vided for a special method of assessing and collecting taxes and water rents and the disbursement thereof, and especially a school tax, and regulated the affairs of the school district, and provided officers and prescribed their duties different from the law for other parts of the State; the act contained legislation on several matters for cities of the second class, certainly more obnoxious to the charge of local legislation than is the Act of 1889. All of these questions of local and special legislation were fully presented and ably argued before the Supreme Court and were necessarily passed upon in the decision, and Kilgore v. Magee has never been doubted by the Supreme Court. court should not hold the Act of Assembly in question invalid. The city authorities declare that they do not contemplate taking complainants' property without first paying therefor or giving ample security. We will therefore refuse the preliminary injunction now prayed for with leave to complainants on any attempt of the city or its officers to enter upon their property without having first paid the damages assessed or that may be agreed upon, to move the court for an injunction. For plaintiff, Messrs. Dalzell, Scott & Gordon. Contra, W. C. Moreland, City Solicitor, and D. T. Watson, Esq. PITTSBURGH et al. The Act of 1874, classifying cities into three classes, provided for almost the entire govern- CHARLES L. STRAUB et al. v. THE CITY OF ment of the cities of the third class, and detailed provisions for taxes and liens therefor, for streets and for sewers (sections 20, 37 and 47) for levying and collecting of assessments therefor, the filing of liens and for proceedings thereon by scire facias, as in cases of mechanics' liens, providing for evidence thereon, and providing a great number of things different from the legislation for cities of the first and second classes on subjects contained in the 7th section of Article III., of the Constitution, and this legislation has been considered necessary by the Supreme Court. The city of Reading filed municipal liens under the provisions of this act, and in the latest decision on the subject, in Reading v. Savage, 124 Pa. St., 328, subsequent to Philadelphia v. Haddington, and following a few months after Ayar's Appeal, the validity of the lien is sustained. It is true that in the opinion of the court deciding the case, the special provisions for cities of the third class, on which the lien depended for its life, are not discussed, but it cannot be doubted that the court had in view and approved this legislation, otherwise their former decision on a different point would not have been reversed. The frame of city government, and erroneous pecuniary interests, have become involved in and depend on the faith and stability of the rulings in Wheeler v. Philadelphia, and Kilgore v. Magee. The board of guardians for the relief and employment of The Act of April 28, 1887, P. L., 263, relating to the Prayer for injunction, bill, answers and affidavits. Opinion by EWING, P. J. Filed September 20, 1890. The parties by writing filed have agreed that the court shall pass upon the whole case made by the pleadings and affidavits without a master's intervention and enter a final decree. There are really no facts in dispute. The allegations of fact contained in the bill are admitted by the answers, except that of collusion between the parties proposing to purchase, and that is squarely denied by the answers, and com The ruling that declares this act unconstitutional, as a whole, or so far as involved in this case, will imperil the collection of many hun-plainants' counsel abandon that allegation. dreds of thousands of dollars. It may unsettle many titles. It is not necessary to sustain every provision of the act to validate the proposed improvement under it. In view of the large interests involved and with Kilgore v. Magee standing undoubted, and with the case of Reading v. Savage, so recenty decided, this The proceedings in relation to the opening of the proposals, as set forth in the complaint, were in strict accordance with the previous ordinance of councils directing the advertisement for proposals to purchase. The Pittsburgh City Poor Farm, situate in Mifflin township, Allegheny county, with all the improvements thereon was wholly paid for by the sale of property belonging to the city and by taxes levied on the entire city therefor. At the 14th June, 1887, the legal title to this property was in "the board of guardians of the poor of the city of Pittsburgh." This board was elected by the city councils and performed the municipal functions of caring for the poor of the city. The board was but a trustee of the title, with no interest otherwise in the property. It was in no sense a private corporation. By Act of 22d March, 1877, it was declared to be a department of the city government. It was so without such a legislative declaration. improvements as may be deemed necessary for the proper care and maintenance of said poor." This power is, of course, to be exercised in accordance with the law in relation thereto, whatever that may be. In this case certainly an ordinance of councils duly passed is necessary. Such an ordinance directing the sale of the Mifflin township poor farm, belonging to the city, was duly passed and formally approved by the mayor as set forth in the answer of the city of Pittsburgh. It enacted that all the property known as the "City Farm," the land in question, should be sold and conveyed, and prescribed the terms and conditions of the sale, and prescribed the duties of the city officers in the premises, providing finally for the approval and accep By Act of 25th May, 1887, P. L., 263, this board was authorized to sell the poor farm with consent of councils, and from the proceeds pur-tance of the bid by the city councils, which has chase other lands in Allegheny county and erect buildings thereon, and pay the balance into the city treasury. been given by joint resolution. This joint resolution has not been laid before the mayor for his approval. We are of the opinion that this joint resolution was not such "legislative action " as under the statutes required the approval of the mayor. He had already approved the ordinance direct By virtue of the Act of 14th June, 1887, P. L., 395, relating to cities of the second class (i. e., Pittsburgh), "The powers and duties of the board of guardians of the poor were taken and transferred to the city councils and to the de-ing the sale of this specific property and the partment of public charities." Assuming for the present the acts to be constitutional, and as we interpret them, upon the reorganization of the city government under the Act of 14th June, 1887, all the powers and duties of the board of guardians were ended, unless it was the duty of executing a formal conveyance of the property in question to the city, their cestui que trust. They were the mere naked trustees, and while it may have been their duty to convey the legal title, such conveyance was not necessary to the ownership of the city. After the term of office of all the members of the board who were in office at 14th June, 1887, had expired, and when the ordinance took effect, 1st February, 1888, the said board of guardians of the poor did execute and deliver to the city of Pittsburgh a deed conveying to said city all the interest and title of said board to the property in question, to wit, on July 24, 1890. No other members of said board had been elected after 14th June, 1887. In our opinion the city had the title to said property with the right to convey it in accordance with law, and no such power exists in the late or any future board of guardians. The 12th section of the Act of 14th June, 1887, provides that "The councils of said cities shall have full power and authority to provide by ordinance for the relief and employment of the poor of said cities, and for that purpose shall have power and authority to sell and purchase real estate and improvements and erect such terms and conditions of the sale-everything except the mere price was fixed. It differs materially from the case of Fuller v. Scranton, 18 W. N. C., 18, and differs essentially from the case in relation to the purchase of a poor farm argued with this case. If, then, the various Acts of Assembly cited in relation to cities of the second class be constitutional and valid, we see no good objection to the validity of the proceedings, unless a decree of court was necessary. By Act of Assembly, approved 28th April, 1887, P. L., 75, it is enacted that "The Courts of Common Pleas of the several counties shall have jurisdiction and are hereby authorized to decree a public or private sale of any poor-house property or real estate held for the relief and employment of the poor in any county, city, borough, township or poor district at such times and in such parts or parcels and upon such terms as in the opinion of any such court may be considered advantageous." The second section provides for the petition of the overseers, directors or managers, and that the sale shall only be ordered "after a full and careful investigation by the court," and provides for the investment of the proceeds by direction of the court. The third section of the act contains a general repealing clause of all acts inconsistent therewith. Does this act become a part of the law governing the sale and purchase of property for poor purposes belonging to the city of Pittsburgh (i. e., cities of the second class)? It seems to us that the Act of 28th April, 1887, is a general law providing for the sale and purchase of property and for the care of the poor. These acts in relation to the care of the poor and the property held for the care of the poor in cities of the second class can only be sustained, and as independent of the general law on the ground of the legislative power to classify cities. This and the questions of the constitutionality of the Acts of 25th May, 1887, and 14th June, 1887, in our opinion raise the only doubtful questions in the case. Counsel for defendants have argued very forcibly and ingeniously that special and local legislation in regard to "poor districts" is not forbidden in the Constitution, and in this they are supported by a suggestion or dictum in the opinion of the Supreme Court | That this power exists is not an open question— in the recent case of the Overseers of Jenks to what extent is a difficult and doubtful quesTownship v. Commissioners of Sheffield Town- tion. ship [ante, p. 80.] With great respect for the learned judge making the suggestion (who | was a distinguished member of the Constitutional Convention), we cannot agree with this view until it shall be so decided by him or by the Supreme Court. It is true that the seventh section of the third article of the Constitution does not in the precise words prohibit local legislation for "poor | districts" as it does for school districts, and for this very good reason: The care of the poor had always been considered a municipal function and "affairs of counties, cities, townships, wards and boroughs" for which local laws are prohibited in the second paragraph of section 7. While the uniform rule had been to treat schools and school districts as something separate and independent of the ordinary municipal governments. The same reason will apply to other articles in the Constitution where "school districts" are mentioned and "poor districts" are not named. In Article 9, sections 8 and 10, on taxation and finance, school districts are named, but poor districts are not. Certainly these sections were intended to include all officers, bodies or departments that could involve a community in debt or who managed the affairs of such community. It was no more necessary to specify poor districts than to have specified police districts or road districts, or to specify township auditors. The seventh section of article third prohibits local legislation "creating offices or prescribing the powers and duties of officers in counties, cities, boroughs, townships, election or school districts." Can there be any doubt that the old board of guardians or the new officers provided for the care of the poor in cities of the second class are city officers? The last paragraph of this section, seven, prohibits the passing of any law "granting powers or privileges in any case where the granting of such powers and privileges shall have been provided for by general law, nor where the courts have jurisdiction to grant the same or give the relief asked for." In the important case of Howard et al. v. The City of Pittsburgh et al. [ante, p. 87], that came before us within a year and was very ably argued on both sides, we gave our reasons for sustaining as valid the Act of 14th June, 1887, as against objections to the title, and to the main provisions of the act, the main objectious raised being substantially the same as in the case now before us. We do not deem it necessary to repeat these reasons, but refer to them as our reasons for holding the acts in relation to the poor affairs of the cities of the second class to be constitutional. Nor until reversed by the Supreme Court do we feel inclined to change our views. The case of Kilgore v. Magee, 85 Pa. St., 401, still stands undoubted and approved by the Supreme Court as the law for Pittsburgh. The recent decision of the Supreme Court, and the discussion therein of these questions in the case of Shaaber v. The City of Reading, 37 PITTSBURGH LEGAL JOURNAL, 343, seems to us also to be in the line sustaining the constitutionality of this legislation. We, therefore, refuse to grant the decree prayed for. Let a proper decree be prepared by counsel. For Carnegie, Phipps & Co., Messrs. Knox & CHARLES L. STRAUB et al. v. THE CITY OF The city of Pittsburgh has no authority to purchase land for municipal purposes outside the county of Allegheny. Municipal corporations cannot purchase or make im- The acceptance of a bid and purchase of real estate by the Opinion by EWING, P. J. Filed September 20, 1890. This bill is filed by citizens and taxpayers of the city of Pittsburgh against the city and its officers to restrain them from entering into a contract with H. S. A. Stewart, one of the defendants, to purchase at the price of seven hundred dollars per acre a tract of land containing two hundred and sixty-seven acres situate in Westmoreland county, Pennsylvania, "for the care and maintenance of the poor of the city of Pittsburgh," which it is alleged and admitted that the city officers are about to purchase unless restrained therefrom by the injunction of the court. The bill sets out, and the answer admits, the various steps taken in relation to this inchoate purchase. There are no disputed facts in relation thereto, except the allegation that the price proposed to be paid is three hundred to four hundred dollars per acre beyond the market value of the property. The chief of the department of public charities appears to have followed strictly the instructions contained in the ordinance directing him to advertise ten days for proposals for a farm. He was not bound to, and, perhaps, could not properly under the ordinance receive additional proposals after the time advertised for. There is no evidence of bad faith on the part of any of the officers, and the court would not, even if it had the power, interfere with the fair exercise of their discretion, in accordance with law. Though we might under the circumstances have thought | it advisable to reject all the proposals as either being largely beyond the market value, or that a sudden and enormous advance had come in regard to country properties in this region which might soon subside. The ordinance of 11th July, 1890, authorizing an advertisement for proposals for the sale of a farm to the city contains no offer or authority to purchase any particular property at any price, much less to remove the place for caring | for the poor to a distant county. The acceptance of the bid and purchase of the property is, in our opinion, a "legislative act of the councils," and if valid necessarily involving the appropriation of money so as to require for its validity before it takes effect "to be presented duly engrossed and certified to the mayor for his approval." The case is identical with the case of Fuller v. Scranton, 18 W. N. C., 18, and other cases are to the same effect. It is conceded that the joint resolution has not been presented to the mayor for his approval, and that it was not intended so to be. This defect might be cured if there were no incurable error in the proposed purchase. The city of Pittsburgh is one of the municipal corporations of the county of Allegheny. | The care and maintenance of the poor of the city is and has long been treated as a municipal function and duty. The Act of 14th June, 1887, in relation to cities of the second class (P. L., 395), vests the power in the city councils and the department of public charities. They have power within the proper limits and in the legal manner to purchase real estate for this purpose. Municipal functions must usually be performed within the territory of the municipality, unless the power to go beyond the territorial limits is given by statute, or unless it may be implied because essential to carry into effect those powers which are expressly granted: Ottawa v. Casey, 108 U. S., 110. They cannot purchase or make improvements or hold real estate beyond their limits without such authority: 2 Dillon on Mun. Cor., 660; Concord v. Roscannon, 17 N. H., 465; Riley v. Rochester, 9 N. Y., 68; City of Harrisburg v, Schuck, 104 Pa. St., 50-7. A power therefore given to a municipal corporation to purchase real estate without more does not authorize it to purchase or improve outside its territorial limits: City of Harrisburg v. Schuck, supra. There is no pretense of any express grant to the city of Pittsburgh to go outside the county of Allegheny to purchase a poor farm. There is clearly no necessity to go outside the county, as is shown by the affidavits filed in this case, and as is well known to every one reasonably well acquainted with the territory of the county. If the city can go to Westmoreland county to exercise this function of caring for the poor it might with equal power and authority purchase land for the purpose in West Virginia or Ohio. But the statutes are not merely silent on the subject. So far as we have been able to examine the uniform rule in Pennsylvania, where it has been deemed advisable for a municipal corporation to purchase or acquire land outside its territorial limits, has been to procure an express legislative grant of the power so to do, or to ratify and confirm it after it has been done. A large number of such acts appear on the statute books. The city of Pittsburgh and the city of Allegheny have several Acts of Assembly authorizing the poor authorities of the respective cities to purchase lands for poor purposes in the county of Allegheny. By Act approved 9th April, 1844, P. L., 226, the city of Allegheny was authorized to purchase land on which to erect buildings for care of poor within ten miles of the city. By Act of 12th April, 1867, P. L., 1143, the sale of the then Allegheny City Poor Farm was authorized and authority given to purchase another farm for the same purpose within the county of Allegheny. By Act of 9th March, 1843, P. L., 61, the overseers of the poor of the city of Pittsburgh were authorized to sell their property and purchase a large tract within the county of Allegheny. In 1846 a considerable part of the land now held as the poor farm of the city of Pittsburgh (in Mifflin township) was purchased by city councils, and by Act of 6th March, 1847, P. L., | 234, this action of councils was confirmed. The Act of Assembly approved 25th May, 1887, P. L., 263, entitled "An Act relating to the acquisition, purchase and sale of real estate by the boards of guardians for the relief of and employment of the poor in cities of the second class" (i. e. Pittsburgh) was undoubtedly passed with a view to the sale of the poor farm and buildings in Mifflin township and the purchase of other property for the same purpose. The first section authorizes the sale of the whole or any part of the farm now (then) occupied for poor purposes. The third section authorizes the board of guardians to purchase, take and hold in like manner any lands and tenements for poor farm or poor-house purposes within the county in which such cities may be. The third section provides that the money realized from the sale of property as authorizes in the first section of the act shall be appropri- | ated "to the purchase and payment of a new farm or site, and the erection of buildings thereon as hereinbefore prescribed; the surplus, if any, shall be paid into the city treasury for city purposes." By Act of 22d March, 1877, P. L., 16, sections 1 and 3, the poor board is declared to be a department of the city government. It did not require a legislative declaration to make it such. So stood the law when by an Act approved 14th June, 1887, P. L., 395, entitled "An Act in relation to the government of cities of the second class," the duties of the board of guardians of the poor, etc., was transferred to the city councils and the department of public charities. Section 12 enacts: "The councils of said cities shall have full power and authority to provide by ordinance for the relief and employment of the poor of said cities, and for that purpose shall have power and authority to sell and purchase real estate and improvements and erect such improvements as may be deemed necessary for the proper care and maintenance of said poor." Counsel for defendants contend that this section gives the councils unlimited power to purchase real estate without regard to locality. We are of opinion that standing alone it would not confer any power on councils to purchase land for such purpose outside the city limits. Also that the preceding acts cited conferring power on the poor authorities to purchase lands for such purpose within the county of Allegheny is an extension and not a limitation on their general powers to purchase and hold real estate, and that the Act of 14th June, 1887, is not inconsistent with the other acts, except in so far as it substitutes the city councils and department of public charties for the board of guardians. The city councils have made an agreement to sell the poor farm in Mifflin township, and very properly intend to apply the proceeds thereof to the purchase of another farm. But no appropriation of this or any other fund has been made for the purpose. We are of the opinion that the act authorizing the board of guardians to sell and apply the proceeds to the purchase of land, etc., in the county, is to be read in with, and becomes a part of the law transferring the duties of the board of guardians to the city council. This view of the law renders it unnecessary for us to discuss the other grounds of complaint set forth in the bill and argued by counsel. If the provisions of the general Act of 28th April, 1887, P. L., 75, in force at the passage of the Acts of 25th May, 1887, and 14th June, 1887, are applicable and the powers of sale and purchase are subject to the general law and, therefore, to be exercised under the direction of the Court of Common Pleas, it would alone be conclusive in favor of the complainants. Since the argument in this case, and after the preparation of the foregoing opinion, the parties have very wisely by their agreement in writing, duly filed, put the case in shape for a final decree. There is really no important question in dispute. The evidence fails to raise any suspicion of fraud or collusion with the vendor on part of any city officer or any want of good faith, and the market value of the land is as usual a question on which the witnesses widely differ. There is, therefore, nothing in the case but questions of law. Let a final decree for injunction be prepared as prayed for. For plaintiffs, W. W. Thomson and J. McF. Carpenter, Esqs. Contra, Thomas C. Lazear, W. B. Rodgers and W. C. Moreland, Esqs. |