Cloverleaf Trailer Sales Co. v. Pleasant Hills Borough

76 A.2d 872, 366 Pa. 116
CourtSupreme Court of Pennsylvania
DecidedNovember 13, 1950
DocketAppeal, 198
StatusPublished
Cited by24 cases

This text of 76 A.2d 872 (Cloverleaf Trailer Sales Co. v. Pleasant Hills Borough) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cloverleaf Trailer Sales Co. v. Pleasant Hills Borough, 76 A.2d 872, 366 Pa. 116 (Pa. 1950).

Opinions

Opinion by

Mr. Justice Chidsey,

Cloverleaf Trailer Sales Company, appellant, filed its complaint in mandamns against the Borough, and council of the Borough of Pleasant Hills and John E. Robinson, borough secretary, appellees, to compel issuance óf a permit for operation and maintenance of a trailer camp within the borough in accordance with Ordinance No. 23, which provides for the regulation of trailer camps. This appeal is from the order’ of the court below sustaining preliminary objections to the complaint and the entry of judgment for appellees.

Cloverleaf Trailer Sales Company, in its complaint, averred, inter alia, that it is the OAvner and operator of a camp as defined in Ordinance No. 23 enacted by the borough on February 9, 1948, and effective on February 13, 1948; that it maintains and operates said camp at the intersection of Lebanon Church Road and Route 51, wholly within the limits of the Borough of Pleasant Hills; that said camp was presently existing on the effective date of said ordinance; that said ordinance has been held valid (Palumbo Appeal, 166 Pa. Superior Ct. 557, 72 A. 2d 789); that on May 11, 1950, appellant by letter requested John E. Robinson, borough secretary, to issue permits to it for the years 1948, 1949 and 1950 for maintenance and operation of its camp; that accompanying said request was a check in amount of $75 as payment for the three permits ; that on May 12, 1950, appellant was advised that said permits could not be issued for the reason that appellant had not filed with the borough the necessary plan and information required by the ordinance; that sections 4 and 5 of the ordinance requiring submission of numerous data with, the application are not applicable to appellant for the reason that they relate only to permits for camps established after the effective date of the ordinance; that the act or duty which appellees [119]*119are required to perform is the issuance of permits to appellant which duty they have refused to perform; and, that there is no other adequate remedy at law.

Appellees’ preliminary objections assert that the complaint does not aver that, since- the effective date of the ordinance appellant’s trailer camps continued without change or that it was in fact the same camp in May, 1950, that it was in February, 1948; that the complaint itself reveals that there was no failure to perform any administrative duty on the part of any of the appellees; that the complaint fails to show the camp was operating lawfully during the years 1948, 1949, and 1950, that it is presently operating lawfully, and, that it will operate lawfully in the future if a permit is issued; and, that the complaint fails to show that information required by section 5 of the ordinance was submitted when application for the permits was made.

Section 2 of the ordinance declares it to be unlawful for any presently existing camp to be maintained or operated unless a permit is issued and section 3 provides for a license fee of $25. Section 4 provides for special application to borough council and issuance of a permit for establishment of a camp. Section 5 of the ordinance provides: “Any person or persons, hereafter applying for a permit for the establishment or maintenance of any camp shall file therewith a copy of the plan of the proposed camp drawn to scale and showing the extent of the area to be used for camp purposes. In said plan shall be set -forth the proposed roadways, driveways, sites for trailers, house-cars, cabins or cottages, the dimensions of the alloted space of each unit, the proposed sanitary provisions* laundry facilities, washroom provisions, methods for garbage disposal, rubbish and sewage disposal, water supply and lighting systems and toilet provisions.”-The remaining sections of the ordinance provide detailed regulations for camps.

[120]*120Appellant concedes that the borough has power to require filing of plans and detailed information as a necessary prerequisite to issuance of a permit for maintenance and operation of its camp. It does not deny that the ordinance in question is a regulatory measure in the interest of public health, safety, morals and welfare and a valid exercise of the police power. It contends, however, that as regards the initial issuance of a permit to it, sections 2 and 3 of the ordinance are solely applicable and that upon a showing of compliance therewith the borough officials are duty bound to issue the requested permits. Appellees contend, and the court below held, that (1) section 5 of the ordinance is applicable to appellant and it is required to submit detailed plans with its application; (2) the complaint fails to aver compliance with the ordinance; and (3) issuance of a permit requires exercise of discretion by borough officials and is not, in the circumstances, a purely ministerial act. The order sustaining preliminary objections and the entry of judgment for appellees will be affirmed.

Section 5 provides that any person or persons “hereafter applying for a permit for the establishment or maintenance of any camp shall file therewith a copy of the plan of the proposed camp drawn to scale and showing the extent of the area to be used for camp purposes”. Of particular application to appellant are the words “hereafter applying for a permit for the establishment or maintenance of any camp”. The words used necessarily relate to the continued maintenance of an existing camp as well as to the establishment of a new camp. The owner of an existing camp is required to apply for a permit for the continued maintenance thereof. The use of the word “or” must be deemed an intentional and deliberate act. Council must be considered to have intended each word used to be effective and not superfluous: Commonwealth v. Mack Bros. Motor Car Co., [121]*121359 Pa. 636, 640, 59 A. 2d 923. This is not a case where “and” and “or” may be'substituted one for the other. The legislative intent may be given effect, by application of the word “or”. No change in language is necessary. See Pennsylvania Labor Relations Board v. Martha Company, 359 Pa. 347, 59 A. 2d 166; Steinruck's Insolvency, 225 Pa. 461, 74 A. 360. Use.of the disjunctive rather than the conjunctive is indicative of’ an intention that section 5 is to apply to those seeking a permit to maintain a camp already in existence as well. as. to those seeking a permit for establishment of a camp.. .

Sections 2 and 3 are not inconsistent with section 5. They can and must be read together. Section 2. requires that the continued and lawful operation of a camp presently existing be dependent upon securing a permit for such purpose from the borough. Section 3 merely determines the amount of the fee to be charged for such permit. These sections necessarily require the filing of an application for a permit and it is in this regard that section 5 applies to appellant..

Appellant further, contends that' use of the word “proposed” in section 5 can relate-only to .camps to-be established in the future- and that use of this word,, in conjunction with the. language used in sections . 2 and 3 clearly reveals an intention to limit the applicability of section 5 to camps not established and operated at the effective date of the ordinance.;Assuming that the words of the ordinance are not clear’ and not free from ambiguity, applicable rules of statutory construction compel a contrary conclusion. A municipal ordinance is in reality a statute and rules of construction applicable to the latter are to be applied with equal force and effect: Marple Township v. Lynam, 151 Pa. Superior Ct.

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Bluebook (online)
76 A.2d 872, 366 Pa. 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cloverleaf-trailer-sales-co-v-pleasant-hills-borough-pa-1950.