Opinion by
Mr. Justice Kephart,
June 30, 1933:
Maidencreek Township, a township of the second class, on August 23, 1921, borrowed $6,000 for use in permanently improving a state aid road. It gave its note to the First National Bank of Leesport, which was renewed on November 29, 1921, and from time to time thereafter until July 20, 1930, from which date it remains due.
The property assessment within the township for tax purposes in 1921 was $1,266,378, and the debt is conceded to be within the two per cent constitutional limit.
Later on, in 1928, the township purchased a truck, and gave to the bank its note for $6,000. In that year and the following, 1929, the township paid on account of this note $3,000, leaving a balance due of $3,000. The bank thereafter applied money of the township on deposit in payment of the above balance.
At no time was the two per cent constitutional limit on indebtedness without the approval of the electors exceeded. No tax was levied at or before the time the foregoing transactions took place to provide for payment of the indebtedness.
On August 9, 1930, the Supervisors, by resolution, levied a tax to pay the $6,000 and $3,000 notes, authorizing the issuance of a new note in the sum of $9,000 as a “collateral” note.
The Secretary of Internal Affairs in accordance with the Act of 1927, P. L. 9, and its supplement of 1929, P. L. 516, approved the note. The $9,000 collateral note was then delivered to the bank; a tax was levied to pay the note as will later appear.
A taxpayer’s bill was filed to enjoin the township from paying any part of the $9,000 indebtedness. After hearing, the court below ordered the bank to repay the amount retained by it in payment of the 1928 note and declared that debt void. It also held that the note evidencing the indebtedness of 1921 was illegal and void, and constituted no valid obligation of the township. From this decree the bank has appealed.
In Georges Twp. v. Union Trust Co., 293 Pa. 364, it was stated at page 369: “The limitations on all municipalities to the power to create a debt or borrow money are as follows: First, there must be a lawful purpose for which the money is to be used or the debt created, and, second, the amount which can be borrowed is determined by reference to (a) the current revenues due or created within the year, and (b) the constitutional percentage authorized on the assessment value of property. The procedure necessary to give effect to the borrowing power is not an incident of the power, but a regulation for its proper exercise. The purpose for which money is to be used, or a debt is to be created, may be ascertained from the authorizing acts, or duty enjoined, or necessarily implied therefrom. In this case it is alleged that the notes were given for loans incurred for the repair and improve
ment of public roads. This is a proper purpose for which money can be borrowed, or a debt created, if the notes are valid obligations in other respects as well.”
The court below found that the purposes for which these loans were created, the permanent improvement of highways, and the purchase of equipment (the truck) for use in making and repairing the roads, were lawful: Act of July 14, 1917, P. L. 840, chapter VII, article I, section 381, clause VIII; Act of April 10, 1929, P. L. 470, section 1. However, it is not building of road or purchasing a truck that is here in controversy: it is the validity of the debts by which these purposes were accomplished that is in question.
The power of a second-class township to borrow money is found in the township code and other statutes, and is limited and regulated by the Constitution. Appellee contends that the notes are void under section 10, article IX, of the Constitution and the legislation enacted in conformity therewith. It reads as follows: “Any county, township, school district or other municipality incurring any indebtedness, shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years.” It is appellees’ contention that
at or before
any debt may be incurred (money borrowed by note or bond) an annual tax sufficient to pay the loan or debt within 30 years must be provided for, and that of course can only be done by a tax levy which does not in terms appear, and if the annual tax has not been provided for by the levying of some millage or amount the loan is void; that the municipality cannot later cure it no matter if such curing process be undertaken a day or nine years later. Such construction challenges the validity of many municipal bonds as well as loans and we are of opinion that it is a too drastic interpretation of the constitutional provision as to a procedural matter.
The Constitution does not grant the power to a municipality to incur indebtedness; the power comes from the
legislature; it is limited by section 8, of article IX, and regulated by section 10. The latter is a command to the township to provide, by the method therein specified, funds for the payment of an indebtedness, which the legislature authorized within the limitation of the Constitution. The municipality’s power is not therein affected, but rather its mode of exercise. The words “at or before” are mandatory, but there is no provision stating that any indebtedness of the city shall be void if such a tax is not provided at or before the incurring thereof. The section is an explicit and express command to subdivisions of government to perform a duty, a duty which may be enforced by mandamus: Com. ex rel. Hamilton v. The Select and Common Councils of Pittsburgh, 34 Pa. 496; East St. Louis v. Amy, 120 U. S. 600. The right to mandamus after money on a loan has been secured indicates that the duty imposed by the Constitution is a regulation of the exercise of the power and does not qualify the power itself: section 10 is purely regulatory. In Dillon on Municipal Corporations, 5th ed., volume 1, section 211, page 418, the author says: “The general construction put upon these provisions is that they are
qualifications and restrictions upon the power or mode of exercising the power
of municipalities to become indebted;...... We venture to observe that, so far as these and like decisions (see note for authorities) hold that the constitutional provisions quoted are mandatory, that they impose a duty upon the legislature in authorizing the creation of debt, to provide for the levy each year of a tax sufficient to pay the interest and to extinguish the principal at maturity, and that the duty thus imposed is absolute and may be enforced by mandamus or other appropriate remedy; their soundness is beyond question. But the Constitutions do not in general expressly provide that if the municipality does not at or before the time of creating a debt pass an ordinance levying such a tax, that such debt, if otherwise in all respects authorized and valid and for which the municipal
ity has received full consideration,
shall he void.
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Opinion by
Mr. Justice Kephart,
June 30, 1933:
Maidencreek Township, a township of the second class, on August 23, 1921, borrowed $6,000 for use in permanently improving a state aid road. It gave its note to the First National Bank of Leesport, which was renewed on November 29, 1921, and from time to time thereafter until July 20, 1930, from which date it remains due.
The property assessment within the township for tax purposes in 1921 was $1,266,378, and the debt is conceded to be within the two per cent constitutional limit.
Later on, in 1928, the township purchased a truck, and gave to the bank its note for $6,000. In that year and the following, 1929, the township paid on account of this note $3,000, leaving a balance due of $3,000. The bank thereafter applied money of the township on deposit in payment of the above balance.
At no time was the two per cent constitutional limit on indebtedness without the approval of the electors exceeded. No tax was levied at or before the time the foregoing transactions took place to provide for payment of the indebtedness.
On August 9, 1930, the Supervisors, by resolution, levied a tax to pay the $6,000 and $3,000 notes, authorizing the issuance of a new note in the sum of $9,000 as a “collateral” note.
The Secretary of Internal Affairs in accordance with the Act of 1927, P. L. 9, and its supplement of 1929, P. L. 516, approved the note. The $9,000 collateral note was then delivered to the bank; a tax was levied to pay the note as will later appear.
A taxpayer’s bill was filed to enjoin the township from paying any part of the $9,000 indebtedness. After hearing, the court below ordered the bank to repay the amount retained by it in payment of the 1928 note and declared that debt void. It also held that the note evidencing the indebtedness of 1921 was illegal and void, and constituted no valid obligation of the township. From this decree the bank has appealed.
In Georges Twp. v. Union Trust Co., 293 Pa. 364, it was stated at page 369: “The limitations on all municipalities to the power to create a debt or borrow money are as follows: First, there must be a lawful purpose for which the money is to be used or the debt created, and, second, the amount which can be borrowed is determined by reference to (a) the current revenues due or created within the year, and (b) the constitutional percentage authorized on the assessment value of property. The procedure necessary to give effect to the borrowing power is not an incident of the power, but a regulation for its proper exercise. The purpose for which money is to be used, or a debt is to be created, may be ascertained from the authorizing acts, or duty enjoined, or necessarily implied therefrom. In this case it is alleged that the notes were given for loans incurred for the repair and improve
ment of public roads. This is a proper purpose for which money can be borrowed, or a debt created, if the notes are valid obligations in other respects as well.”
The court below found that the purposes for which these loans were created, the permanent improvement of highways, and the purchase of equipment (the truck) for use in making and repairing the roads, were lawful: Act of July 14, 1917, P. L. 840, chapter VII, article I, section 381, clause VIII; Act of April 10, 1929, P. L. 470, section 1. However, it is not building of road or purchasing a truck that is here in controversy: it is the validity of the debts by which these purposes were accomplished that is in question.
The power of a second-class township to borrow money is found in the township code and other statutes, and is limited and regulated by the Constitution. Appellee contends that the notes are void under section 10, article IX, of the Constitution and the legislation enacted in conformity therewith. It reads as follows: “Any county, township, school district or other municipality incurring any indebtedness, shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years.” It is appellees’ contention that
at or before
any debt may be incurred (money borrowed by note or bond) an annual tax sufficient to pay the loan or debt within 30 years must be provided for, and that of course can only be done by a tax levy which does not in terms appear, and if the annual tax has not been provided for by the levying of some millage or amount the loan is void; that the municipality cannot later cure it no matter if such curing process be undertaken a day or nine years later. Such construction challenges the validity of many municipal bonds as well as loans and we are of opinion that it is a too drastic interpretation of the constitutional provision as to a procedural matter.
The Constitution does not grant the power to a municipality to incur indebtedness; the power comes from the
legislature; it is limited by section 8, of article IX, and regulated by section 10. The latter is a command to the township to provide, by the method therein specified, funds for the payment of an indebtedness, which the legislature authorized within the limitation of the Constitution. The municipality’s power is not therein affected, but rather its mode of exercise. The words “at or before” are mandatory, but there is no provision stating that any indebtedness of the city shall be void if such a tax is not provided at or before the incurring thereof. The section is an explicit and express command to subdivisions of government to perform a duty, a duty which may be enforced by mandamus: Com. ex rel. Hamilton v. The Select and Common Councils of Pittsburgh, 34 Pa. 496; East St. Louis v. Amy, 120 U. S. 600. The right to mandamus after money on a loan has been secured indicates that the duty imposed by the Constitution is a regulation of the exercise of the power and does not qualify the power itself: section 10 is purely regulatory. In Dillon on Municipal Corporations, 5th ed., volume 1, section 211, page 418, the author says: “The general construction put upon these provisions is that they are
qualifications and restrictions upon the power or mode of exercising the power
of municipalities to become indebted;...... We venture to observe that, so far as these and like decisions (see note for authorities) hold that the constitutional provisions quoted are mandatory, that they impose a duty upon the legislature in authorizing the creation of debt, to provide for the levy each year of a tax sufficient to pay the interest and to extinguish the principal at maturity, and that the duty thus imposed is absolute and may be enforced by mandamus or other appropriate remedy; their soundness is beyond question. But the Constitutions do not in general expressly provide that if the municipality does not at or before the time of creating a debt pass an ordinance levying such a tax, that such debt, if otherwise in all respects authorized and valid and for which the municipal
ity has received full consideration,
shall he void.
If the debt is void, the failure of the municipal officers to do their duty is visited upon third persons, although these persons can enforce such duty in the courts just as effectually as if the duty enjoined by the Constitution or by statute had been reaffirmed and redeclared in a municipal ordinance or resolution....... It is not essential, where an
ordinance
is not expressly required, that the municipality itself should make provision by ordinance for the levy of the tax, as the insertion of the direction in the enabling or other statute that a sufficient tax be levied gives the bondholder the right to enforce the levy by mandamus or other suitable remedy. This sound view will probably have the effect to modify prior decisions in several States which assert, or assume, or proceed upon the view that a resolution or ordinance for the levy of the tax is in all cases a sine qua non to the validity of the debt.”
The Act of 1874, P. L. 65, supplemented by the Act of 1915, was enacted to enforce the mandate of the Constitution: Campbell v. Wilkins Twp., 273 Pa. 204. Obviously its provisions were not complied with. Hence, the municipality was without lawful authority to issue its notes and they are, therefore, invalid and uncollectible : Bruce v. Pittsburgh, 166 Pa. 152.
The debt of the township, however, was a lawful one and the money borrowed was applied to a proper purpose : Boro. of Rainsburg v. Fyan, 127 Pa. 74. The purpose of the indebtedness having been legal, the constitutional provision limiting the amount of indebtedness not having been violated, although the township failed to follow the prescribed regulation to make the evidence of indebtedness valid, the one furnishing the money to the municipality is not to lose by this neglect, nor is the township to profit. The party so lending the money is entitled to recover in assumpsit, formerly on a common count for money had and received: Boro. of Rainsburg v. Fyan, supra. In that case the borough borrowed f 500
to pay the costs and fees in a lawsuit; it was less than two per cent of the assessed value. Two bonds with interest from date, of $250 each, were issued for this debt. No statement was filed in the office of the clerk of quarter sessions and the municipality did not “at or before” issuing the bonds provide for the collection of the taxes as required under article IX, section 10, and section 2, of the Act of 1874. It was held that the debt was lawful and the provisions of the Constitution mandatory. The opinion states:
“But one requisite is lacking. The Act of 1874, section 2, provides inter alia, that the statement to be filed shall show ‘the amount of the annual tax levied and assessed to pay the said indebtedness.’ As no annual tax was levied before or at the time of incurring the indebtedness, and no provision was made for the collection of an annual tax sufficient to pay the interest, and also the principal thereof within thirty years, the plaintiff, on inquiry made, and he was thrown upon inquiry, would necessarily learn that this was not done.
“The Constitution, article IX, section 10, provides [see above].
“The plaintiff in the absence of a statement...... must be taken to have known that the......Constitution, and the......Act of April 20, 1874, were not complied with in this regard. It follows, therefore, that the bonds were issued without authority, in contravention of the Constitution and the law, and hence there can be no recovery on the bonds.
“It is, however, not required that the statement, etc., be filed before incurring a lawful debt, but that it be filed before issuing bonds as security therefor. In this case the debt was a lawful debt, and less than two per cent......
“We are clearly of the opinion, therefore, that though the bonds are void, yet the debt which they were intended to secure was and is a lawful debt, recoverable by suit on the contract......”
In Long v. Lemoyne Boro.,
222
Pa. 311, the court says (pages 317 and 318) : “Though the bank cannot recover on the judgment note given to it, because the attempt to do so is an attempt to enforce an express contract which no one had been properly authorized to execute on behalf of the borough, there is an implied obligation resting upon the municipality to pay back what was lent to it in good faith.” See McQuillin on Municipal Corporations, 2d ed., volume 6, section 2509, page 257. Its legal obligation was to pay an honest debt. It had consistently recognized that obligation by its payment of interest. In an action against it for money had and received it would have been the duty of the court, under the facts as developed in this proceeding, to have directed a recovery. In Long v. Lemoyne Boro., supra, we said at page 318: “Municipal repudiation of honest indebtedness which the municipality intended to contract and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes [or the Constitution] prohibit the municipality from incurring any liability by implication.” See Aspinwall-Delafield Co. v. Aspinwall Boro., 229 Pa. 1.
The Board of Supervisors recognized the existence and justness of the indebtedness, and, on August 9, 1930, by resolution acknowledged that the money received had been expended for purposes of the township. The resolution authorized the issuance of a note of $9,000, bearing 6% interest per annum, payable in installments as follows:
“Sept. 6, 1930 Principal $2,000.00 interest $91.97 for which funds are provided for June 6, 1931 Principal $2,000.00 interest $315.00'
June 6, 1932 “ 3,000.00 “ 300.00
June 6, 1933 “ 2,000.00 “ 120.00”
They further did whát should have been done when they received the money, levied a tax for its payment.
Section 5 of this resolution levied and assessed an annual property tax to provide the revenue to meet the installments as they fell due. The Court of Quarter Sessions of Berks County had previously, on March 12, 1930, on the petition of the supervisors, allowed a levy of 13 mills for road taxes with the express stipulation that $3,000 of the anticipated increase in the revenue of $4,200 be paid to satisfy these existing debts.
While the $9,000 note was issued to the bank as a collateral note to secure a valid indebtedness evidenced by invalid notes, we are unable to discover any defect in the procedure that supports the collateral note. A valid indebtedness existed. The township recognized this and in compliance with the Constitution and statutes issued valid evidence of its debt. That it called the note “a collateral note” cannot affect its legal force. If it is a collateral note for a lawfully existing debt, its holder may recover on it. The bank is in the same position it would have been had no note ever been issued prior to this one for $9,000, but a valid indebtedness had been kept alive by the payment of interest. It was issued with all the formalities and in accordance with all the requirements of the law. Upon it recovery may be had. We can see nothing which prevents their acts from having their intended effect: School Dist. v. Lamprecht Bros. Co., 198 Pa. 504. See Bell v. Waynesboro Boro., 195 Pa. 299.
If we were to hold strictly to the line of appellees’ contention, then our decision in Rettinger v. Pittsburgh School Board, 266 Pa. 67, and the suggestion contained in Southmont Boro. v. Upper Yoder Twp., 284 Pa. 287, would be wrong, for in each case where the indebtedness had been increased beyond
2%
without securing the assent of the electors, they also had the further fatal defect of not providing “at or before” the incurring of the indebtedness the annual tax required by the Constitution. The “at or before” provision was considered in Potters Nat. Bank v. Ohio Twp., 260 Pa. 104 (see also
Schilling v. Ohio Twp., 260 Pa. 114), and the present Chief Justice said that the ordinary tax levy, though not earmarked, would be sufficient to take care of the indebtedness within 30 years, though no formal resolution to that effect appeared in the case. Here there was a
7y2
mill tax placed, and if we should follow the suggestion in that case it would have been adequate to pay interest and indebtedness within 30 years, but we do not rest the decision on this consideration.
With regard to the purchase of the truck in 1928, it was a current expense and was authorized by section 420 of the Township Act of 1917. The purchase was approved by the Secretary of Highways, and it was not necessary to submit it to the Secretary of Internal Affairs for approval. After a careful summary of this record, we conclude that the indebtedness incurred in the purchase of the truck is a valid one and within anticipated revenues. The bank was within its rights in charging against the township’s funds in its possession the amount of |3,201 as it did.
The decree of the court below is reversed, with costs to be paid by Maiden Creek Township.