Marshall v. Borough of Ellwood City , 189 Pa. 348 ( 1899 )

Opinion by

Mr. Justice Green,

It is expressly found as a fact by the learned court below that Roelofs was a member of the borough council at the time of the enactment of the ordinance in question. He was also at the same time a stockholder and secretary of the Ellwood Water Company. It is beyond all question that under the 66th section of the criminal code of March 31, 1860, P. L. 400, he was disqualified from holding the position of councilman, both on account of his membership, and of his office as secretary of the water company. The decisions of this Court in the cases of Milford v. Milford Water Co., 124 Pa. 610, and Trainer v. Wolfe, 140 Pa. 279, fully establish the disqualification in such circumstances. The literal reading of the 66th section of the act in question deals with the individual and prescribes the penal consequences of his dereliction in very plain and emphatic terms. But those consequences are personal to the offender and do not in terms extend to, or embrace, the legal effect of the municipal transactions in which he participated. Nothing upon that subject is contained in the act of 1860. We held, however, in both cases cited, that the municipal transactions involved therein were invalid, entirely illegal and altogether void. The absolute facts developed in those cases necessitated such a conclusion, because in both the municipal action in question was produced by the votes of the disqualified members themselves. Thus in the Milford Borough case referred to the ordinance in question was passed by a majority of members who were also directors of the water company. As the act of each member in voting for the ordinance was a criminal and therefore a void act, the combined vote of the whole was illegal and void, and the ordinance was necessarily a void ordinance. It was conceded in the opinion that the borough might subsequently, after being purged of its disqualified members, have passed a similar ordinance which would have been legal. In the Trainer case the members of the school board were divided, and the deciding vote was cast by a member who had an interest in the land, the purchase of which was the subject of the pending resolution. It followed that the ordinance was passed by means of a disqualified vote, and therefore came within the ruling in the Milford Borough case, in point of fact however it was held that as the statute was a highly penal one it must receive a strict construction, and as the subject of the resolution was a purchase of land, it was not embraced within the prohi bition of the act which included only “ supplies or materials,’" and the resolution was not affected by the act, and the bill was dismissed.

It will thus be seen that the question now presented is not the same that was considered in the two cases above named. The subject-matter of the ordinance being the supply of water must be considered as within the prohibition of the act. But the passage of the ordinance did not depend upon the vote of the disqualified member. The council consisted of six members, of whom five were present when the ordinance in question was proposed. The whole five voted in favor of the ordinance, one of them being Mr. Roelofs. Four votes were a clear majority of the whole number of councilmen. None of these four members was disqualified, and the ordinance was passed by a majority of the whole number of members without any regard being had to the vote of Mr. Roelofs. His vote, therefore, had no legal efficacy in the passage of the ordinance. It was passed by the qualified vote of the other four members. Does an ordinance which has enough legal votes to sustain it become illegal because there were other persons, one or more, voting in its favor, who were not qualified to vote ? It would be an astonishing proposition to submit, that an ordinance in a body of fifty or a hundred members, which was passed by a considerable majority of perfectly qualified votes, should be declared illegal, because it had received the supporting vote of one member who was disqualified. We have not been referred to any decision of any court holding such a doctrine, and we cannot imagine that any such decision can be found. We know of no reason, in the present case, why the invalid vote of one member of the council should be held to invalidate the perfectly legal vote of the other four members. The fallacy of the opposing argument lies in the assumption that the contract itself between the borough and the water company was illegal. Such is not the case at all. The contract inherently was a perfectly legitimate contract, which the parties were at liberty to make. Hence the authorities cited for the appellant in which contracts made by a municipality with a prohibited person, such as a member of councils, or a member of a purchasing committee, or by a county board of commissioners with one of its own body, are held to be invalid, have no application. Such was the case in Com. v. Commissioners of Phila. Co., 2 S. & R. 198. There the board of commissioners made a contract for the purchase from one of their own number of a quantity of chairs from him. It was held void as a contract, because it was prohibited by the act of March 21,1806. And so in the other cases cited. They are cases of prohibited contracts. But such is not the fact here. There was no prohibition of a contract for the supply of water between the borough and the water company. Such contracts are of frequent occurrence and are highly beneficial where the municipality is unable for want of means to build its own works. The criminal code of 1860 prohibited a member of a municipality from being interested in a contract for furnishing supplies or materials to the corporation and imposed personal penalties upon him if he violated the act, and to those penalties he is of course liable. But the invalidity of such a contract is not declared as a penal consequence or as any consequence of such a situation. While it must be conceded that if a majority of those voting for the ordinance, or even one vote, if that vote determined the passage of the ordinance, would establish the invalidity of the ordinance, we cannot think that such a consequence could result from the mere fact that there was only one member of council Avho had an opposing interest, and the ordinance was passed by a majority of legally competent members without any reference to his vote. Entertaining these views we think there was no error in the ruling of the court below.

The decree of the court below is affirmed and the appeal dismissed at the cost of the appellant.