STTPPLEME1TT TO IK lie Tlie Bcwcr Injunction. JUDGE WOK'S OPIXIOK. CoLL'MMA CoUNTV, B8. David J. Waller, tt. at. Taxpayers, vs. GcorgoA. Herring, et. al. Prcsdt., and Town Council of tlie Town of Blooms, burg. In tho Court of Common Picas Bitting In Equity. No. 1, February Term 1884. Motion for continuance or dissolution of preliminary Injunction. I. If tho present bill were rested upon a supposed right to compel Hie Town Coun cil to specifically perform tho contract with tho Normal School and tho county, It could not bo sustained. Tho county commission crs cxpresly disavow auy objectton on tho part of tho county to the action of tho Council in changing tho route of tho sewer, and tho Normal School Is not a party to the bill. But If it were, It is doubtful if its contract with the town would give it tho right to appeal to a court of equity to re strain tho corporate authorities from exer cislng their discretion in tho location of tho sewer, even though such.action might in volvo u change in the routo from that had In view when tho contract wns made, (see P. & . It. It. Co. vs. City of Philadelphia, 8 Philu 112.) It would bo manifestly im proper for us to declare hero what effect Buch.chungo in the routo will have on the contract. All that wo decide is, that the rights of tho Normal School under the con tract, are private rights, and, so far as at present appears, must be adjudicated In another form. II. For tho purposes of the present mo tlon, the averment that the defendants threaten to enter upon tho lands of one of the plaintiffs in the bill, against his objec tion, tor the proposed sewer is put out of the case by the denial of tho defendants in their affidavits that such is their intention, llcucc we need not iuquiro whether such fact, if uncontradicted, would constitute an equity upon which the Jbill by tho present plaintiffs as tax-paycrt could be maintained. III. The prayer of the bill therefore, bo fur as material, is for an injunction to re strain the defendants, tho president and members of the Town Council of the town of Bloomsburg, from proceeding to con struct a proposed common Bewcr over tho route designated by the resolution of De cember 10, 1883. The resolution referred to proposes to materially chango tho route from that determined upon by a previous resolution adopted November 27th, 18S3. Tho first ground of objection to the validi ty of the action of the council which wo shall notice is, that tho resolution was not passed by the number of votes required by the fourth section of the by-laws which provides as follows : "four members in Couucll shall constitute a quorum for tho transaction or ordinary business, but no resolution or vote provld ing for any outlay of money by tho town, or for authorizing or approving any con tract, work, improvement or proceeding, creating or involving any pecuniary obli gation or expenditure by tho town shall be mado or passed by less than four votes In Couucll." In connection with this by law the lit tli should also be considered. It reads as follows : "The yeas and nays upon any question to be determined in Council may be demanded by any member thereof, and thereupon tho sumo shall be taken and cntcicd in full upon tho mln. utcfl." Tho mluut'esread as follows : Messrs. Sterling and Itabb moved tho adoption of tho following reso lution, viz ! Resolved, that tho loca tion of tho main sewer as by resolution adopted Nov. 27th, bo changed and the amended location bo as follows j Tho yeas and nays were called and resulted as follows i Yeas, Messrs. Habb, Stcrllug aud Hnsscrt. Nay, Mr. Waller. Tho Prcsdt. declared the resolution adopt ed." If the yeas and nays had not been recorded In pursuance of a call the pre sumption would bo from tho declaration by tho president of the result of tho vole, that tho resolution had been regularly passed and thu burden would then bo on the plaintiffs to show that less than thu rj. quired number of votes had been cast lu its favor. But in view of the fact that they were culled and that In such case tho by-law requires that they bu recorded, wo are compelled to start out with tho propo sltlon that tho minutes on their face do not show that four votes were cast for tho resolution. But it is asserted in thu defen. dants' affidavit that tho minutes nro incor. rect, that lu fact tho President cast his voto In tho affirmative, thus making tho four necessary votes. Two questions nro therefore raised, first, was the President entitled to vote j second, la it competent for the defendant In tbo present proceed ing to contradict or qualify their own re cord. Tbo organization of tho town of Blooms burg differs in many matcrlat respects, from that of boroughs. Thero has been some contrnrlcty of opinion as to the au thority of tlie chief burgess of a borough, Incorporated under tho general law, to take part In and preside over tho delibera tions of tho Council. The affirmative was held In the Common Pleas of Chester coun ty by Butler P. J. (Price against Bcale 0 Luz. Leg. Hog. 149,) and tho negative was held In tho Common Pleas of Schuylkill county, by Pershing P. J. (Com. vs. Kep ner 10 Phlla. 010.) Judgo Conyngham also held the negative under the charter of tho borough of Wllkcsbarrc In a case re ported in 8 Luz. Leg. Reg. 118. But as to the authority of the President of the town of Bloomsburg, tho act of incorporation has lett little room for question. Section 11 of the act of incorporation reads as fol lows : "Tho electors of said town shall elect a Town Council to consist of a president and six members who shall severally hold their offices for tho term of ono year, and tho said Council and tho president thereof shall respectively possess all the powers conferred upon them by this act, and shall perform all tho duties en joined thereby." (Act 4th March 1870 P. L. 844) Section II of tho Act of April 3d 1851 which is made a part of tlie charter reads thus: "The powers of tho corpora tion shall be vested in the corporate offl ccr;dcslgnated in the charter. They shall have power Ac," and section III of the same act provides that a majority of the corporate officers shall constitute a quorum. The president therefore docs not act In n distinct capacity from, but is a constituent part of, that body designated as the Town Council in which tho corporate authority of tho town is vested aud at tho samo time is the person designated by law to preside over its deliberations. He is nono the less a member of tho body, because he is elect ed by tho people, and not by tho body It self, lie Is counted in making up n quo. rum, and there being no negative provi sions in the act, we aro of '.ho opinion that upon a fair construction of the same, he is entitled to vote nt least where his vote Is necessary to decide a tic or to mako up tho number required by the by-law under con sideration. If any other construction were to bo adopted, it might be fairly questioned whether tho by-law would not be inconsistent with that provision of tho gen eral law incorporated in tho charter which makes a majority a quorum. For would not that provision be inoperative if after a quorum of four, tho president being one, were assembled they could take no action, except on ordinary business ? Would it not require a quorum for the transaction of other than ordinary business to consist of live including the president? A by-law must not be Inconsistent with tho charter. Thu latter is tho fundamental law of the corporation. Wo now como to consider tho second question. Tho luw requires tho corporate officers to make full records of their pro ceedings, aud to provide for tho preserva tion thereof" (par. III. sec. 3. Act April 3 1851,) and "to appoint a secre tary" (par.t V ibid). It is tho duty of tho secretary to "attend all the meetings of tho corporation, keep full minutes of their pro ceedings, certify copies of any book, paper, record, by-law, rule, regula tion, ordlnanco or proceeding of the corpo ration under tho seal thereof, which copies so certified shall bo good evidence of the act or thing certified &c.," (sec. 8 Ibid). Tho record therefore, kept by the officer designated by law ,to keep the same la tho primary evidence. Whether it would ex. elude other evidence of unrecorded action, or evidence to explain an ambiguity need not bo decided here. Neither of these things are attempted to bo shown. Tho defendants undertake to justify their ac tion by a regularly and lawfully adopted ordinance, but in order to overcome tho effect of tho averments of tho bill, it seems to us, that they aro obliged to con tradict the primary evidence of tlie method of Its adoption i lu other words, to show by patrol Hint four members voted in thu affirmative when their record shows that only three so voted. Can this bo done? Wo think it cannot. Parol evldcncu may, If necessary, bo admitted to apply a rcsolu Hon or recurded voto of a town to Its prop cr subject mutter, but not, lu general to explain, enlargo or contradict its terms or meaning in respect to matters, (as for cx- nmplo laying out a highway or street) reg ularly within tho Jurisdiction of tho town or its officers, and where the entry of re cord Is mado in pursuance of law." 1 Dil lon Mun. Corp. 2 Ed 6235. The samo learned author saysi "Parol evidence In a collateral "action cannot bo received to contradict the "records of n public corporation required "by law to be kept in writing, or to show "a mistake In the matters as therein re corded" ibid Pec. 230. School District vs. Atherton 12 Mel. 105. Tho case of Mor rison Adnlr vs. City of Lawrence OS Mass. 221 Is in point and wc quote nt some length from the opinion of the court : "Tho only "authority conferred on n city by which "It can legally appropriate money to cele brate a holiday, is found in St. 1801, c. "105 It can bo exercised only in "pursuance of 'a vote ot two-thirds of the "members of each branch of the "City Council present and voting by yea "and nay vote.' Thero was no competent "evidence on trial of this caso that the city "of Lawrence had duly exercised any nu "thority under this statute for the celebra tion of tlie Fourth of July when the plain, "tilt was' injured ; or that any ono was "duly empowered to purchase flrc-worksin "behalf of the city to be used in such cele "bration. Tho only competent evidence "of any such authority is to be found in "tlie record of tho proceedings of the City "Council kept according to tho provisions "of law. By the act it is ex "prcssly provided that each board com "posing the City Council shall keep a "record of its own proceedings and that a "city clerk shall be chosen who shall be "tho clerk of the board of aldermen. "Parol evidence was Inadmissible to prove any acts or proceedings of the city council or that the record of such proceedings as kept by the clerk was erroneous or defee tive." (Sec also Mayhcw vs. Gayhcad 13 Allen 129.) Now, whether our courts would go to the extent of deciding that the corporation could set up against n third person or to af fect rights which might have attached on the faith of the action of the corporate of fleers, a failure on their part to comply with their own by laws wo aro not prepar ed to affirm. Other principles would then bo involved which might affect the ques tion. But after careful consideration and examination of the authorities, wo are clear that the corporate officers themselves may be retrained from proceeding to in cur debt for a public improvement of this nature where their official record shows on Its face that their action will bo in contra vention of the same. Thero Is no hardship in such a ruling of which they can com plain ; for this leaves tho general subject within their control, and tho authority to correct their record, if It is erroneous, is with them and not with tho court. Taking by-laws IV and V together wo conclude that in a proceeding of this nature the minutes should show the yeas and nays having been called four affirmative votes, and that, as they now stand, the injunc tion should for the present be continued, IV. A further objection urged by the plaintiffs is, that, as a meeting Intervened between the adoption of tho original reso lution (Nov. 27th,) and tho adoption of the present chango in tho same, tho action of tho Council was in violation of by-law VI. In this wc cannot concur. Surely that by law was not intended to tie thu hands of tho Council for nil time, and to prevent It from repealing an ordluance, or ndopting another in its stead even though n meeting may have intervened. This, as wo view it, was not n reconsideration of a former or der, vote, or resolution, but an indepen dent act or resolution us much as If tho Council had repealed the former ordinance or adopted an entirely new route. V. Assuming that by the construction of thu sewer over tliu proposed routo tho debt will be increased to the amount cov. ered in tlie bill, we uiu still unublu to con- elude, I rum the evidence now before us, that thu icsoliiliun is invalid on that ac count. Acconliug to the icpoil of the commlllee made June Olh, lSS3,lw per cen lum of the lust usfcebsed value ot thu taxable piopcily of the town Is ifl0,lS0.0O The 1M( H'llt tlt'M l...HI,lH.,i 'J '1 he ili-bl in 1374 was .?10,tiU7.B8 5.827.30 DiffVicnce irl0,853 04 Wo iikstimu f i oui tills ji'poil that Hie ninotiul of existing indebtedness inclined sliieullii! adoption of the couMltiitlon and Hie pii-fccnt piopou-d lucieaso lu tliu suuiu taken together will not cu-ced two per cat. iwioftho last luscsu-d valuation, it so, then tho caso is within the ruling in l'lko Co. vs Itowlaud 13 Nor. 233. If wo are in- correct in tills assumption and have mis apprehended the plaintiffs' position nn op portunity will be affoided for collection. VI. It is averred In thu bill th.it the res. olution of December 10th, 18S3, was ndopt- cd at a special meeting. On the argument it was conceded that this was Inconect. It was a meeting held in pursuance of on adjournment from tho regular monthly meeting of December Glli, 18S3, and licnco special notice to the two absent members of Council was not required. Tho learned author to whoso work we have had fre quent refeience says i "A regular meet ing unless special provision is made to the contrary, may adjourn to a future fixed day, and at such meeting It will lie lawful to transact any business which might have been transacted at the staled meeting ot which it is Indeed, 1ml the continuation" 1 Dillon Mini. Corp. ss 225, This mlgli t not bo conclusive on a coin t of equity, if It satisfactorily appeared that Hie bringing of the matter up for consideration ntan ad journed meeting, when theie was not a full attendance and when It was not expected was done for sinister and rot nipt pur poses or was tho result of a trick to head off opposition and to prevent a full consid eration of the matter by tlie whole Council. But however this may be, we find nothing in the affidavits which would w.nranllhc court in annulling the action of the Coun cil for tliu cause of complaint now under consideration. We may doubt tliu wisdom and expediency of a majonly, In a matter so important as this, standing upon their strict legal light to proceed in the absence of members who have had no, actual no tice or knowledge of the meeting. But wc aro not authorized to say that I he- acted illegally, nor that their action was inspired by unworthy motives to prevent the ml norily from expressing their dissent, nor that it was not tlie result of their deliberate and honest judgment, It would estab lish a very dangerous precedent to infer either of these things from the fact that the action was taken nt nn adjourned meeting and in the absence of other members of the Council. For such a I tiling, while de. signed to protect a minority in their rights. might become-llio subject of gieat abuse by a faction perveisely refusing to attend the regularly adjourned meetings and thus obstructing thu liansaclion of necessary and legitimate business. VII. Finally, several considerations notdi- rcctly affecting tho legality of tliu action of the Council weiu urged upon thu argument as reasons for restraining the defendants from proceeding. Chief of these reasons are : 1st, that thu Sanitarium and the D. L. it W. It. H. depot will not be accommo dated ; 2nd, that tho expense will be in creased : 3rd, that by reason of the ancles n tlie route as now proposed the sewer will be likely In beeoniu obstructed j 4lb, that releases for thu right of way over thu new route have not been procured, while over Hie fonner route they have been ; 5lb, that thu effect of the change will be to re lease thu Normal School from Its contract, aud thus to cast an additional burden ou tliu town. Tho defendants assert, on tho other hand, that some it not all of these ob jections are in fact unfounded, and that the present plan has ndvuntages over the former one, which wc need not here enu merate. We aro not prepared to say that all of the objections to tho present plan can bo sustained, nor that bucIi ns aro well founded arc Jnot counterbalanced by other advantages which it will have over the for mer plan. However this may be, wc feel constrained to say, that tho grounds of ob Jection to a chango in tho route as urged upon tho argument aro well worthy the consideration of thu Council, and If they liavo not already been fully weighed it may not yet bo too into for that body to consider them before proceeding farther, But wo arc clearly convinced, that, for nono of thesu reasons, nor for nil taken together is the court authorized to inter fere. This results from tho uaturo of tho extreme remedy lieru Invoked and tho prln clplcs which control its exercise, as well as from tho Independence of tliu Council from control by thu court, lu matters of discru Hon. In general a preliminary Injunction will not issue In a doubtful casu ; and tho equity power of the court, so fur us it can bo inutked here, extends only "to tho pre. vention or restraint of tho commission or continuance of acts contrary to law and prejudicial to tho interests of the commu nity, or tho rights of individuals." In adopting a plan and routo for tho public sewers In tho first placo and in modify ing and changing tho samo tho Council acts within tho scopo of Its authority. To Unit body Is delegated thu discretion, and its judgment Is not to bo controlled by tho court. We may restrain illegal acts, and may possibly interfere!!! n very clear caso of abuse ofdiscrctlon, and also whero they transcend or mlsjudgo their powers, but not otherwise. When a chancellor under takes to pass upon tho wisdom of their nets ho cntersthelr domain, nml substi tutes his judgment for theirs. Over the subject under consideration the legislature has given to the corporatu authorities largo powers, and their duty to Hie public nnd the municipality demand of them the exer cise of discretion and vigilance. Presump tively they act for the public good, ami if they err in Judgment tho corrtjctlvo power 1b in the pcoplu and not in tho court. Upon this subject Judge mini per tinently Bays i "They may transcend their powers or fall In their duty and thus by acts of commission or of omission become, amenable to tho supervisory control of the court. But to warrant interference by in junction with tho exercise by ihu defen dants of the powers and discretion special ly intrusted to them by thu legislature, the case should lie clear from doubt." Ford vs. the hurgess&c.jO Luz, Leg. Beg, 54. Tho authorities upon this subject are abundant and uniform. 1 Dill. Mun. Corp. 58 ; Carr vs. Northern Liberties 11 C.329; Whar ton vs School directors 0 Wr. 302(opinion of Judge Woodward) j Wain vs.Phlla. 3 Out. 237; Hounfort vs. the Council 3 Pears, 101; Parrish vs. the city of Wllkes-Barro 11 Luz. Leg. Hcg. 241. Except for the reasons affecting the question of the defendants compliance with by-laws four and five wo conclude that tho court has no authority upon tho present showing to interfere to control their ac tion. But until tho objections suggested In that connection arc it-moved the injunc tion must lie continued. And now to-wit Jan. 1884 tho pre llminary injunction heretofore nwarded is continued until further order ; sub ject, however, to Hie right of the town council to proceed in a lawful and reg ular manner in tlie ndoplion of any res olution or ordinance within their legit imate powers relating to tho sewer question, or to validate an I correct their former action and proceedings ; nnd also with leave, on duo notice to the plaintiffs or their solicitors, to move to dissolve or modify this injunc tion for cause shown. Jan. 19th '84 Ciiaki.im E. Bice. Presdt. Judge 11 Jud. Dlst. Presid ing by virtue of tho certificate of Hon. William Elwell Presdt. Judge filed Jan. 1st 1834. jySSOLUTION NOTICE Tho DartncrshlD hcrctoforo pxlstlntr between John Q. Freeze aud Michael F. Kyerly, unit the bu siness arrangement, between John O. Freeze, Mich- aei r. Eyeny ana Htester v. White in tho law ana collection business is this dsy dissolved by mutual consent, by tho retirement otMr. Eyeriy. The dooks ana Dusiness oi mo late arm or Freeze a Kycrly, will remain In tho hands ot John U. Free?o by whom the practice will bo continued. Mr. 11. v. White w 111 remain lu tho law omco hitherto and now occupied by him. where ho can bo consulted on all legal business as heretofore. JUI1 U. niKEZE, MlOlfL F. KYKIOY, It. V. W11ITK. Persons knowing themselves Indebted to the undertlgnod are reuuested to call and mako nay. rccnttoJohnu. Freezo athlsoitlce In llrowern burning, or to Michael F. Kycrly in tho Sheriff's of fice, in the Court House. FltKKZK KYEHXY. Dec 31, 1883, nt. JOTICE. Notice Is hereby given that tho following account has been filed In the court ot common Fleas of Columbia county, and will bo presented to the said court on tho first, Monday of February 18M, and conttrmed after the fourth day of said term unless exceptions bo tiled within thatthuo. 1. The llrst account of C. II. Jackson. Trustee. ot llenjamlu 8. Ulluioro, Dloomsburg. Jan 1S84 (ITothonotary. N OTICE IN PARTITION. IN TIIK COUUT OF COMMON FLEAS FOR T11K COUNTY OF COLUMIIIA : No. 78, December Term, issa. Adam Kllno vs. John Kline, ct. at Writ ot par tition or valuation to Adam Kline, John Kline, William Kline, luiilel Kline, ltebecca Illuc, Wll 11am (jwUher and .Mary Anu his wife, In right of said wife, and Franklin Metz nnd Christiana his wile, lu right of said wife lako notice, that by vlnuo ot tho above writ of partition or valuation, to mo directed, an liimiest will bu held upon thu premises therein described on tho Jtsth day of Jan. uury, lhsi, at IU o'clock a. m., to ascertain and In qulic. among other tilings, whether tho said premises can bo parted ami divided without preju dice to or spoiling tho whole thereof, to tho par ties above named, otherwise to value and ap praise tho same, when and whero you may attend If 3 on see proper. JOHN MOUltKY, Mieillf'soillco, lllooms. Hieiirr. burg, Pec. iti, dec W A UDITOU'S NOTICK. K8TATK OF JOSIl'll IIELWIO, DECEISEU. Tho iinilen-lsiicit auditor appointed by tho Or pliuns' Court of Columbia counly to mako distribu tion of tho funds In hands of tho administrator, in tho estatoot Joseph Uelwlg, deceased, will Kit at his oflleu lu Moumsljiirg, on January 5tli. itsi, at 10 o'clock, a. m when and where all parties In teiestedln suld estate, must appear and present their claims, or bo foreer debarred from any bliuiooisum num. Jan I r. I'. IIIIXMEYF.lt, Audlto
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