Commonwealth v. City of Wilkes-Barre

101 A. 929, 258 Pa. 130, 1917 Pa. LEXIS 809

Opinion

Opinion by

Mb. Justice Mestrezat,

This is an appeal by the relator from a judgment refusing to grant a writ of mandamus.

On October 3,1916, the city council of Wilkes-Barre, a city of the third class, passed finally an ordinance awarding to the Wilkes-Barre Company a contract for lighting certain streets and public buildings of the city for the term of five years. Within ten days, a petition of qualified electors of the city, signed by voters equal in number to more than twenty per cent, of the entire number of votes cast for all candidates for mayor at the last preceding general municipal election at which a mayor was elected, was presented to and filed with the city council protesting against the passage of the ordinance and requesting its reconsideration and repeal by the council, and, upon failure of the council to repeal the ordinance, that the same be submitted to a vote of the people of the city, as provided in articles nineteen and twenty of the Act of June 27, 1913, P. L. 568. The council neglected and refused to reconsider the ordinance or to submit the same to a vote of the electors of the city. Thereupon, the district attorney of Luzerne County petitioned the court below for a mandamus upon the mayor and city councilmen of the City of Wilkes-Barre commanding them to reconsider the ordinance, and to cause the same, if not repealed, to be submitted to the electors of the city, as provided by the Act of 1913. The mandamus was refused on the ground, as stated in the opinion of the court, that the petition was not preceded by a written request of one hundred electors, prepared by the city clerk, and signed in his office on oath before him, as provided by article nineteen of the Act of 1913. In a concurring opinion, one of the judges of the court joined in refusing the mandamus for the reason that article twenty “is so inconsistent and ambiguous that it ought to be declared inoperative.”

The Act of June 27, 1913, P. L. 568, provides for the incorporation, regulation and government of cities of the third class. Article nineteen provides a method for inaugurating city legislation outside the council, and article twenty prescribes a method for submitting an ordinance to á vote of the electorate before it becomes effective. Article nineteen provides that any proposed ordinance may be submitted to the council by a petition signed by the electors of any city of the third class; and, “upon the written request of one hundred qualified electors, directed to the city clerk,” he shall prepare such petition within ten days, and meanwhile notice shall be given by advertisement that the» petition will be ready for signing at the expiration of the ten days. Ten days more shall be allowed for signatures. The signing shall be done in the city clerk’s office only and the petition shall be retained there at all times during the period of ten days. Each signer shall add to his signature his place of residence and shall make oath before the city clerk that he is a qualified elector of the city and resides at the address given. At the end of the “ten days aforesaid,” and within ten days thereafter, the clerk shall examine the petition and ascertain whether it is signed by voters equal to twenty per centum of all votes cast for all candidates for mayor at the last preceding election, and shall attach to the petition his certificate showing the result of said examination. If the petition shall be certified to contain twenty per centum of the votes cast, as aforesaid, the clerk shall submit the same to the council without delay.

Article twenty provides that “no ordinance passed by the council [with certain exceptions], shall go into effect before ten days from the time of its final passage; and if, during the said ten days,.......a petition signed by electors of the city equal in number to at least twenty per centum of the entire votes for all candidates for mayor at the last preceding......election at which a mayor was elected, protesting against the passage of such ordinance, be presented to the council, the same shall thereupon be suspended from going into operation; and it shall be the cluty of the council to reconsider such ordinance; and, if the same is not entirely repealed, the council shall submit the ordinance, as is provided by subsection (b) of section one of article nineteen of this act, to the vote of the electors of the city,......and such ordinance shall not go into effect or become operative unless a majority of the qualified electors voting on the same shall vote in favor thereof. Said petition shall be prepared, signed and perfected in all respects in accordance with the provisions of said section one of article nineteen, and be examined and certified to by the clerk in all respects ^s therein provided.”

The position of the learned court below and of the appellees is that the petition of protest required by article twenty must “be prepared, signed and perfected in all respects in accordance with the provisions of article nineteen.” It is claimed that such is the plain requirements of article twenty and that a compliance therewith is a prerequisite to a demand for a referendum. It is conceded that the petition of protest presented to the council was not prepared, signed and certified as required by article nineteen, and, therefore, it is contended that the ' council properly refused to act upon it.

The relator maintains that the court misinterpreted article twenty of the act in question, and that the petition of protest is not required to be signed and certified in conformity with the provisions of article nineteen, and that such signing and certification apply only to the petition required to be filed on the refusal of the council to repeal the ordinance. It is further claimed that to apply the requirements of the initiative petition of article, nineteen to the petition of protest in the referendum article would make that part of the last named article inoperative and render it impossible of performance.

In considering certain articles, including nineteen and twenty, of the Act of 1913, in Commonwealth ex rel. Heinly v. Marks, 248 Pa. 518, 522, it was said: “The act in question, like many other attempts to legislate upon advanced lines, gives evidence of having been drawn hastily and without any serious effort to coordinate its various parts; but, under such circumstances, it is the office of the judiciary to apply the estáblished rules of law and construction, and, when possible, to reconcile the various legislative provisions, so that all may stand together' and yet each operate within its own field.” In cases where there is an apparent conflict between different parts of a statute, the general purpose of the legislature must be considered, and, if the language will permit, such construction must be applied as will give effect to every part of the law. A statute will not be construed so as to defeat the object of the legislature if it can reasonably be avoided. Literal construction of the language of a part of an act of assembly cannot prevail if another interpretation is fairly deducible which will better effect the manifest purpose of the general legislative intent. The purpose and intention of the whole statute; as derived therefrom, will control the interpretation of its several parts so that the whole may be made effective. It is presumed, as well on the ground of good faith as on the ground that the legislature-would not do a vain thing, that it intends its acts and every part of them to be valid and capable of being carried out: 2 Lewis’s Sutherland Stat. Con. (2d Ed.), Section 490. “It is the duty of the court,” says Agnew, C. J., in Mauch Chunk v. McGee, 81 Pa. 433, 437, “to reconcile th'e different parts of a law, if it can be reasonably done, rather than to declare any part void, and thus frustrate the legislative action.”

If the petition of protest required by the referendum article of the act must be “prepared, signed and perfected” in accordance with the initiative article, the clause of the article requiring the filing of the petition is incapable of performance and is, therefore, nullified. This is apparent from the provisions of the two articles in question. The referendum article suspends operation of the ordinance for ten days, “and if, during the said ten days,......a petition signed by not less than twenty per cent, of the electors of the city......protesting against the passage of such ordinance, be presented to the council, the same shall thereupon be suspended from going into operation.” This protest must, therefore, be presented to the council within ten days from the final passage of the ordinance, or thereafter it is operative and is a law of the city. The proceedings to initiate legislation under article nineteen, as will be observed, require a written request of one hundred electors to be presented to the city clerk to prepare the petition. He has ten days to prepare the petition, and meanwhile must advertise notice that the petition will be ready for signing at the expiration of such ten days. Ten days more are allowed for signing, which shall be done in the city clerk’s office. At the expiration of this period for signatures, “and within ten days thereafter,” the clerk shall examine the petition, and if the requisite number of voters have not signed, ten days more shall be granted to amend, and, if sufficient signatures have then been obtained, he shall present the petition to the council. It is palpably manifest that a petition could not thus be prepared, signed by at least twenty per cent, of the electors and presented to the council in ten days from the passage of an ordinance, as required by article twenty of the statute. Aside from other requisites of such a petition, which requires at least thirty days for its completion, the clerk, as will be observed, has ten days to prepare the petition and to give notice by advertisement where and when it may be signed, and thereafter the electors have ten days for attaching their signatures. The time for instituting the referendum proceedings by filing a petition and thereby continuing the suspension of the operation of the ordinance will expire and the ordinance become operative before the petition can be signed and presented to the council.

The settled rules of statutory construction, as already pointed out, will not permit such a result if it can reasonably be avoided. We will not presume that the legislature by the language of the enactment intended, ip bad faith, to nullify the referendum article, and thereby defeat its express purpose. There is no ambiguity or uncertainty of purpose in the referendum article. It plainly declares that no ordinance shall go into effect before ten days after its final passage, and if the requisite protest is presented to the council within that time, the operation of the ordinance is suspended, and, if not entirely repealed, it must be submitted to a vote of the electors of the city. The two dominant thoughts in these provisions of the article are the suspension of the operation of the ordinance and its submission to the popular vote. The first is to be carried out by presenting a protest to the council. This may end all further proceedings on the ordinance. The council is required to reconsider the ordinance, and, if it is entirely repealed, the legislation is ended. If, however, such action be not taken by the council, the second step becomes necessary, and the electorate must determine by their votes whether the ordinance shall become a law of the city. The submission is to be made “as is provided by subsection (b) of section one of article nineteen of this act,” which provides, inter alia: “Forthwith, after the clerk shall attach to the petition accompanying such ordinance his certificate of sufficiency, the council shall call a special election unless the general municipal election is fixed within ninety days thereafter.” It was evidently intended that this submission should be made on petition, prepared and signed in accordance with the provisions of article nineteen. The petition of protest was regarded as a preliminary proceeding and as having served its purpose by ■bringing the objections of the electorate to the notice of the council. No elaborate procedure, such as is provided by article nineteen, was deemed by the legislature necessary in simply entering the protest which, if effective, made unnecessary an election and the consequent care and expense required by the machinery of that article in ascertaining the duly qualified electors of the city. The objection that unless the protest is prepared and signed as required by the initiative article it cannot be known if the requisite number of signatures has been obtained is not well taken. If that becomes a question of importance in any case, it must be determined by the courts in the usual way. The burden is upon those entering the protest against the ordinance to show that they have complied with the requirements of the statute as to the number of signers as well as in other respects, and, failing to do so, the protest falls and the ordinance becomes operative and is a law of the city.

Our construction of the referendum article makes it intelligible and enforceable, and, hence, carries out the intention of the legislature in the enactment of the statute.

The judgment refusing the mandamus is reversed, and the writ is ordered to be awarded as prayed for.