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