Melick v. Williamsport

162 Pa. 408 | Pa. | 1894

Opinion by

Mr. Justice Mitchell,

The effect of the unconstitutionality of so important a statute, under which so much had been done, as the act of May 24, 1887, P. L. 204, dividing cities into classes, was, as said in Devers v. York, 150 Pa. 208, intolerable confusion, and the legislature when it addressed itself to the task of providing a remedy, intended to make it complete, as far as lay in its power. The act of May 13, 1889, P. L. 196, therefore declared all the existing councils “ to be and to have Seen legally constituted councils,” and all their ordinances and resolutions were validated and declared to be in full force. The operation of the act was intended to be upon the past even more than upon the future, for the future would be taken care of by the act of May 23, 1889, P. L. 277, for the incorporation of cities of the third class, which was proceeding on its legislative passage pari passu with the other act. But the past required a special and additional remedy, and that was given by declaring the councils to have been legal, and their ordinances to be valid. But how can an ordinance fixing the salary of an officer be valid or have any effect as to the past unless there was an office to which it could apply ? To make valid the ordinance was therefore necessarily to declare that, for the purposes and to the extent of what had been done under it, the office must be treated as having a legal existence.

The learned judge below thought that though the ordinance was made valid, the office was not created until the passage of the later act, and therefore not being in existence when the plaintiff was elected, the ordinance could not apply. The strict letter of the act of May 13th might countenance this view, but such a construction would deprive the act of the greater part of its intended benefit. It is not merely a question of this office, or this officer’s salary, but of the whole municipal action. If there was legally no assessor, then the assessments and valuations of property, and perhaps the taxes paid thereon, would go for naught, and we get back again at once to the confusion meant to be prevented. As the true intent of the statute is not in the least in doubt, it will not do to stick in the letter of its terms. It specifies ordinances and resolutions, but it also declares the councils to be and to have been legally constituted, and its whole tenor makes clear its purpose to validate all municipal action based on the act of 1887, and to declare that if it would have been valid under that act, it shall be treated as if valid now. The plaintiff was elected in February, 1888, to an office supposed to have a legal existence, and to which a salary attached by virtue of an ordinance having all the forms of law. He performed the duties of the office and would have been entitled to the salary but that both office and ordinance failed together by the failure of the statute on which they rested. The legislature immediately validated the ordinance and restored the office by the acts of May 13 and May 23, 1889. The result was to make legal what befoi'e had only the appearance of legality. As said in Devers v. York, supra, “the order of dates of the two statutes is entirely immaterial. They are parts of the same legislative effort to repair the mischief which the invalidity of the previous act had brought about, and to ratify everything that had been done under it, as broadly and as conclusively as if it had been legally authorized in the first instance.”

The principles on which that case, and Donley v. Pittsburg, 147 Pa. 348, were decided, are applicable to the present case, and control its decision.

Judgment reversed, and judgment is now entered for plaintiff.