16 Pa. Super. 484 | Pa. Super. Ct. | 1901
Opinion by
The first question raised in this case is as to the validity of a borough ordinance passed prior to the Act of May 23,1893, P. L. 113, signed by the presiding officer of council, regularly transcribed in the ordinance book, there signed by the presiding officer and attested by the secretary, and afterwards duly published, but not signed by the burgess after being transcribed in the ordinance book. It is to be noted that we are speaking of a case arising in a borough where, at the time of the passage of the ordinance, the burgess was not authorized to act as a member of council and to preside at its meetings, and had no veto power.
1. The 5th and 6th sections of the general borough law of April 3, 1851, P. L. 320, relate exclusively to the powers and the duties of the “ chief burgess or other principal corporate officer.” The same officer is referred to in all these provisions. The officer who has the power, and upon whom is imposed the duty, to preserve order and maintain the peace of the borough, to enforce the ordinances and regulations, to exact a faithful performance of the duties of officers appointed, is the officer whose duty it is “ to sign the several by-laws, rules, regulations and ordinances adopted, after they shall have been duly and correctly transcribed by the secretary.” There is no more authority for holding that the presiding officer of council is the officer here referred to than there is for holding that the other powers and duties enumerated in these sections may be exercised and performed by him. No other officer being designated as such in the charter of the defendant borough, the chief bur
2. Assuming, then, that it was the duty of the burgess to sign the ordinance, are the ordinance and the contract made pursuant to it void ? If it had been necessary to submit the ordinance to the burgess for his approval or disapproval, a different case would be presented. Kepner v. Commonwealth, 40 Pa. 124, Marshall v. Com., 59 Pa. 455, Waln v. Philadelphia, 99 Pa. 330, and Fuller v. Scranton, 2 Cent. Repr. 788, would then apply, because in such a case the legislation is not complete until it has received the approval of the chief executive officer, or what is equivalent thereto. But under the statute in force when this ordinance was adopted, this was not required. The signing by the burgess was not part of the legislative act. He had no authority to prevent the' legislation becoming effective by withholding his approval. His duty was to sign, not to approve, and .was purely ministerial. “ The duty of signing is simply intended to give greater authenticity and certainty to ordinances which may be intended to continue for years, by requiring the attesting signature of the chief officer of the corporation. ... So that his signature, not being required till after the proceeding is adopted and regularly transcribed by the officer of the council, shows the preliminary duties to have been complied with, and becomes thus added evidence to the public, certifying that the act is duly performed, and has become a law of the corporation: ” Judge Conyngham in In re Burgess, etc., of Wilkes-Barre, 8 Luz. Leg. Reg. 113. It is, therefore, not a mere work of supererogation. It is a duty owed to the public. But the question is, not whether a member of the public may refuse obedience to an ordinance lacking this additional authentication, but whether the borough can set
3. According to the uncontradicted evidence these hydrants were of the pattern and design selected by the borough council, and were located at such places as the committee appointed by council directed. The hydrants and the water to supply them when needed were furnished by the plaintiff at the instance and request of the borough council, and the borough has had the protection from fires they were intended to afford. The plaintiff was not a mere volunteer. There is no room for inference that the hydrants and the water to supply them were furnished gratuitously, or that the borough council so supposed. To permit it to escape wholly from liability for the service rendered at its instance before any notice was given to discontinue it would be grossly inequitable and unjust. It would not be permitted in the case of an individual or a private corporation, and we are not required to hold that an equal obligation to do justice does not rest upon a municipal corporation. As a general rule, where its charter or the general law prescribes the mode in which a municipal corporation may contract, it must be shown that the contract or obligation sought to be enforced was made or incurred in the mode thus prescribed. But in the absence of such provision, as is the case here, municipal as well as private corporations may, in many cases, be bound by implied contracts within their corporate powers to be deduced by inference from corporate acts: 1 Dillon’s Mun. Corp. (4th ed.) sec. 459; Pittsburg v. Biggart, 85 Pa. 425; United States Water Co. v. DuBois, 176 Pa. 439 ; Boro. of Carlisle v. Carlisle Gas &
4. We have given due consideration to the argument of the appellee’s counsel upon the questions of the validity of those sections of the ordinance relative to the levying of a special tax and to the purchase of the plaintiff’s works by the borough, but conclude that they do not necessarily arise in this case. Therefore, we express no opinion upon them.
Judgment reversed and a venire facias de novo awarded.