109 Pa. 113 | Pa. | 1885
delivered the opinion of the Court,
To defeat the plaintiff’s recovery the defendant adduced the Ordinance Book wherein is recorded the ordinance empowering the Board of Water Commissioners to lay the water main. He also gave in evidence the journals which show that the ordinance was finally passed by the common council on January 2d, 1883, and by the select council on the 16th day of the same month. In proper order the ordinance was signed by the president and clerk of each branch of the council, and following their signatures is indorsed: “Approved January 10th, 1883, E. G. Martin, Ma3ror.” No oral evidence was offered to show that the ordinance had not been duly passed by councils before it was presented to the mayor for his approval, and all
That the ordinance was legally passed by both branches of council, and was presented to the mayor and approved by him, affirmatively appears. Allentown is a city of the third class, and the statutory provisions relative to legislation by cities of that class, were complied with to the exactness of their letter. No requisite was omitted. The mayor ought to have affixed the date of his approval and in attempting to do so inserted a false date, but the statute does not expressly require him to affix the date. After he had approved the ordinance there was nothing to be done by the councils to give it validity. Had he not approved it, nor returned it to councils with his objections, it would have become valid under the 29th section of the Act of May 2Sd, 1874, which provides that “every ordinance which the mayor shall not return within fifteen days shall have the same force and effect as if it had been approved by the said mayor.”
The journals taken in connection with the ordinance reveal a mistake in the date of approval, not illegality or irregularity in the procedure. Had the mayor approved without writing any date would the mistake have been fatal? If the date as written be obviously false, is not the effect the same as if none were written ? When the ordinance is approved it need not be returned to councils, for upon approval it becomes a law. If neither approved, nor returned to councils with his objections, within fifteen days, it shall have force as if approved. Then if the approval be without date, or with a date manifestly untrue, in absence of legal evidence of its true date, why should not the ordinance be deemed in force from the expiration of the fifteen days during which the mayor could hold it under advisement? No presumption could be made that it was subsequently approved. Where the mistaken date is patent and not prejudicial to any public or private interests, there is no reason why it should destroy the ordinance. The interpretation or construction is unaffected by the erroneous d'ate. The only question that might arise, affecting the city or individuals, is when the ordinance became operative, or took force and effect.
A statute which provides that appeals from the decisions or orders of two justices, shall be decided on the facts and merits only, has been held to apply to appeals from the judgment of one justice, on the ground that the word “ two ” was inserted by mistake which plainly appears from the whole tenor of the Act: Comfort v. Leland, 8 Whar., 81. A strict adherence to the letter would have thwarted the legislative intent. With
The fourth assignment of error is sustained. It is, therefore, unnecessary to consider the questions presented in the other assignments.
Judgment reversed, and venire facias de novo awarded.
