Montgomery, Jr. v. Martin

143 A. 505, 294 Pa. 25, 1928 Pa. LEXIS 339
CourtSupreme Court of Pennsylvania
DecidedJune 30, 1928
DocketAppeal, 2
StatusPublished
Cited by23 cases

This text of 143 A. 505 (Montgomery, Jr. v. Martin) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montgomery, Jr. v. Martin, 143 A. 505, 294 Pa. 25, 1928 Pa. LEXIS 339 (Pa. 1928).

Opinion

Opinion by

Mr. Chief Justice Moschzisker,

Plaintiff filed a taxpayer’s bill against the auditor general of the Commonwealth and the state treasurer, asking that they be restrained from “preparing and printing any bonds for the purpose of issuing them ......under the supposed authority of that part of article IX, section 4, of the Constitution of Pennsylvania, as amended, which authorizes the State to issue bonds for the purpose of improving and rebuilding highways.” The injunction was awarded and this appeal followed.

The bill avers, inter alia, the facts, which we shall recite later, as to certain relevant constitutional provi *29 sions and legislation; it also avers that bonds to raise money for highway purposes had been theretofore issued and sold by the Commonwealth to the amount of one hundred million dollars; that “of these bonds two million one hundred and twelve thousand dollars were redeemed and one million five hundred thousand dollars were purchased [by] the Commonwealth’s Sinking Fund”; that on May 29,1928, the Governor, purporting to proceed under the Act of April 18, 1919, infra, directed defendants to prepare and print highway bonds in the amount of three million dollars, for issuance under authority of that statute, to replace like securities purchased and cancelled, as recited above, and that defendants were about to comply with this direction; that the preparation and printing of these bonds will involve an unwarranted and illegal expenditure of state funds, since securities have already been issued to raise money for highway purposes to the full limit allowed by law.

Defendants’ answer admits every fact set forth by plaintiff but denies all his conclusions of law; it prays that the bill be dismissed.

This court was furnished with copies of the opinion of the court below immediately upon its rendition, and with briefs well in advance of the date fixed for argument ; thus we have been enabled to study the case and place ourselves in a position to comply with the request of counsel on both sides for a prompt decision.

At the legislative sessions of 1915 (P. L. 1107-08) and 1917 (P. L. 1264), a resolution was passed to amend article IX, section 4, of the Constitution, as follows: “No debt shall be created by or on behalf of the State, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the State in war, or to pay existing debts; and the debt created to supply deficiencies in revenue shall never exceed, in the aggregate at any one time, one million of dollars [to this point the language is that of the Constitution of 1874, the new part reading thus]: Provided, however, that the Gen *30 eral Assembly, irrespective of any debt, may authorize the State to issue bonds to the amount of fifty millions of dollars for the purpose of improving and rebuilding the highways of the Commonwealth.” (The italics are ours.) This amendment was duly adopted by the people in 1918.

At the session of 1921 and again in 1923, two resolutions to further amend the above section were passed. The first of these repeated the resolution as we have quoted it, adding: “Provided further, however, that the G eneral Assembly, irrespective of any debt, may authorize the State to issue bonds to the amount of thirty-five millions of dollars for the payment of compensation to certain persons from this State who served in the Army, Navy or Marine Corps of the United States during the World War.” See 1921 P. L. 1236-7 and 1923 P. L. 1121. The second resolution to supersede the amendment adopted in 1918 used precisely the same wording as there employed, except that, in place of “fifty millions of dollars,” it contained the words “one hundred millions of dollars.” See 1921 P. L. 1238-9 and 1923 P. L. 1118.

At the general election in 1923, the last mentioned resolution was adopted as an amendment, and, in the course of deciding the point before us in Taylor v. King, 284 Pa. 235, 240, we held that, although the Constitution had been amended in another particular in 1920, yet, since there had been no effort to restrain the submission, in 1923, of the resolution in hand, it, having been approved by the people, was part of the organic law beyond attack.

In Armstrong v. King, 281 Pa. 207, we directed the Common Pleas of Dauphin County to enjoin the secretary of the Commonwealth from advertising for the election of 1924 the other resolution, containing the thirty-five million dollar bonus provision, for the reason that, a constitutional amendment having been submitted to the people in 1923, no other one could be considered until 1928.

*31 Three Acts of Assembly have been passed under the amended constitutional provision now before us. The Act of April 18, 1919, P. L. 62, putting into effect the amendment of 1918, authorized and provided for the issuance and sale of bonds to an amount “not exceeding in the aggregate fifty millions of dollars......for the purpose of improving and rebuilding the highways of the Commonwealth.” The Act of March 6, 1925, P. L. 24, effectuating the amendment of 1923, authorized and provided for the issuance and sale of bonds for highway purposes, in the total amount of fifty million dollars. Both of these acts expressly state that they were passed in accordance with the provisions of section 4, article IX, of the Constitution, as last amended prior to their respective dates. The Act of June 6,1923, P. L. 494, provided for the issuance and sale of bonds in “such sum or sums of money and for such purposes as the Constitution authorizes the State to issue bonds.” This act was declared unconstitutional in Hollinger v. King, 282 Pa. 157.

Before construing or attempting to apply such of these statutes as figure in this case, the first question we have to consider may be stated thus: What constitutional limitation is fixed by the amendment of 1923 on the power of the legislature to authorize the issuance and sale of bonds for highway improvement? Is the limit one hundred million dollars, the amount there named, or that sum plus the fifty millions mentioned in the amendment previously adopted in 1918? The next question is, Does the Constitution, as amended, permit the legislature to authorize the issuance of highway bonds only until the maximum amount named in the proviso to article IX, section 4, is reached, or does it permit the legislature to authorize money to be borrowed, from time to time, in such amounts that the maximum of outstanding bonds shall never exceed at any one time the amount so named? While this question is here put in the second place, it is treated as of first importance both by the court below and by appellant.

*32 The concrete question in the case under the last of the above propositions is: One hundred million dollars of bonds having been issued by the State for improving and rebuilding the highways of the Commonwealth, and some of these obligations having been paid off and cancelled, does the Constitution as amended permit new bonds to be issued in place of those thus retired?

In this country the legislature of a state represents the sovereign will of a sovereign people, and, in the absence of constitutional restrictions, can authorize the state to borrow any amount of money for any purpose it sees fit (Norris v. Clymer, 2 Pa.

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Bluebook (online)
143 A. 505, 294 Pa. 25, 1928 Pa. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-jr-v-martin-pa-1928.