Commonwealth v. Barker , 211 Pa. 610 ( 1905 )

Opinion by

Mb. Chief Justice Mitchell,

The petition for mandamus asked for the writ against the city treasurer and the city clerk jointly. These officers, however, have separate duties and are in no wise responsible for each other. The writ asked for therefore was clearly ir-. regular, and could not be granted. But appellant has now with leave amended its petition and the subsequent proceedings by striking out the name of the city clerk, and electing to proceed against the city treasurer alone.

The ordinance in question was a valid and sufficient appropriation of the fund to the use of appellant, at least for the current year of its passage. The treasurer is directed to enter the sum received from the state under a special account and to report the amount annually to the city clerk who is directed to issue warrants therefor in favor of the appellant. All the essentials of a valid appropriation are here, and in the absence of a constitutional or legislative restriction as to form the city councils may put their mandate in any form they choose. All that is necessary is that the language should clearly express their intent to make an appropriation: Com. ex rel. v. Gregg, 161 Pa. 582.

It is contended that the ordinance if regarded as an appropriation for future years contravenes art. VI, sec. 10 of the Act of May 23,1889, P. L. 277, requiring councils to make annual appropriations. The several departments of the city government are required to make report before the commencement of each fiscal year of the probable receipts and expenditures, and councils are prohibited from making appropriations for other purposes, until the “ necessary expenses ” of the city are provided for. On the other hand, it is argued that this restriction is intended to apply only to ordinary annual expenses, and that in the present case there is not the creation of any city debt or obligation beyond its current income, as the appropriation is only of so much as the city may receive each year from the state. As the ease is to be decided on other grounds we express no opinion on this point.

The objection that the ordinance is in violation of article IX, section 7, of the constitution prohibiting municipal appropriations for “ any corporation, association, institution or individual ” is not tenable. The history and scope of that provision of the constitution are fully and clearly set forth in Com. ex rel. Police Pension Fund Assn. v. Walton, 182 Pa. 373, where it was said by the late Chief Justice Sterrett that “ no strictly legitimate municipal purpose was intended •to be prohibited,” and if councils “were satisfied, as they doubtless were, that the distribution of the fund would'be better effected through the agency of the association than by an agency of their own creation, they had a right to so provide.” This language could not have been more appropriate to the case at bar if it had been written for it. The protection of the city from fire is a municipal function of the highest importance, and as said in the case just cited ‘‘ a judiciously administered pension fund is doubtless a potent agency in securing the services of the most faithful and efficient class of men.” At the time of the passage of the ordinance the city had no paid fire department and the appellant association was performing that part of the city’s municipal functions. The fact that it was doing so voluntarily did not make it any the less eligible for appointment as the city’s agent in that regard.

Notwithstanding these considerations favorable to the appellant, we are obliged to affirm the judgment on the ground that the ordinance has been repealed. The learned judge below held that the appropriation to the appellant by the ordinance, even if a valid appropriation, was only a gift so far executory that it was revocable at any time before actual payment of the money, and the repeal terminated the donee’s rights whatever they had been before. "The ordinance, however, was not repealed, until October 24,1903, after the institution of this suit, and appellant contends that at least as to the previous years the repeal could not affect its rights. This question can only be decided in a direct issue between the appellant and the city. The present proceeding is a mandamus to the respondent as city treasurer, to perform a duty claimed by appellant to be ministerial and imperative belonging to his office. But at the time judgment was aslced against the respondent there was no such duty upon him. It existed only by virtue of the ordinance and the ordinance was no longer in force. Whether the city could terminate appellant’s rights by the repeal can only, as already said, be settled in a suit directly against it, but respondent cannot be commanded in this proceeding to perform a duty which no longer exists. Whatever appellant’s rights may be, therefore, they cannot be enforced in this form of action. The judgment must be affirmed on this ground.

Judgment affirmed.