Pennsylvania Globe Gaslight Co. v. City of Scranton , 97 Pa. 538 ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

On the 13th of December 1877, a contract was executed on the part of the city of Scranton by Joseph P. Phillips, president of the select council, with the Maloney Manufacturing Gaslight Company, assignor of the plaintiff, by which the company agreed to furnish the city with a certain number of street lights for the period of two years, from the 20th of December 1877, at the rate of thirty dollars per year for each light.

It is admitted by the case stated, which the parties submitted to the court, that this contract was fully performed on the part of the company, and that if this contract is valid and binding on the part of the city, the plaintiff is entitled to $6160, with interest from the 1st of March 1879.

The single question then is, had Joseph P. Phillips, as president of the select council, power to bind the city by the contract, as above stated ? The court below thought not. The power of Phillips depends upon the ordinance of November 17th 1877; if it was valid, his power was undoubted, for it authorizes just what was done, and the power of the councils to furnish the city with gaslights, by contract or otherwise, is expressly conferred by the 20th section of the Act of May 23d 1874, Pamph. L. 240.

Why then was the ordinance not valid? The learned judge of the common pleas answers this interrogatory by saying it was vetoed by the mayor. But this answer is, in turn, met by the plaintiff’s allegation, that though vetoed it was not returned to the council within the statutory period of fifteen days, hence the veto was nugatory and the ordinance became a law.

As the facts of the case are not disputed, this controversy may be readily settled by reference to the certificate of the clerk of the common council, and the 29th section of the act above cited. The following is a copy of the certificate : “I do certify that the bill entitled ‘An Ordinance to supply portions of the city of Scranton with Gaslights, No. 18, filo of Common Council,’ was passed by the Common Council November 17, 1877, presented to the Mayor for approval the 20th of November 1877, returned, vetoed with objections, to the president of the Common Council, December 4, 1877, and now, December 8, 1877, read before the Common Council, being more than fifteen days after presented to the Mayor: no further action taken.”

The act reads as follows: “Any ordinance which shall have been passed by the councils shall be presented to the mayor, if he approves, he shall sign the same, hut if he shall not approve, he shall return it with his objections to the council who shall proceed to reconsider it. * * * Every ordinance which the mayor shall not return within fifteen days shall have the same force and effect as if it had been approved of by the said mayor; and the said mayor may approve ordinances in vacation of council, and may call special meetings of council to reconsider ordinances which he does not approve, on one day’s notice to each member of the said council.”

This definitely settles this controversy in favor of the plaintiff. The ordinance not having been returned by the mayor, with his objections, to the council within the statutory period of fifteen days, it became a law as effectually as though it had been approved by him. The court below endeavored to break the force of this conclusion by the application of that part of the 4th section of the act which prescribes that “ the mayor shall sign the said resolution or ordinance if he approve it, or return the same, to the branch of councils wherein such resolution or ordinance originated within ten days, or at the next meeting of councils after ten days have expired-if he does not approve it, with the reasons therefor.”

But it is manifest that this section, though the act does not so state, must be confined to cities of the first and second classes; otherwise there is a direct and unnecessary conflict between it and the 29th section, which is expressly limited to cities of the third class. It is, indeed, only under a construction such as this that the former section can stand, otherwise the latter, being the last expression of the legislative will, must repeal the former.

But the patchwork which is attempted in order to save the defendant’s case, by taking part of the 4th and engrafting it on the 29th section, cannot be sustained.

The court thought there was a necessity for such a construction, but in this we do not agree with. it. The 4th section gives the mayor ten days, or the further period intervening between the expiration of the ten days and the next meeting of the council, within which to return the vetoed ordinance. The reason for this is obvious enough, since this part of the statute gives the mayor no power to convene the councils for the purpose of considering the rejected ordinance.

The 29th section, on the other hand, gives the mayor fifteen days and no more, in which to consider an ordinance, -with the power to convene the council for the special purpose of reconsidering those ordinances which he refuses to approve. Thus the necessity for an extension of time beyond the period of fifteen days is fully provided for, and the statute requires no judicial implication or construction for its perfection.

We are, therefore, satisfied that the ordinance under which Phillips acted in the execution of the contract -with the assignor of the plaintiff was valid, and as a consequence his act bound the city. •

This conclusion, as Avell as the fact that the parties submitted their contention to the court below, in the shape of a case stated, renders a consideration of the question whether C. J. Johnson had the right to appeal, on the part of the city, from the award of arbitrators unnecessary.

The judgment of the court below is now reversed and set aside, and it is ordered that judgment be entered for the plaintiff, on the case stated, in the sum of $6160, with interest from the first day of March 1879, and costs.