McAndrew v. Dunmore Borough

Opinion by Mr. Justice Mestrezat, We agree with the learned court below that the ordinance in question authorizing the improvement of certain streets in the defendant borough is void, and that a taxpayer against whom an assessment was made for the improvement can attack its validity in a court of equity. The validity of the ordinance depends upon the authority conferred by the Acts of May 12, 1911, P. L. 288, and June 15,1911, P. L. 971. The later act authorizes the council by ordinance to provide for the payment of the expenses and costs of a municipal improvement by assessments on the properties fronting thereon payable in semi-annual or annual instalments, and also to provide for the payment of the costs and expenses of the improvement as it progresses by issuing bonds which shall rest alone for their security and payment on the assessments and shall be' payable at periods not exceeding five years from the date of their issue, to be provided in the ordinance directing the improvement. The moneys received by the municipality from the assessments are to be applied to the payment of the bonds exclusively. The ordinance authorizing the improvement in this [105] case provides that two-thirds of the cost of the improvement shall be paid by assessments against the abutting property, payable in seven equal annual payments, the first thereof thirty days after work shall commence, and that the bonds shall be issued payable “at any time within six years from their respective dates.” It is clear, therefore, that the ordinance fails to meet the statutory requirement that the bonds be payable in five years and, necessarily, the assessments within a like period, as the bonds are payable exclusively out of the proceeds of the assessments. Municipal improvements are regulated entirely by statute to which the rule of strict construction applies. This principle is so well settled that it does not need the citation of authorities to support it. There was, therefore, no authority in the councils in the case in hand either to issue the bonds payable at a longer period than five years from the date of issue or to make the assessments payable in instalments extending beyond that period. These requirements of the statute under which the improvement was to be made were entirely disregarded in the ordinance. They were a substantial and material part of the ordinance and being disregarded the ordinance necessarily was invalid. If a time of payment of the bonds fixed by the statute may be enlarged by one year by the ordinance authorizing the improvement it may be extended any number of years, in the discretion of the council. It is immaterial what the legislative purpose may have been in fixing five years as the time within which the bonds issued for the payment of municipal improvements should be paid, it is sufficient to know that such is the statutory requirement and the council has no authority to disregard it. It is contended, however, by the defendant borough that the variance of one year between the statutory provision and the ordinance is immaterial and that no one is prejudiced by the fact that the time of payment is enlarged. It is, therefore, claimed that the plaintiff, a [106] taxpayer against whom an assessment had been laid, has no standing to complain, and hence cannot maintain this bill. This contention overlooks the fact that this is a proceeding to impose a burden upon the plaintiff and to compel him, willingly or unwillingly, to contribute to the public improvement, and that it is only sustainable by virtue of statutory authority. The right of the plaintiff to maintain this bill does not depend upon whether a change in the time of the payment of the bonds injuriously affects him or not. The test of his standing to invoke the aid of a chancellor in resisting payment of the assessments laid upon his property is whether the municipality has legally exercised the authority imposing the burden upon him. Whether, therefore, the time fixed by the ordinance for the payment of the bonds beyond the statutory period is or is not prejudicial to the plaintiff’s interests is not the test of his right to successfully resist the enforcement of the ordinance which compels him to pay for the improvement. He sustains his right to maintain the bill when he shows that the improvement is not made in pursuance of an ordinance passed in conformity with the statute authorizing it. There is nothing in the contention that the part of the ordinance providing that the improvement bonds shall be redeemable in six years may be invalid and the balance of the ordinance be legal and enforceable. It may be conceded that an ordinance, like a legislative statute, may be good in part and upheld, while another part may be illegal and void. A section or a part of an ordinance or statute may be so disconnected in purpose and effect that its illegality will not necessarily avoid the ordinance or legislative act in toto. But that principle cannot be invoked here to sustain any part of the ordinance authorizing the improvement in question. The ordinance provides for a contract for the grading and paving of certain streets of the municipality and it is a constitutional requisite of such ordinance that it provide at the same time the lawful means of payment for the [107] improvement. It is, therefore, manifest that the means and method for payment of the obligations contemplated in the contract are essential features of the ordinance and, if illegal, invalidate the entire ordinance. , A further consideration of the questions involved is unnecessary in view of the very thorough discussion of them by the learned trial judge. Decree affirmed.