166 Pa. 401 | Pa. | 1895
Opinion by
In the case of Commonwealth ex rel. Braughler v. Weir, 165 Pa. 284, reported now in 35 W. N. C. 556, we considered and decided the very question involved in the present contention.
In this case the borough was chartered by a special law approved February 27, 1851, P. L. 115, which incorporated within its terms eight sections of the general borough law of 1834, P. L. 118, to wit, sections seven to thirteen, both inclusive, and also section sixteen.
By section three of the act of 1851 the burgess was to be elected for the term of one year, whereas by the act of 1893 the burgess is elected for the term of three years, and is not eligible to election for the next succeeding term, a disqualification which does not appear in the act of 1851.
By the eighth section of the general law of 1834, which is made a part of the borough charter, the burgess is constituted a member of the borough council with full power to act and vote as a member upon all bills and ordinances which may come before them. The language of the section is, “It shall be the duty of the town council of each borough hereinafter incorporated, four of whom including the burgess if present shall be a quorum, to meet at such times and places as by the by-laws and ordinances of said borough shall be appointed, at which meetings they may enact, revise, repeal and amend all such by-laws, rules, regulations and ordinances,” etc. Numerous powers are specially-conferred upon them by the remainder of the sectiou.
By the second section of the act of 1893 it is provided, u Such burgess shall not hold any other borough office or appointment during the term for which he is elected, nor be a member of nor preside at the meetings of the town council of said borough. But such meetings shall be presided over by a president of council to be at the annual organization thereof elected by such council from among their number, and in the absence of such president shall be presided over by a president pro tempore.”
It will be perceived at once that the provisions of these two acts upon this subject are utterly hostile to each other and cannot possibly stand together.
Under the acts of 1851 and 1834 there is no power in the burgess to veto any ordinance or resolution of council, but under the third section of the act of 1893, a full power to veto all such ordinances and resolutions is conferred upon the burgess, with an additional provision requiring a vote of two thirds of the members to pass the measure over the veto. In case of a veto it would require a vote of two thirds of all the members to pass an ordinance or resolution, whereas under the former laws a majority was always sufficient.
Under the act of 1851 the burgess, being a member of coun oil, could vote on any measure, but under the act of 1893 he could not in any circumstances cast such a vote. If under the act of 1893 he should veto a measure, he could, under the act of 1834, vote as a member on the question of sustaining his own veto.
For these and other reasons which it is unnecessary to point out, we hold that the act of 1893 repeals the acts of 1851 and 1834, so far as they relate to the election of a burgess, and that the act of 1893 is now the only one in force.
There is much discussion in the paper books which we do not regard as relevant and therefore do not stop to consider it. The assignments of error are dismissed.
The decree of the court below is affirmed at the cost of the appellant.