; and that without a vote of the electors, except to borrow brings us to the consideration of sec. 8, Article the sum of $709,485.35, the balance of the debt authorized to be created by the Act of May 23, 1874. IX.. of the Constitution, which reads as follows: "The debt of any city, county, borough, township, school district or other municipality, or inIt is further averred that pursuant to the power corporated district, except as herein provided, granted by the Constitution, sec. 8. Article IX., shall never exceed 7 per centum upon the assessthe city has created new debt and increased its ed value of the taxable property therein, nor shall indebtedness from time to time since January 1, any such municipality or district incur any new 1886, not including refunding loans, to the debt, or increase its indebtedness to an amount amount of $20,000,000, which together with the exceeding 2 per centum upon such assessed valusum of $1,500,000, the residue of the $6,000,000 ation of property, without the assent of the elec loan authorized May 15, 1894, not yet issued, tors thereof at a public election in such manner makes a total of $23,000,000. Of this amount the sum of $709.485.35 was borrowed under the authority of the Act of May 23, 1874, and of the total sum thus borrowed, there are now in the sinking fund assets of the value of $6,906,200, making the net debt incurred since January 1, 1886, under the constitutional authority to borrow 2 per centum of the assessed value of taxable property therein without a vote of the electors, $15,984,314.65. as shall be provided by law; but any city the debt of which now exceeds 7 per centum of such assessed valuation may be authorized by law to increase the same 3 per centum in the aggregate at any one time upon such valuation." This, in connection with the foregoing facts, etc., admitted by the pleading, is the only source the defendants, for making the loans in question. of authority to which we have been referred by The first clause of the section is a positive prohibition of any municipal indebtedness in excess It is further averred that the total debt of the of 7 per cent. of the assessed valuation of the tax able property in the municipality; and the last amount than that is required, it must be clause is a temporary provision for those cases done by a popular vote. That boundary mark in which the indebtedness was greater than the is just as precise and definite as the 7 per cent. 7 per cent. limit at the time of the adoption of ultimate limit prescribed by the preceding clause the Constitution. It was not denied on argument of the section. It may not be transcended, bethat this was anything more than an emergency cause no power to do so is conferred by the lanprovision for such cities as were already indebt- guage of the section. The amount of the new ed to an amount greater than 7 per cent. of the debt or the increased debt shall not exceed 2 assessed value of the taxable property therein. per centum of the valuation. What authority is It was substantially so held by this Court in there for saying that it may be 7 per centum by Wheeler v. Philadelphia, 77 Pa. 338. Mr. Jus- successive increases? Manifestly none. The 7 tice PAXSON there said: "The fact was, however, per cent. limit is a positive bar to all created or known to the convention that at that time the increased debt, and it is only interposed as a debt of the city of Philadelphia, and perhaps final barrier, and is in no sense a specific grant other municipalities, exceeded 7 per centum. In of authority to create indebtedness to that extent, such instances, an arbitrary provision that there either at once or by successive steps. If any debt should be no further increase of the debt, might in excess of 2 per cent. is required, it can only have worked great injury by the stoppage of pub- be obtained in one way, viz.: by a vote of the lic works already commenced and essential to people. But that mode is out of consideration the public convenience and welfare. It was there- here, because it was not adopted. It is argued fore provided that as to such municipalities the here, and was held by the learned Court below, debt might be increased 3 per centum." This that so long as the 7 per cent. limit was not reachbeing true, the exceptional and temporary char-ed, there might be successive increases which in acter of this provision is at once apparent. It the aggregate did not exceed that limit. But is equally apparent from the whole tenor of the the vice of that contention is that no such metheighth section that, if a city whose indebtedness od is authorized by the Constitution. On the then exceeded the 7 per cent. limit, subsequently contrary, it is prohibited by the words of the reduced her debt below that limit, she at once eighth section above quoted. The amount of passed into the category of all the other cities of the whole debt creation therein authorized is 2 the Commonwealth, and thereafter could only per centum-and not any other per centumcreate or increase indebtedness in the same man- upon the assessed value of the taxable property. ner that they could. According to the manifest | If this were not so, the prohibition against a debt meaning of section 8, no city which had reduced creation of more than 2 per cent., by municipal its debt below the 7 per cent. limit, could ever authority, only, would be easily and absolutely again increase it above that limit, and therefore evaded. For if such increase could be made by when in such city a subsequent creation or in- successive additions of 2 per cent. or less, the crease of debt was desired, it would have to be whole amount of 7 per cent. could be successmade in precise accordance with the provision fully reached without any popular vote. Surely of the second clause of section 8, which, of this cannot be, because the language of the seccourse, was the rule for all the municipalities of tion prohibits it. And when it is observed that the Commonwealth. By the terms of that clause, the constitutional provision on this subject may the limit of the created or increased debt was 2 be evaded in this way, that consideration alone per cent. upon the assessed value of the taxable is sufficient to condemn the construction and the property therein, and no more, unless by a vote reasoning upon which the contention is founded. of the people. The words are: "Nor shall any Unless this is true the constitutional prohibition such municipality or district incur any new debt might as well have been omitted. But no such or increase its indebtedness to any amount ex- conclusion as that can be sanctioned. It is ceeding 2 per centum upon such assessed valua- enough to know that the language of the eighth tion of property without the assent of the elec- section permits a debt to be created by municitors thereof at a public election in such manner pal authority to the limited extent only of 2 per as shall be provided by law." This is a grant of cent. on the assessed value of the taxable proppower by negative words, but the negation is erty. That permission is a unit. When once prohibitive of everything beyond the designated exercised its object is fully accomplished, the exlimit. What then is the limit to which a city may press limit of the municipal debt, thus created or go in creating сг increasing its debt? increased, is established and it remains thus esManifestly two per cent., if done by the tablished simply because there is no further aumunicipal authorities, and, if if a greater thority for its change. The question whether and $3,000,000 respectively, and from issuing cer- there may be a subsequent increase by a popular It is clear therefore that in all the cases cited vote is not before us, and of course we do not we have adhered to the proposition that the indecide it. But it is entirely clear that after the crease of 2 per cent. authorized to be made by 2 per cent. limit has been reached, there can be the second clause of the eighth section, may not no further increase by municipal authority only. be transcended except by a popular vote, and this Everything necessary to dispose of this case whether the increase has been made by successhas already been decided in Wilkes-Barre's Ap-ive additions, each less than 2 per cent., or at peal, 109 Pa. 554. in which Mr. Chief Justice one time and by one municipal act alone. We MERCUR, Speaking for the Court, said: "The pro- have not allowed this percentage of increase to posed increase of debt is in itself less than 2 per be exceeded in any instance by mere municipal cent. of the assessed value of the taxable prop- action. It follows, therefore, that as the 2 per erty; but, added to the previously existing debt, cent. limit, in the present case, has been more makes the aggregate more than 2 per centum. than reached by previous additions, though by The contention is whether this can be done with- subsequent reductions the aggregate of the adout the previous assent of the electors in the man- ditions is now slightly below the 2 per cent. limit, ner prescribed by the Constitution. As we have the ordinances authorizing the two loans of $8,seen, one clause thereof declares the city shall 000,coc and $3,000,000, respectively, are both innot increase its indebtedness to an amount ex- valid, and the plaintiffs' bill must be sustained ceeding 2 per centum, without such assent. There and the injunction prayed for awarded. is no warrant in the Constitution to sustain the The decree of the Court below is reversed and proposition that the city may now and from time bill re-instated and it is now ordered, adjudged to time as it sees proper, within the maximum and decreed that the demurrer be overruled and limit of 7 per cent., increase the indebtedness by that an injunction forthwith issue against the desuccessive steps if each increase is less than 2 fendants and each and every of them restraining per cent. Such action is not sanctioned by either them from borrowing the two sums of $8,000,000 the letter or the spirit of the Constitution. . . . . "The argument that ignores the aggregate indebtedness and considers the addition thereto, only proves too much. It would nullify the right of the electors, to vote on the question of increase, altogether. By successive increases, each less than 2 per centum, the city might have the aggregate indebtedness reach the 7 per centum without a vote of the electors. Up to that per Jan. '97, 34. centum, the city would deny the right of the electors to vote on the question of increase, and beyond that per centum the Constitution itself prohibits any increase." In Wheeler v. Philadelphia,| supra, it was said: "The main controversy, however, was as to the manner in which such increase) The rule that the claim of a property owner for damages should be accomplished. Here again the distinc- caused by the opening of a street must be asserted as an tion is preserved between municipalities whose from afterwards setting it up, is not violated where, hav entirety, and if any part of it be omitted he is estopped debt is under 7 per centum and those in which it ing recovered damages in proceedings occasioned by the exceeds 7 per centum. In the former, the munic-widening of a street in one proceeding, the same proprie ipal authorities may increase the debt from time tor, two years later, joins in other proceedings for the to time until 2 per centum has been added, struction of a bridge in the same street. recovery of damages for the change of grade in the conprovided the original debt with the increase does not exceed the 7 per centum. After the 2 per cent. has been added, there can be no further increase without the vote of the people." To the same effect is Pike County v. Rowland, 94 Pa. 238. In that case, Mr. Justice TRUNKEY said "In strictness the words may mean as contended by defendant, but the context seems to make it clear that the true sense of the clause is a prohibition of a new debt, exceeding 2 per centum of the assessed valuation without a public vote." Supreme Court. W. C. S. March 30, 1897. Rodgers et al. v. Philadelphia. Municipalities Streets - Bridges-Damages— Jury of view- Practice. Appeal of the City of Philadelphia, from the judgment of the Common Pleas No. 3, of Philadelphia County, entered on a verdict in an appeal from the report of a jury of view, wherein Samuel M. Rodgers and Amos Pennypacker were plaintiffs, the said Rodgers afterwards being substituted as the administrator of the said Amos Pennypacker, who died pending the appeal. The facts of the case, appearing by the record and on the trial before McMICHAEL, J., were as E. Spencer Miller, assistant city solicitor, (John L. Kinsey, city solicitor, with him), for appellant. This case presents two questions: fellows: The plaintiffs were owners of certain Verdict for plaintiff in $6500, and defendant approperty in Frankford, part of which was taken pealed. by virtue of certain proceedings for the opening of Kensington avenue. The jury of view appointed in the proceedings made no award to the petitioners and they appealed. On February 1, First, can recovery be had on appeal from the 1895, by leave of Court the plaintiffs filed an report of the jury assessing damages because of amended statement claiming damage to their the opening of a street, for loss by reason of the property in the sum of fifteen thousand dollars. construction of a bridge, the erection of which In 1892 a new bridge was built over Frankford is begun after the report has been filed? creck, in the building of which it became neces- Second, if a property owner becomes a party sary to elevate the street approaching to the to a proceeding to assess damages for the consouthern end of the bridge seven feet higher than struction of a bridge, makes a claim for injury to its previous grade. John Martin, one of the own- his property occasioned thereby and collects ers of property on the south side of Frankford damages for such construction, can he subsecreek, filed a petition for the assessment of dam- quently make claim in a different proceeding, ages caused by the construction of the bridge, because of some effect not previously urged by "its abutments, slopes, and embankments on him in the regular proceeding? Kensington avenue and Frankford creek, be- This Court has settled, by several recent detween old Front street and the said creek." The cisions, the principle that a claim cannot be made proceeding was virtually to assess damages for a because of an exercise of eminent domain, for change of grade between the points named. The damages which have not been suffered at the property of the plaintiffs in this case was involy- time of claim. ed in the petition of John Martin. The jury appointed awarded the plaintiff one thousand dollars. The Court rejected the defendant's offer of the record of the matter of the assessment of damages for the construction of Kensington avenue bridge, C. P. 1. December term, 1891, No. 932. (First assignment of error.) The defendant asked the Court to charge: "If the jury find that Kensington avenue bridge was not begun or the plans defined at the time when the report was filed from which this appeal is made, they must find for defendant.” and "If the jury find that the plaintiffs were a party, in 1892, to the proceeding for the assessment of damages, C. P. No. 1, December term, 1891, No. 932, because of the construction of Kensington avenue bridge, they must find for defendant." Both requests were refused. (Fourth and fifth assignments of error.) The defendant asked for binding instructions, which were refused. (Third assignment of error.) The Court charged, inter alia, as follows: Pusey v. Allegheny, 98 Pa 5:2. Substituting the construction of a bridge for Where the damages arising from the taking and from the change of grade occur at the same time, the damages for the taking must embrace the damages for the change of grade, because the plaintiff can have but one action for damages resulting from the same cause of action. "The city of Philadelphia, in the exercise of Righter v. Philadelphia, 161 Pa 73. its right of eminent domain, which has been de- But, on the other hand, where the damfired to be that sovereign power vested in the ages by change of grade or otherwise are not people, by which they can, for any public pur- done at the same time, but occur at a subsepose, take possession of the property of any in- cuent period of time, then such subsequent damdividual upon just compensation paid to him, has ages may and must be recovered by a subsequent widened Kensington avenue from a street thirty action, and cannot be recovered in the first profeet in width to an avenue seventy feet wide, and ceeding, because, not being then contemplated, incidental to that widening the city has con- any evidence in relation thereto would be wholly structed a new bridge across Frankford creek." speculative, and would allow a recovery for what (Second assignment of error.) night never occur. |