Jones v. Schuylkill Light, Heat and Power Co. , 202 Pa. 164 ( 1902 )

Opinion by

Mr. Justice Fell,

The single question raised by this appeal is whether a resolution of a borough council accepting the bid of an electric light company to light the streets for five years, and directing the proper officials to execute a contract with the company, must be submitted to the chief burgess for his approval. The 3d section of the act of May 23, 1893, provides that: “ Every ordinance and resolution which shall be passed by council shall be presented to the chief burgess of such borough. If he approves he shall sign it, and if he shall not approve it he shall return it with his objections to said council at the next regular meeting thereof, when said objections shall be entered at large in the record book and said council shall proceed to a reconsideration of such ordinance or resolution.” The construction placed on this section of the act and on sections providing for advertisement and recording, is that they apply to all acts of the council by ordinance or resolution which are of a legislative character, but not to those that are merely ministerial or executive. Generally under the first are permanent regulations for the government of the borough, the granting of privileges to occupy streets, and the creation of liability by contract; under the second, the transaction of current business, the ordinary administration of municipal affairs and the awarding of contracts which have been previously authorized: Howard v. Olyphant Borough, 181 Pa. 191; Commonwealth v. Diamond National Bank, 9 Pa. Superior Ct. 118. Seitzinger v. Edison Electric Illuminating Co., 187 Pa. 539, does not establish a different rule. In that case a resolution awarding a contract was presented by a resolution duly approved by the chief burgess, authorizing the making of the contract. What is said in the opinion as to a resolution awarding a contract being a ministerial act, has reference to a contract which council has by resolution approved by the chief burgess previously authorized.

The distinction above noted between ministerial and legislative acts was observed by the court, and it is in effect conceded that the making of a contract to light the streets for five years is a legislative subject. The decree refusing the injunction prayed for is based on the finding that: “ A system of lighting the borough has existed for a period of at least twenty-one years, and in the absence of proof to the contrary we must presume the original ordinance providing for the lighting of the borough was properly and legally passed, and the awarding of the contract carrying out the provisions of this ordinance was a mere ministerial act, concerning the current business of the borough and needed not the sanction of the chief burgess.” There was no general ordinance providing for the lighting of the borough and authorizing the making of contracts from year to year or at stated periods. Two prior ordinances were offered in evidence, one passed in 1880, and the other in 1885, to prevent interference with borough lights. And two contracts were offered, one made in 1889, to light the streets for five years by gas, and one in 1895, to light them for five years by electricity. These were the only evidence of any previous action by the council on the subject. The ordinances established nothing except inferentially that there were street lights; and it did not appear in what manner the contracts were authorized. This was not adequate proof of the adoption of the permanent system as a legislative measure, which required only executive action from time to time to carry into effect.

The act of 1893 makes the chief burgess a part of the lawmaking power of a borough. Its plain meaning is that every ordinance and resolution shall be presented to him. The only limitation of the act is that it does not apply to ministerial acts in carrying on the routine business, nor to acts which merely carry into effect what has before been authorized. This is the only safe rule, and following it we must hold that the resolution of April 15, 1901, accepting the bid of the Schuylkill Light, Heat and Power Company, and directing a contract to be made, is invalid.

The decree entered November 4, 1901, is reversed and set-aside, and it is directed that the record be remitted in order that a decree may be entered in accordance with this opinion.