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indebtedness set forth in section 1, an elec-the city the question of the proposed in

tion shall be held in pursuance of the act of June 9, 1891, at the usual places of holding elections, at the election to be held on the third Tuesday of February, 1910, that notice of said election shall be given by the corporate authorities of the municipality by weekly advertisements, in not exceeding three newspapers of the said city, during at least thirty days prior to the said election, and the said notice shall contain a statement of the amount of the last assessed valuation of the taxable property of the said city, the amount of the existing debt, the amount of percentage of the proposed increase and the purpose for which the indebtedness is to be increased, and the city commissioners are hereby authorized and directed to prepare and distribute the necessary ballots as provided for in the laws of the state of Pennsylvania governing the increase of indebtedness of municipalities."

In pursuance of the provisions of the second section of this ordinance, notice of the election which the ordinance directed should be held upon the third Tuesday of February, 1910, was given, by advertisement, in three newspapers in said city. These advertisements began on January 22, 1910, and were continued for four weeks. In the notice the amount of the last assessed valuation of taxable property in said city was stated to be $1,388,675,057. The existing net debt was stated to be $84,901,620.22. The amount of the proposed increase of indebtedness was stated to be $8,000,000. The percentage of the proposed increase of the indebtedness to the amount of the last assessed valuation of the taxable property of the said city was stated to be .0057422760/694337. The purposes for which the indebtedness of the city was proposed to be increased were stated to be the same as those which are set forth in the first section of the ordinance. At the election held on the third Tuesday of February, 1910, a majority of the electors voting on the question of the increase of the indebtedness voted in favor of such increase.

The court dismissed the bill on the ground of the insufficiency of the notice and the failure of councils to signify by ordinance or vote its desire to increase the debt of the city.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

James Alcorn, City Sol., and John G. Johnson, for appellants. Thos. Raeburn White and Robert D. Jenks, for appellees.

crease.

New municipal indebtedness may be incurred and existing indebtedness increased to an amount exceeding 2 per centum upon the assessed valuation of property only with the assent of the electors of the municipality obtained "at a public election in such manner as shall be provided by law." These words of the Constitution are always to be borne in mind in passing upon the validity of an election authorizing the creation of new or the increase of old municipal indebtedness. The assent of the electors is to be obtained at a public election and in such a manner as the Legislature may direct. This clause in the Constitution was not selfoperative, and there was imposed upon the Legislature the duty of declaring the manner in which new municipal indebtedness may be incurred or an existing one increased. When, therefore, the Legislature directs the manner in which this may be done, its words must be regarded as mandatory, for in no other manner can the municipality act in incurring new or increasing old indebtedness. If it attempts to do so in any other way than that pointed out by the Legislature, the plain duty of the proper court, when appealed to, is to enjoin it, else the safeguard which the people have provided for themselves in their organic law will be no shield to them against municipal recklessness and improvidence. To hold municipal authorities to strict compliance with constitutional and legislative requirements involves no measure of hardship or inconvenience. On the other hand, it is easy to observe them, and, when they are plainly laid down as rules of municipal action, departure from them is almost certain to be followed sooner or later by trouble of some kind. Public authorities ought to understand this, especially after the repeated efforts of courts to enlighten them; and, when the requirements of the Constitution and the statutes are disregarded, it becomes the plain duty of courts to enforce them.

[1] The first legislation after the adoption of our present Constitution, directing what must be done by a municipality when contemplating an increase of its indebtedness to an amount exceeding 2 per centum and not exceeding 7 per centum upon the last preceding assessed valuation of the taxable property within the municipal limits, was the act of April 20, 1874 (P. L. 65). That act provides that whenever the corporate authorities of any city shall, by their ordinance or vote, have signified a desire to make an increase of municipal indebtedness, they shall give notice of a public election to be held for the purpose of enabling the electors to pass upon the question of the proposed increase. The first step, then, to be taken by a municipality, if its indebtedness is to be lawfully increased, is action by its

BROWN, J. This appeal comes from a decree of court of common pleas No. 4 of the county of Philadelphia, enjoining an increase of the indebtedness of the city of Philadelphia, because two statutory requirements were disregarded by the municipal authorities in submitting to the electors of authorities in the case of a city, by its councils-indicating their "desire to make | ordinary elector upon whatever affects the

such increase of indebtedness," and such action must be taken by them "by their ordinance or vote." These words, which are repeated in the Acts of June 9, 1891 (P. L. 252), and May 1, 1909 (P. L. 317), are not merely directory. They are mandatory, for the constitutional mandate is that municipal indel tedness shall not be increased to an amount exceeding 2 per centum without the assent of the electors of the municipality, obtained "at an election in such manner as shall be provided by law." The law provides that, before any such election can be held, notice of it is to be given by publication for at least 30 days; but, before such notice can be given, another requirement is that the corporate authorities "shall have signified a desire to make such increase of indebtedness." The words of the act are, "whenever the corporate authorities of the city shall have signified" such a desire, they may then give the notice directed by the act, and, as still more clearly indicating the legislative intent that such action must first be taken, is the provision that the election shall take place on the day of the municipal or general election "unless more than ninety days elapse between the date of the ordinance or vote desiring such increase and the day of holding the said municipal or general election." The question of the necessity of compliance by a municipality with the requirement of an expression by its authorities of a desire for the increase of indebtedness was considered and passed upon in Hoffman v. Pittsburg, 229 Pa. 36, 78 Atl. 26, where we said, inter alia: "In view of

this foregoing clear statutory provision, twice

repeated, the first step to be taken by a municipality in undertaking to increase its indebtedness is action by its corporate authorities, by ordinance or vote, expressive of their desire that the increase shall be

made. With the wisdom of this legislation

*

*

courts have nothing to do.
* The
constitutional requirement is that municipal
indebtedness is to be increased to an amount
exceeding two per centum upon the assessed
valuation of taxable property only with the
assent of the electors at a public election in
such manner as shall be provided by law,
and the statutory provision is that, before
such election can be authorized by the mu-
nicipal authorities, they must first act by
giving expression, by ordinance or vote,' of
their desire for the increase. If it were our
province to pass upon the wisdom of this
provision, we would commend it. To the
select and common councils of a city, as
their representatives, its electors commit the
direct supervision of the municipal affairs
and what ought to be done or not done by
the city should always, in the first instance,
be passed upon by those whose special du-
ties are to inform themselves as to the mu-
nicipal needs and who are presumed to be

welfare of the municipality. Councils are deliberative bodies, possessing means not possessed by the electors generally of obtaining knowledge upon every subject relating to the welfare of the city, and the statutory requirement that they first signify their desire for an increase of indebtedness gives to the electors whom they represent the benefit of their deliberate judgment, after duly considering the necessity of making improvements and the cost thereof, that the increase ought to be made."

Neither by ordinance nor vote did the councils of the city of Philadelphia express their desire that the indebtedness of the city should be increased. What they did was to ordain "that the debt of the said city shall be increased in the sum of eight million ($8,000,000) dollars," and in the same ordinance proceeded to direct that an election should be held. But where did they get any authority to ordain that the said indebtedness should be increased? Their enactment was but a dead letter, for they were utterly powerless to increase the indebtedness before the electors of the city, in the manner provided by law, had au

thorized them to do so. And these electors could not have given them such authority until they, as the representatives of the electors, had, by ordinance or vote, as required by the statute, publicly expressed their desire for the increase. But we need not dwell further upon this feature of the case, as it is sufficient to know that the Legislature has provided that a condition precedent

to the right of municipal authorities to sub

mit to the electors the question of an increase of municipal indebtedness is an expression by the authorities, in council assembled, of their desire that the increase be made; and, as this is a legislative requirement, it must be complied with. Hoyt v. East Saginaw, 19 Mich. 39, 2 Am. Rep. 76. In that case the charter of the city provided that the common council should have full power to make necessary public improvements, directing, however, that, when they should deem any such improvement necessary, they should so declare by resolution. A petition was presented to them for the grading of a certain street, and they resolved "that the petition be received and the improvement be ordered." The charter of the city merely required that, when the common council deemed any improvement in the streets or highways necessary, they were to so declare by resolution; but there was nothing in the charter expressly directing that such resolution should precede the passage of an ordinance directing the improvement to be made. Nevertheless, the very learned Cooley, C. J., in holding that such precedent resolution was necessary, said: "It may seem perhaps that the Leging from the council an express preliminary of the last assessed valuation of property. declaration that they deem the improvement The election in this case was held on the necessary, when the fact that they order it to be made is evidence that such is their opinion; and it has ben argued in this case that the resolution of June 11, 1866, ought to be accepted as equivalent to the one made necessary by the charter, and as a sufficient

third Tuesday in February, 1910. The notice given to the electors that it would be held on that day was first published on January 22, 1910. In this notice the assessed valuation of property within the city was stated to be $1,388,675,057. Where or

compliance with the legislative requirement. how these figures were obtained is utterly count, has not been asked or given an oppor-ceived the same up to the time of her death.

*

* *

It is evident, however, that, if we hold this resolution sufficient, we also hold that the provision cited from the charter is idle, and one a compliance with which may be dispensed with in any case. We have no authority to treat any part of a legislative enactment which is not ambiguous in itself and is capable of reasonable application, as so far unimportant that it is a matter of indifference whether it is complied with or not. We must suppose the Legislature saw sufficient reason for its adoption, and meant it to have effect; and, whether the reason is apparent to our minds or not, we have no discretion to dispense with a compliance with the statute. The declaration of the necessity for the improvement is a distinct act from and precedes the order that the improvement shall be made. It is the commencement of the proceeding and is as indispensable to give the council jurisdiction as is process of the voluntary appearance of parties in civil actions to give jurisdiction to a court. It is the first of several steps, which if duly and regularly taken may result in fixing a lien upon the property of the citizen, and even in depriving him of it against his will. This step having never been 'taken, the whole proceeding is a nullity." The rule as laid down in Hoffman v. Pittsburg, 229 Pa. 36, 78 Atl. 26, that the expression of desire by councils is to be by a separate and independent ordinance or vote, will not be pared down, and the disregard of this statutory requirement by the councils of the city of Philadelphia called, without more, for the injunction issued by the court below.

[2] Keeping in mind that the right of the city to increase its indebtedness is to be exercised only as the statutes direct, we come to the second reason given by the learned court below in declaring the propos. ed increase invalid. The act of April 20, 1874, passed to give effect to the eighth section of article 9 of the Constitution, provides that municipal indebtedness may be increased to an amount exceeding 2 per centum, and not exceeding 7 per centum, upon the last preceding assessed valuation of the taxable property within the municipality, and a requirement of the act is that, before an election can be held to pass upon the proposed increase, 30 days' notice of it must be given to the electors, which notice must contain a statement of the amount

immaterial, if they were not those of the last preceding assessed valuation of property. Under Elliot v. Philadelphia, 229 Pa. 215, 78 Atl. 107, the last preceding assessed valuation which could have appeared in the notice of the election published on January 22, 1910, was the assessment finally adjusted on or before February 1, 1909, and that was $1,376,645,955. These figures were accessible to the municipal authorities, and nothing was to be substituted for them. As stated, it is immaterial where the figures $1,388,675,057 were obtained. They are $12,000,000 in excess of the assessed valuation which was to guide the electors in voting. For this discrepancy, which the law will not permit, the city must start afresh if its indebtedness is to be increased.

The assignments of error are overruled, and the decree affirmed at the cost of the city of Philadelphia.

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1. EXECUTORS AND ADMINISTRATORS (§ 35*)

REMOVAL OF EXECUTOR-JURISDICTION.

Where there is pending at one time in the orphans' court an appeal from the probate of a will, an application for an issue devisavit vel non, and a petition for appointment of an administrator pendente lite, it is proper to pass upon the petition for appointment first and to appoint an administrator pendente lite, if warranted, and it is irregular practice, though not reversible error, to order all matters relating to such issues to be heard together, but if, in dismissing the appeal, application, and petition, the court at the same time decrees the removal of the executor upon the mere motion for re

moval, after all the testimony is in and the court has refused to expunge averments in the petition relevant only upon the validity of the will and without bearing upon the removal of the executor, the decree of removal will be reversed; the executor having been deprived of an opportunity to meet and answer fairly any direct issue involving his peremptory removal

as executor.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 227-262; Dec. Dig. § 35.*]

2. EXECUTORS AND ADMINISTRATORS (§ 35*)— REMOVAL OF EXECUTOR-ORDER TO TURN OVER ASSETS PENDING APPEAL.

The orphans' court, pending an appeal from an order removing an executor, is not justified in making a peremptory order upon the executor to deliver over the assets to an administrator appointed in the meantime, where the executor has had no time to file an ac

tunity to enter security, has not been charged with embezzlement, and is ready to render an

account.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 227-262; Dec. Dig. § 35.*]

3. APPEAL AND ERROR (§ 465*) - SUPERSE

DEAS.

In fixing the amount of the bond to make an appeal from an order removing an executor a supersedeas, the orphans' court should not include in the amount of the bond the value of the real estate, where the executor had surrendered all the personal assets, except household goods and effects, though the income from the realty may be included.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2235-2240; Dec. Dig. § 465.*]

Appeal from Orphans' Court, Washington County.

Proceedings for settlement of the estate of Nancy W. Kuntz. From decrees removing R. C. McConnell, as executor, etc., he appeals. Reversed, with directions.

Petition for appointment of an administrator pendente lite. The facts are stated in the opinion of the Supreme Court.

Paragraphs 5, 6, and 11 of the petition asking for the appointment of an administrator pendente lite were as follows:

"(5) That the husband of Nancy W. Kuntz died more than 10 years prior to her death, and that his will was duly admitted to probate and R. C. McConnell was one of the executors of said will and settled said estate, and, according to the reports filed by him, he paid, at the time of the settlement of said estate about 10 years ago, to the said Nancy W. Kuntz, $75,000 in cash and securities, and that under said will she became invested with the title to certain real estate which she still held at the time of her death; that the said Nancy W. Kuntz was at that time about 65 years of age and had no children, and lived alone in the city of Washington, except that at times she had a servant; that she was in no manner familiar with business and had transacted no business of any consequence during her lifetime and up to that period; that the said R. C. McConnell, whose office was a few doors from her residence, succeeded in establishing himself in the confidence of said Nancy W. Kuntz, and thereafter and up to the time of her death handled all her busi

"(6) That, as aforesaid, she received from the estate of her husband, about 10 years ago, the sum of $75,000 in cash and securities; that she was frugal and saving and lived very modestly, and spent only such sums as would purchase the mere necessaries of life, and, as petitioner believes, she did not expend more than the sum of $1,000 per year for living expenses."

"(11) The petitioner shows the court that as charged in the petition of said Samuel Workman, who is contesting the will, the said R. C. McConnell drew said will, being the attorney and confidential adviser on legal and business matters for the said Nancy W. Kuntz during her widowhood, and that he drew said will in such manner that under its provisions he receives the sum of from $50,000 to $60,000; that said bequest under which he can derive this sum is not made openly and in such manner that the language can be understood by an ordinary person, but that his right to receive such money is veiled and covered under technical language copied from Beck's App., 116 Pa. 547, 9 Atl. 942, such language being as follows: Twenty-first: After the payment of all the foregoing legacies or bequests, expenditures and all other expenses of the carrying out of the provisions of this my last will and settling my estate considering those of my relatives, just and liberal, I do hereby give and grant unto my executor hereinafter named full and unlimited power and authority to appropriate or dispose of all the rest, residue and remainder of my estate, real and personal, or the proceeds arising from the sale thereof to such objects, persons or institutions as in his direction shall be best and proper, as I have full confidence in his judgment, ability and integrity in the premises.' That the said R. C. McConnell is then named as executor, and under the said language and the decision of the Supreme Court aforesaid he became vested with the full power to appropriate all of the residue of said estate, amounting to from $50,000 to $60,000, as aforesaid, based upon the property actually inventoried, and this petitioner charges that the said will was drawn as part of a scheme to defraud the heirs of the deceased, and that upon the whole record the said R. C. McConnell is not entitled to continue as ex

ness, making investments, transferring se-ecutor of said estate pending the will con

curities, collecting money, disbursing money, and in fact doing everything that there was to be done in the transaction of her business, she simply signing papers from time to time under his direction and signing checks in blank, under which he received or paid out money from her account in the bank; that he had absolute control and domination of the will of the said Nancy W. Kuntz, and transacted all of said business and handled all of said securities from the time she re

test, but that he should be removed and a special administrator be appointed, until the rights of the parties have been determined; that in view of his relations with the testator, and the fact that he has handled the business in the manner stated, there is a necessity for an accounting between himself and said estate, and that he should not be permitted to act as such executor, at least until all questions between the said estate and himself have been fully adjudicated."

On a motion to expunge the above paragraphs, McIlvaine, P. J., filed the following opinion:

"The exceptions filed in this case aver that paragraphs 5, 6, and 11 of the petition filed by S. W. Fairall in this proceeding are impertinent and scandalous, and the except ant moves the court to expunge the same from the record for that reason; and he also alleges that S. W. Fairall is a nonresident of this state, and moves the court for an order requiring him to file a bond in a proper sum, with sufficient sureties, conditioned for the payment of all the costs that he may be ordered to pay in this proceeding.

"The principal complaint of the exceptant under the first motion that he has made is that the present proceeding is intended by the petitioner to 'obtain in advance of a hearing in the contest upon the will, the case to be made out by the proponents of the will.' He states that the averments as contained in the fifth, sixth, and eleventh paragraphs of S. W. Fairall's petition are substantially the same as contained in the petition for an issue devisavit vel non in this court, at No. 48, November term, 1907, and that he had already answered these averments in that proceeding, and that a hearing will have to be had upon the issue raised by the averments and the answer filed; and he in addition avers that he is perfectly willing and ready to answer them in this proceeding, if the court decrees it necessary. This presents two questions: First, are the allegations contained in the fifth, sixth, and eleventh paragraphs of the petition filed in this proceeding irrelevant to the questions which the court will have to decide in determining whether the petitioner is entitled to the relief he prays for? A careful read ing of the petition has satisfied us that they may not be wholly irrelevant, but that the facts therein alleged, if true, might throw some light upon the conduct of the executor since letters of administration were issued to him. We therefore overrule the motion to expunge from the record these three paragraphs of the petition.

"The second question for our consideration under this motion is whether or not the investigation in this citation can be made in any way to prejudice the investigation in the proceeding to No. 48, November term, 1907, wherein an issue devisavit vel non is sought. We are of the opinion that this can be avoided by the court controlling the manner, the time, and place of taking the testimony in the two proceedings; and when the time comes for the appointment of an examiner to take testimony in this citation, if it is the desire of the exceptant, we can direct the testimony to be taken before the same person that takes the testimony in the rule for an issue, and direct, also, that the examination of witnesses in support of the three paragraphs to which objection is here

tion for an issue, shall be taken at one and the same time in duplicate, so that it can be reported separately with the testimony that is filed in each case.

"As to the motion for security for costs, it will be remembered that the petitioner as yet has had no opportunity to be heard on that question, and any order that we make should be conditional, so as to allow him an opportunity to be heard, and we have filed an order in that form.

"And now, January 13, 1909, the exceptions to the petition of S. W. Fairall herein filed came on to be heard and were argued by counsel, whereupon, upon due consideration, the motion of the exceptant to expunge from the record paragraphs 5, 6, and 11 of said petition, because impertinent and scandalous, is overruled and said exceptions dismissed at the cost of the exceptant."

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELLIN, STEWART, and MOSCHZISKER, JJ.

John C. Bane, Boyd Crumrine, and F. S. Monnett, for appellant. R. W. Knox and Martin J. Wade, for appellee.

ELKIN, J. [1] These two appeals have been argued and will be considered together. The first is from the decree removing appellant from his office as executor, and the second is from a later decree, which, in order to avoid an attachment for contempt, required the removed executor to deliver and pay over to his successor all of the unadministered assets, without first giving him an opportunity to file his account as executor and of having it audited in an orderly and proper manner. Both appeals grow out of the same proceeding and may very properly be considered together.

As to the removal of appellant as executor. it is earnestly contended that the proceed ings were irregular and in violation of the statutes, as well as of the rules of pleading and practice in such cases. The proceedings may be fairly criticised as being irregular, certainly out of the ordinary in dealing with such matters, but we cannot agree that they were in violation of any statute. The controversy is between those representing the next of kin of the testatrix and her executor, who for many years had been her counsel and business adviser. An appeal from the probate of the will was pending when the petition which is the foundation of the present appeals was presented. After the appeal had been taken from the probate of the will, application was made for an issue devisavit vel non. While the appeal from the probate of the will and the application for an issue devisavit vel non were pending in the orphans' court, one of the contestants presented his petition, asking for the appointment of an administrator pendente lite. The ground for asking such an appointment was

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