Opinion
April 20, 1954.
June 28, 1954.
Municipalities — Abatement of pollution — Sanitary Water Board — Order directing borough to erect sewage treatment plant — Requesting borough to issue non-debt revenue bonds — Preliminary objections — Act of June 22, 1937, P. L. 1987.
Where, in a proceeding in mandamus to enforce an order of the Sanitary Water Board directing the defendant borough to erect a sewage treatment plant, it appeared that defendant did not have the necessary funds available under the first two methods prescribed by § 210 of the Act of June 22, 1937, P. L. 1987 (which relates to municipal financing of pollution abatement), that the borough electors had voted against an increase in indebtedness sought by the borough under the third method of § 210, and that defendant had not been requested by the Sanitary Water Board to issue non-debt revenue bonds, as provided in the fourth method under § 210; and that the court below sustained the defendant's preliminary objections to the complaint, without prejudice to the right of the Board to request the borough to issue non-debt revenue bonds and, upon noncompliance, to again file its complaint in mandamus; it was Held that the order of the court below should be affirmed.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 54, Jan. T., 1954, from order of Court of Common Pleas of Montgomery County, Nov. T., 1952, No. 264, in case of Commonwealth of Pennsylvania ex rel. Robert E. Woodside, Attorney General v. The Borough of Bridgeport, Montgomery County et al. Order affirmed.
Mandamus proceeding.
The facts are stated in the opinion, by CORSON, J., of the court below as follows:
The complainant brings his complaint in mandamus to enforce an order of the Sanitary Water Board of the Commonwealth of Pennsylvania.
Without going over each paragraph of the complaint it is sufficient to say that the complaint sets forth the fact that the defendant Borough and the authorities thereof have been ordered by the State Sanitary Water Board to build a secondary sewage plant for the treatment of the borough sewage before discharging such sewage into the Schuylkill River.
The complaint sets forth the issuance of such order, alleges non-compliance and seeks to have such order enforced through an order of this court.
To this complaint the defendants filed preliminary objections in the nature of a demurrer. The relator thereupon filed a motion to dismiss preliminary objections Nos. 7, 8, and 9, and supplementary preliminary objection No. 1, which alleges that this court lacks jurisdiction of the subject matter. As to the latter motion, it is sufficient to say that while the original order has become a final order because of failure to appeal to the Dauphin County Court within the prescribed time, yet the main contention of the defendants in the present case has nothing to do with the power of the Board to issue the order or the propriety of the order itself.
Without taking up each of the objections separately, which we feel would unnecessarily lengthen this opinion, we feel that the defendants' main contention is that the plaintiff, or at least the Sanitary Water Board, must comply with Section 210 of the Act of 1937, P. L. 1987. Many of the preliminary objections allege facts which perhaps should not be set forth in such a pleading because such allegations violate the rule against so-called "speaking" demurrers. However, for practical purposes and to prevent further delay, it may be that such facts should be at least discussed since at the argument counsel for the plaintiff admitted such allegations to be true.
We assume, therefore, for the purposes of this case, that the order to erect the sewage treatment plant was properly issued and admittedly has not been complied with by the defendants. It is the contention of the plaintiffs that this is sufficient to warrant this court in issuing an order directing such compliance. However, the questions here raised would immediately be raised again in any contempt proceedings brought against the Borough authorities to enforce such order.
The defendants contend that the plaintiff cannot have an order made because the Board has not complied with the provisions of Section 210 of the Act of 1937, supra. Section 210 is entitled "Municipal Financing of Pollution Abatement". The first part of the section provides what steps shall be taken by the Borough authorities to comply with the order of the Board. The section further provides that the cost of the acquisition, construction, etc., of such sewage treatment works, shall be paid as follows:
1. Out of funds on hand available for such purpose, or out of the general funds of such municipality not otherwise appropriated.
2. If not sufficient funds under No. 1, then the necessary funds shall be raised by the issuance of bonds, such bonds shall be subject only to the approval of the Department of Internal Affairs if the estimated cost of the plant is such that the bond issue necessary to finance would not raise the Borough indebtedness beyond the constitutional limit imposed upon such indebtedness.
3. If not possible under No. 2, the necessary bonds may be issued as an obligation of the Borough if the electors of the Borough shall vote in favor of the increase in indebtedness where such consent is required.
4. If the consent of the electors at a special election cannot be secured, or if the Borough shall determine against the issuance of direct obligation bonds, "then such municipality shall be requested to issue non-debt revenue bonds and provide for the payment of the interest and principal of such bonds from funds to be raised by imposing a sewer rental or charge, in accordance with, and as authorized by, the act approved the eighteenth day of July, one thousand nine hundred and thirty-five (Pamphlet Laws twelve hundred eighty-six) entitled 'An act empowering cities . . .'."
The last paragraph of Section 210 provides that: "The Attorney General, at the instance of the board, may enforce this provision of the act by action of mandamus."
In the so-called speaking demurrer the defendants, hereinafter referred to as the Borough, allege that there was no money available or to be made available under the first or second methods referred to in this opinion, and that at a special election the electors had voted against the increase in Borough indebtedness sought by the Borough. The Borough contends that its authorities have made every effort to comply with the order of the Board and that if an order were issued to comply, the Borough could not be held in contempt of the order.
As to the final alternative, the issuance of non-debt revenue bonds to be secured by a sewer rental charge against the users of the sewage facilities, the Borough admittedly has not been requested to issue such bonds as provided in Section 210.
To this the Board replies that it has no official knowledge of the state of the Borough exchequer and therefore was not in a position to make the request to issue non-debt revenue bonds as provided in this section. However, at the argument, it was tacitly admitted by counsel that the facts are as alleged by the Borough.
As already noted, while we might dismiss the objections and require the Borough to set forth these facts in an answer to the complaint, yet to do so will not dispose of the question raised as to the necessity for a request being made to the Borough to issue such non-debt bonds. This would only cause further delay so far as the Board is concerned.
As indicated to counsel at the argument, we feel that it was perfectly possible and proper for the Board, before filing the present proceedings, to have notified the Borough formally that if the Borough was unable to finance the erection of such facilities through any one of the first three methods as set forth in Section 210, supra, the Board was requesting the Borough to issue non-debt revenue bonds and provide for the payment of the interest and principal of such bonds as provided in such section. Certainly this court cannot punish the Borough authorities in contempt if the Borough has made every effort to finance such operation in one of the first three ways provided in the act, and has not yet been requested to proceed by the fourth method.
The remaining question is as to what should be done as a matter of practice. The first alternative would seem to be to hold the present proceedings in abeyance pending the making of the request to the Borough to issue non-debt revenue bonds and the failure of the Borough to comply with such request. The second alternative is to sustain the preliminary objections and dismiss the complaint. This would allow the Board to comply with Section 210 by making such request and upon non-compliance to again file its complaint in mandamus. We feel that the second alternative is the better since it will raise the issues more clearly and raise less legal questions than allowing the Board to amend the complaint to show that such request was made and non-compliance after the filing of the original complaint, and since no costs except nominal filing costs have accrued up to this time, we feel that the cleaner practice will be to sustain the objections, allow the request to be made, and the filing of another complaint which will include the facts as of the date of such new complaint. Since we feel that the requirement of Section 210 is controlling, it becomes unnecessary to discuss the various minor questions raised by the Borough.
And now, this 28th day of July, 1953, for the reasons given, the Borough's preliminary objections to the complaint, insofar as they refer to the failure of the Board to comply with the provisions of Section 210, supra, are sustained and the complaint is dismissed without prejudice to the right of the Commonwealth to proceed in accordance with this opinion. An exception is allowed to the plaintiff.
Plaintiff appealed.
C. Russell Welsh, Jr., Senior Legal Assistant, with him Thomas H. Jones, Special Attorney, Robert J. Trace, Deputy Attorney General, Harrington Adams, Acting Attorney General and Frank F. Truscott, Attorney General, for appellant.
Morris Gerber, with him Thomas M. Garrity and Wisler, Pearlstine, Talone Gerber, for appellees.
The Order of the Court below is affirmed on the Opinion of Judge CORSON.