Lehigh Coal & Navigation Co. v. Inter-County Street Railway

167 Pa. 126 | Pa. | 1895

Opinión by

Mr. Justice Williams,

The assignments of error in this case present two questions not involved in any other one of the series of appeals with which this one is connected.

The first of these relates to the validity of the ordinance of the borough of Summit Hill under which the defendant claims to have secured municipal consent to the occupation of certain streets with its street railway. The evidence shows that an outline or draft of such an ordinance as was thought to be necessary had been prepared by the borough solicitor and presented or reported to the councils at a meeting held on the fifth day of October, 1894. One or two alterations were made in it by councils and then it was formally accepted as appears by an entry on the minutes made thus: “ On motion the ordinance be accepted.” This was probably intended as an expression. of satisfaction with the character of the work done by the solicitor in the preparation of an ordinance suitable for consideration and adoption at the proper time. Another meeting of councils was held on the tenth day of the same month which adjourned to meet at the call of the president. Six days later a call was made by the president and a meeting held at the house of one of the councilmen. At this meeting the ordinance was taken up and adopted, giving to the defendant permission to enter upon and occupy certain borough streets with its street railway. When this was done another adjournment was made to the call of the president. This call came on the following day and at that meeting the business done was the approval of a contract and bond given by the defendant company under the provisions of the ordinance adopted the day before. The next meeting of councils was the regular monthly meeting held on the second day of November. The hour for this meeting was seven and a half o’clock in the evening. On the same evening at about six o’clock the ordinance, the agreement of the railway, the bond, and other accompanying papers came to the hands of the burgess for his examination and action. His veto was not presented to councils when that body met, and at its adjournment it was alleged that the ordinance had become effective under the provisions of the act of 1893. The burgess completed his examination and sent his veto on the following day, and his veto message with a statement of his objections to the ordinance came in this manner to the notice of councils and of the defendant. Was this veto in time under the circumstances of this case? The burgess insisted that it was, and, as the defendant admits, protested against the validity of the ordinance and the right of the railway to occupy the streets under it. It may well admit of doubt whether an ordinance adopted at a called meeting is within the meaning of that provision of the act of 1893, that requires the burgess to return an ordinance to which he objects at the next regular meeting of councils. It would seem that an ordinance passed at one regular meeting should be promptly placed in the hands of the burgess who would then have until “ the next regular meeting ” for examination and decision. If an ordinance passed at a called meeting is to be treated in the same manner as though passed at a regular meeting, then the called meeting might be held on the same evening with the regular one at an hour, or a half hour earlier, and an ordinance upon an important subject and of great length be passed. It could then be placed, as this one was, in the hands of the burgess at a time to make examination impossible, and if the object was to avoid a veto the shorter the interval between the special and the regular sessions, and the more prompt the adjournment of the regular, the better the prospect of securing an ordinance in defiance of the burgess. This is an opening for discord and uncertainty and litigation that the law did not contemplate. The court below took the most favorable view possible of the situation for the councils, and the defendant, when it held that the burgess was at least entitled to a reasonable time for examination. That he was not allowed, by the council, a reasonable time in this instance and that his veto promptly returned within twenty-four hours after the papers were placed in his hands was in time, were conclusions that followed logically, and we see no reason for disturbing them.

The second question relates to the right of the burgess to raise the question of the validity of the ordinance. This is hardly debatable. The statute confers on him the veto power. The councils arrange to render its exercise practically impossible, and assert that they have a valid ordinance without his signature. He has a right to assert his prerogative, and he can do this only by denying the validity of the ordinance alleged to be binding notwithstanding his veto. The appropriate remedy for him is by bill in equity to restrain action under the ordinance alleged on one side to be legal and on the other to be without legal force. This brings his prerogative and the manner of its exercise before the court and determines the duty of the councils towards him. The joinder of the other plaintiff has not been demurred to, and the decree may well rest on the right of the burgess to be heard on the validity of the ordinance. The decree is affirmed. The costs of the appeal to be paid by the appellant.