Luburg v. Miller

Citations

• 1 Monag. 329
• 17 A. 245
• 1889 Pa. LEXIS 1339

Syllabus

<p>A bill in equity by a taxpayer against school directors and others averred that the school directors had entered into a contract, without the assent of electors, to build a school house at a cost in excess of two per centum of the assessed value of the taxable property in the district, contrary to article IX, $ 8, of the constitution. The court granted a preliminary injunction. The answer averred that the school district was authorized by decree of court “ to borrow the money for the purpose of erecting the schoolhouse, a portion of which it is proposed to expend ” for that purpose, and that the tax of one per centum, authorized by law to be assessed, when applied to the erection of the schoolhouse, will enable the school district to perform the contract without an increase of indebtedness within the meaning of the constitution. The court below, holding that, as the loan had been made, and as the contracts of the school district did not exceed the means of payment, no debt was created, dissolved the preliminary injunction. Held to be error.</p> <p>Steerett, J. — It is not distinctly averred in the answer or in any manner shown, that the loan has been actually placed and it cannot be inferred from an evasively worded answer. But, as the order of the court authorizing the loan was illegal, the bonds are worthless, and there is nothing to prevent the-holders of such bonds from demanding restitution.</p> <p>In an answer to a bill in equity, neiv matter set up, in confession and avoidance, is not responsive, and is, therefore, not to he considered upon a motion to dissolve a preliminary injunction.</p> <p>An averment based on information and belief, in an answer to a bill in equity, is not evidence, but is pleading merely, and puts in issue the facts in dispute.</p> <p>The answer to the bill in the above ease averred that the defendants believed,, from information received, that the plaintiff had knowledge that such a contract was being entered into, and permitted the