Stegmaier v. Goeringer , 218 Pa. 499 ( 1907 )

Opinion by

Mr. Justice Elkin,

The custom, of commemorating important historical, military and civil events is as old as mankind, and at common law the right of municipalities to make appropriations out of the public funds for the proper observance of such occasions was recognized for centuries. There is no reason why a municipality, unless restricted by statute, should not be permitted to make reasonable appropriations in order to fitly commemórate public events in which all of the citizens thereof are, or should be, interested. The general welfare clause of the Act of May 23, 1889, P. L. 277, relating to cities of the third class, instead of limiting the inherent powers of municipalities in this respect, is broad enough to confer the express power to make an appropriation for the commemoration of events of great public interest in such a manner as to promote the general welfare of the city and advance its trade, commerce and manufactures. It must not be understood, however, that because in a proper case, and for a proper purpose, a municipality has the power to make such an appropriation it can do so without any limitations or restrictions. The general rule that a public corporation cannot make a contract to provide an entertainment for its citizens or guests is freely conceded ; also that it is not within the power of cities of the third class to make appropriations for expenses incurred in providing refreshments, entertainments and dinners for delegates to a convention; or for entertaining guests at a supper or ball; or, indeed, for the purpose of extending hospitality or furnishing social pleasures either to citizens or invited guests. While these limitations have been very properly imposed upon municipalities, it does not follow that they do not have the power to make an appropriation to fittingly decorate and otherwise ornament the streets and public buildings, and to provide suitable conveniences for the accommodation of the public in the enjoyment of the ceremonies incident to the occasion. Whether this be considered an inherent common-law power of every municipality, or whether it comes within the purview of the general welfare clause of the act of 1889, the result is the same in so far as cities of the third class are concerned. In the exercise of this power the rule should be observed that moneys appropriated for these purposes should be expended under the supervision and direction of the proper officer or department of the city government, and that bills should be presented, vouchers filed and the accounts audited in the same manner as is provided by law for the expenditure of other public funds. It is true that in Commonwealth v. Pittsburg, 183 Pa. 202, it was held that the city could appropriate money to a committee of private citizens to be used for a purpose intended to promote the general welfare of the people. Under the authority of that case it cannot be doubted that a city may, under certain circumstances, and for proper purposes, make an appropriation to a committee of private citizens acting for the general welfare of the inhabitants of the municipality. This is an extreme exercise of municipal power which should be carefully guarded, and when exercised the committee of private citizens should present bills and vouchers showing for what purpose and how the moneys were expended, and these accounts should be examined and audited before warrants are drawn for their payment. The safer rule is to require the moneys thus appropriated to be expended by the proper official or officials of the city government, and the bills and vouchers should be presented for payment in the regular and ordinary way. While we recognize the power of councils of the city of Wilkes-Barre to make an appropriation for the general purpose indicated in the ordinance, the contention of appellant cannot prevail in this case for the reasons hereinafter stated.

The relator seeks to compel'by mandamus the appellee to countersign a warrant drawn upon the city treasurer in the lump sum of $5,000. The remedy by mandamus is a strictly legal one, and the relator must establish a specific legal right as well as the want of a specific remedy in order to sustain such a proceeding: James v. Bucks County, 13 Pa. 72; Commonwealth v. Henry, 49 Pa. 530; Commonwealth v. Thomas, 163 Pa. 446; Commonwealth v. James, 214 Pa. 319. When a private relator seeks to compel by mandamus a public official to perform an alleged duty, the burden is on him to show that he has performed every prerequisite condition necessary to compel such action, and that it has been refused by the public official. This is true whether the duty to be performed is ministerial or discretionary, for even if the duty is ministerial the private relator must show that he has placed himself in a position to legally demand the performance of the duty, and after making demand it was refused, before he is in a position to ask the intervention of the court to compel the performance of the alleged duty.

Let us apply these principles to the facts of the present case. If it be conceded that the city councils had the power to make an appropriation for the general purpose stated, the moneys so appropriated must be expended and accounted for according to law. It will not do to say that city councils have the power to make a general appropriation of $5,000 to be advanced to a committee of private citizens before any expenses are incurred or bills paid, and that there need be no accounting to the city controller, or any other public official for the moneys so appropriated. "When public moneys are appropriated for this purpose, as well as for all other purposes, bills should be presented and vouchers filed, in order that the city controller may pass upon the rectitude of the claims thus presented before he countersigns the warrant upon the city treasurer: Runkle v. Commonwealth, 97 Pa. 328. And this is true even in a case where the right of a city to appropriate money to a committee of private citizens has been recognized : Commonwealth v. Pittsburg, supra. The relator in his petition averred in substance that a “ lawful ordinance ” had been passed by select and common councils and approved by the mayor March 24, 1906, making an appropriation of $5,000 for a certain public celebration to be held on the tenth, eleventh and twelfth days of May of that year ; that a “ lawful concurrent resolution ” was passed by councils and approved by the mayor on April 25, 1906, authorizing a warrant in the sum of $5,000 tobe drawn in favor of the appellant, treasurer of the general centennial jubilee committee, to be expended for decorations; and on the day the concurrent resolution was approved by the mayor, the relator demanded of the city controller that he countersign a warrant on the city treasurer for the whole amount so appropriated. It is apparent that at the time the demand was made upon the city controller no moneys had been expended for the purpose designated, and it is not averred that bills or vouchers had been presented to the city controller in order that he might pass judgment upon the expenditures before countersigning the warrant. It does not appear in the pleadings that either at that time, or any subsequent time, bills and vouchers were presented to the city controller in order to inform him for what purpose and in what manner the moneys were expended, so that he might act intelligently in countersigning the warrant. Clearly, therefore, the relator has not shown such a specific legal right, nor has he performed all the prerequisite conditions necessary to demand of the city controller the countersigning of the warrant so that a proceeding by mandamus may be maintained by him upon the refusal of the city controller so to do. The respondent in his answer denies that the “ ordinance was lawful; ” or that the “ concurrent resolution was lawful; ” or that the order drawn upon the city treasurer was lawful; or that it was his duty to countersign the warrant. The pleadings are argumentative, and in the averment of facts state conclusions of law drawn from facts not set out in the record, and which cannot be properly reviewed on this appeal. The record does not contain a copy of the ordinance, or of the concurrent resolution, or of the bills and vouchers, and is silent on the question whether bills and vouchers had been presented for approval by the controller. It seems clear, therefore, that as the record stands the relator is not entitled to a peremptory writ of mandamus.

Assignments of error overruled and decree affirmed.