In re Annexation of Morrellville Borough

7 Pa. Super. 532, 1898 Pa. Super. LEXIS 337

• Court: Superior Court of Pennsylvania
• Decided: July 29, 1898
• Docket: Appeal, No. 167
• Status: Published

Opinion

Opinion by

Rice, P. J.,

This was a proceeding growing out of the annexation of the borough of Morrellville to the city of Johnstown.

The case came into the court of quarter sessions upon the joint petition of the presidents of the select and the common council, acting by direction of a concurrent resolution of the bodies, over which they presided, and on their own behalf as citizens of the city, praying the court to make such order or decree as would give to the people of the annexed territory proper representation in the different branches of the city government, and to appoint election officers and designate places for holding a special election for the election of councilmen and school controllers. The mayor, against the protest of the petitioners, filed a paper specifying certain objections to the annexation proceedings, and denying the power of the court to decree representation in the mode prayed for. After hearing, the court overruled all the objections, and made the decree from which this appeal was taken by the mayor.

The material provisions of the Act of May 23,1889, P. L. 277, 280, governing the annexation of an adjacent borough to a city of the third class are as follows:

Section 1. Any borough .... adjoining any city of the third class .... may be annexed to such adjoining city in the following manner, namely: . The town council may pass an ordinance for such annexation whenever three-fifths of the taxable inhabitants of such borough shall present a petition asking therefor.

Sec. 2. Upon the presentation to the councils of such city of a certified copy of the ordinance .... said councils may by ordinance annex such borough to said city.

Sec. 3. The action of said city councils shall be final and conclusive, unless an appeal be taken therefrom within ten days' to the court of quarter sessions of the county. Upon such appeal the clerks of said city councils and of said borough council shall certify to said court all the papers and proceedings in the case, whereupon the court shall examine and inquire, and if the proceedings appear to have been in conformity with law,' shall approve the same.

Sec. 5. Whenever any borough .... shall be annexed to an adjoining or adjacent city, as hereinbefore provided, it shall be the duty of the court, upon petition and proof, to make such order or decree as will give to the people of the annexed territory representation in the different branches of government of said city, by including said territory within the limits of an adjacent ward or wards or by creating a new ward thereof, and said court shall, in case of the creation of a new ward, appoint the election officers and place for holding election of ward officers, and for that purpose may order a special election, if said court shall deem the same necessary, to be conducted in the manner provided by law for conducting municipal elections.”

Passing, for the present, the question whether the mayor, as mayor or as a private citizen, had such interest as gave him a light to appeal from the decree, we shall proceed to a consideration of the several objections urged upon our attention, stating them as nearly as possible in the language of counsel, and referring to the pertinent facts as it becomes necessary.

1. Objection is made to the exercise of jurisdiction by the .quarter sessions upon the ground that the petition was not presented by the proper parties. Doubtless the mayor might have presented the petition but there is nothing in the act which made it his exclusive duty to do so. When annexation becomes complete by appropriate proceedings of the two municipalities, the law contemplates that the people of the annexed territory shall be represented in the different branches of the city government, and surely it was not intended that the mayor might nullify the law by his refusal to act. Further, this is not a matter which concerns the people of the annexed territory only. All the citizens of the city, as newly constituted, are interested in having the city councils, for example, made up of such members duly elected as the law prescribes, and we find nothing in the letter or spirit of the law which forbids them to invoke the exercise of the jurisdiction of the court to accomplish that result. When it is remembered further, that these petitioners acted by direction of the legislative bodies, which, for the time being represented, and presumably expressed the will of the people of the city as a whole, it is impossible to question the propriety of the action of the court in recognizing them as qualified to make the petition.

2. It is argued that the court had no jurisdiction to make the decree because it had no sufficient proof (1) of the presentation to the borough council of a petition of three fifths of the taxable inhabitants of the borough of Morrellville asking for the annexation, or (2) of the legal enactment by the city of Johnstown of the annexation ordinance. But both of these facts were distinctly averred in the petition, which was verified by affidavit and copies of the ordinances of the borough and the city, and duly certified copies of the minutes of the city councils showing the passage of the ordinance were annexed thereto. No adverse presumption can arise here from the fact that the copy of the ordinance annexed to the petition was not certified by the city clerk. True, the act regulating the government of cities of the third class provides that “ all ordinances may be proved by the certificate of the city clerk under the corporate seal,” but this is not exclusive of other methods, as for example the production of the record of the original. Where all the jurisdictional facts are averred in the manner above described, the court has power to act, and, as the law provides no mode of bringing on the record the evidence given on the hearing, we are bound by the most familiar jarinciples to presume on appeal that it was sufficient to satisfy the conscience of the court that the city ordinance was duly passed by councils. The effect of the attempted veto of the ordinance will be considered under another head. As to the other branch of the objection we remark, that there is nothing-in the statute which makes it absolutely essential that the inhabitants’ petition to the borough council or a copy thereof, shall be annexed to and made part of the petition for representation. The legislature has provided in the third section a mode whereby the court may acquire jurisdiction to examine and determine whether the proceedings have been in conformity to law. If an appeal had been taken as provided in that section it would have been the duty of the clerk of the borough council to certify to the court all the papers in the proceeding-including the inhabitants’ petition, and upon the hearing- of such appeal the sufficiency of the petition both in respect to the number and also the qualifications of the signers might have been inquired into. It may be questioned whether it could be inquired into in a supplementary proceeding like the present. But, be that as it may, the fact that there was such a petition not having been controverted in any way in the court below it was fully justified in accepting the sworn averment of the fact, and the recital thereof in the borough ordinance, as sufficient proof.

3. The minutes of common council, a copy of which was attached to the petition, show that on third reading of the proposed ordinance the clerk stated that the word “hereafter ” in line one section four was a typographical error and should be “heretofore.” This was ordered to be corrected, and the ordinance was then passed finally by a unanimous vote. As corrected, the section reads as follows : “ Sec. 4. That all ordinances or parts of ordinances heretofore passed by said borough and now existing in said borough relating to the government of the same are hereby repealed.” That the use of the word “hereafter” was a typographical or.a clerical blunder is so obvious as to preclude every manner of doubt. The actual physical correction of it was unnecessary; for without it the section would be construed precisely as it now reads. The context would correct the printer’s blunder : Endlich on Int. of Stat. par. 319; Keller v. Com., 71 Pa. 413; Lancaster v. Lancaster, 160 Pa. 411; s. c. 170 Pa. 108; Lancaster v. Frey, 128 Pa. 593; Com. v. Marshall, 69 Pa. 328. It was no more an amendment, i. e., an alteration or change, of the bill within the meaning of art. IY, sec. 3 of the Act of 1889, P. L. 277, than would have been the dotting of an “ i ” or the crossing of a “ t,” or the correction of the spelling of a word, and the omission to have the section reprinted as thus corrected did not invalidate the ordinance as a whole.

4. Section 2 of article 14 of the act of 1889, p. 277, declares : “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title.” The title of the city ordinance is : “ An ordinance annexing the borough of Morrellville to the city of Johnstown, and designated the several wards thereof.” The first section declares that the territory comprising the borough of Morrellville, “ as is shown by the charter of said borough which is duly recorded and the several decrees of the court relative to the boundary lines and subdivisions of said borough into wards as is fully shown on the borough map be and the same is hereby annexed to and made part of the city of Johnstown,” etc.

The second section declares that the three wards of the borough, taking them in the order in which they were numbered, shall be known and designated respectively as the twentieth, nineteenth and eighteenth wards of the city. No exception can be taken to the sufficiency of the title, but it is earnestly contended that the whole ordinance is void because it contains two subjects. As. this clause of the act of 1889 is identical in language with the clause in the constitution relating to acts of the legislature the decisions construing the latter are in point. It has been held “ that if the title of an act actually indicates, and the act itself actually embraces, two distinct objects, when the constitution says it shall embrace but one, the whole act must be treated as void from the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other: ” Cooley’s Const. Lim. 177. We may concede the correctness of this statement of the doctrine, which Judge Cooley says is recognized in all the cases, without conceding its unvarying application where the legislation upon one of the subjects embraced in the act is void for constitutional reasons and that upon the other subject is free from objection. These may be so interwoven and dependent one upon the other that it is impossible for the court to do otherwise than to declare the whole act void. Ayar’s Appeal, 122 Pa. 266, is a notable instance. But frequently, it is possible in such cases to separate the good provisions from the bad and to declare the act valid in part and void in part although if all were allowed to stand it might seem to embrace more than one subject. It is generally conceded that this may be done, where the legislation upon one subject is void because not sufficiently in cheated in the title. I see no good reason why the same may not be done when the legislation upon one subject is void for any other constitutional reason, provided, and this is a qualification of general application, that that which is left is complete in itself, capable of being executed, and not so interwoven with and dependent on the unconstitutional provisions as irresistibly to lead to the conclusion that if all could not be carried into effect none would have received legislative action. But we have discussed the general question as to the authority of the courts to recognize the validity of part of an act containing more than one subject as far as, perhaps farther than, is necessary. For, as the learned judge of the court below has clearly pointed out, there is nothing in the ordinance which is not embraced in the title, or which does not relate and is not cognate to the annexation of the borough to the city. It does not come within the mischief to be prevented by tbe const! tntional or statutory provisions under consideration. This, we think, would be conceded if the councils had power in any form to enact the provision designating the numbers by which the wards into which the annexed territory had been subdivided should thereafter be known. But, notwithstanding the very ingenious and plausible argument of the appellant’s counsel we are unable to conclude that the question whether the ordinance conflicts with sec. 2, art. 14, of the act of 1889, can be made to turn upon the decision as to the power of the councils to enact the particular provision referred to. The councils may have exceeded their powers in this particular, but in determining whether the ordinance contains two distinct and unrelated subjects and is therefore void the ordinary tests must be applied. Following the decisions construing the constitutional provision we concur with the court below in holding that the objection that the ordinance contains two subjects and is therefore void cannot be sustained.

5. It is claimed that the mayor had power to veto the ordinance and exercised it. The preliminary question is one of fact. Did the mayor return the ordinance with his objections to the branch of councils wherein it originated within fifteen days from the date of its presentation, to him? (Sec. 7, art. 6, of the act of 1889, p. 277.) The limits of our jurisdiction to inquire into this matter of fact are much narrower than those of the quarter sessions. The case came into this court by what is called an appeal, but as has been pointed out in numerous decisions of the Supreme Court, which have been followed by this court, the Act of May 9, 1889, P. L. 158 providing that all appellate proceedings in the Supreme Court theretofore taken by writ of error, appeal or certiorari should thereafter be taken in a proceeding called an appeal, does not extend the right of review or change its extent in cases already provided for or modify in any manner its exercise. Nor was any change in these particulars wrought by the Act of June 24, 1895, P. L. 212, creating the Superior Court. This court has the same appellate jurisdiction that the Supreme Court had in the classes of cases enumerated in the act of 1895, and no greater, and it is to be exercised in precisely the same way. Prior to these acts the general rule was, that whenever a new jurisdiction was created by statute and the court or judge exercising it proceeded in a summary method, or in a new course different from the common law, a certiorari would lie: Commissioners’ Appeal, 57 Pa. 452. This was a proceeding of that nature, hence our jurisdiction on appeal from the decree in question is that which the Supreme Court had on certiorari. It is limited to a review of the proceedings of the quarter sessions, for the purpose of determining the extent and limits of its power and the regularity of its exercise. These questions are to be determined by an inspection of the record, for that is all that the writ of certiorari brings up. The evidence given on the hearing, whether consisting of ex parte affidavits or the sworn testimony of witnesses duly examined, was for the information of the court that had exclusive and final jurisdiction to decide disputed questions of fact, but is not before us for the purpose of enabling us to determine whether the quarter sessions decided them correctly, for that is beyond our jurisdiction. This is too well settled to require the citation of authority, but it needs to be emphasized in order to prevent misconstruction of the scope of our ruling.

From the petition and accompanying extracts from the minutes of the common council duly certified it appears that the ordinance originated in that body and was passed finally on October 19; that the mayor issued a call for a special meeting on November 3, “to consider mayor’s message and other general business; ” that the clerk and four members of the common council met at the time appointed, but, less than a quorum being present, the meeting adjourned without the transaction of any business, and so far as the minutes show, the presentation of any message from the mayor. The next meeting was on November 9, when, according to the minutes, the following occurred:

“ The Mayor having returned, without his approval, Special Ordinance No. entitled, An Ordinance Annexing the Borough of Morrellville to the city of Johnstown, and Designating the Several Wards of the Same. President Peden stated and ruled as follows: ‘ The Ordinance Annexing the Borough of Morrellville to the city of Johnstown and Designating the Several Wards of the Same,’ having been passed finally on Oct. 19, 1897, and presented to the Mayor on Oct. 20, 1897, and being by him returned to Common Council with his objections on Nov. 9, 1897,1 declare that not having been returned to the council in which it originated -within the fifteen (15) days allowed by law no further action is necessary thereon. No appeal was taken from the ruling of the chair.”

Was the return of the ordinance on November 9, with the mayor’s objections, such compliance with sect. 7, art. 6 of the act of 1889, as made further action of the councils necessary? We think not. The fact that there will be no regular meeting of the council within fifteen days after the presentation of an ordinance to the mayor does not affect the decision of the question. He may call a special meeting of council for the purpose of reconsidering an ordinance which he refuses to approve. Thus, as was said in a case construing a similar provision of the act of 1874, there is no necessity for an extension beyond the period of fifteen days by judicial implication or construction of the statute: Penna. Globe Gas-light Co. v. Scranton, 97 Pa. 538. We agree with appellant’s counsel that a majority of the members of council cannot effectually prevent the mayor from exercising his veto power by neglect or refusal to attend the special meeting thus called. If, therefore, as he asserted in the court below the ordinance with his message vetoing the same directed to the common council was delivered unto the possession of its clerk at the special meeting on November 3, and the attention of the members present was called thereto, he did all that was possible for him to do; and when the mayor has done his full duty the statute is not to receive a construction that will make it possible for a recalcitrant majority of the council to nullify his veto by a bare refusal to do theirs. But was the ordinance returned on November 3, in the manner above described to the body in which it originated? Presumptively not, if the minutes of that meeting are to be taken as evidence of what occurred. We agree, however, that they are not conclusive. Proof that the veto message was presented would not necessarily contradict the minutes of that meeting; it would only supply an omission, See School Directors v. McBride, 22 Pa. 215, Furniture Co. v. School Dist., 158 Pa. 35, Roland v. School Dist., 161 Pa. 102, and Traction Co. v. Canal Co., 1 Pa. Superior Ct. 409. But being the subject of extraneous proof, it was the exclusive province of the court below to decide whether the evidence adduced on the hearing established the fact or not and, as we have already suggested, its decision is not reviewable here. Taking this view of the case it is unnecessary to discuss the question as to the power of the mayor to veto such an ordinance.

6. If we are correct in the foregoing conclusions, the annexation of the borough to the city was an accomplished fact, and the court had jurisdiction to make a decree giving.the people proper representation in the different branches of the city government. The act provides that this may be done “ by including said territory within the limits of an adjacent ward or wards, or by creating a new ward thereof.” It is argued that these methods are exclusive, and, for the present it may be conceded that they are so where the territory is not already subdivided. It is to be borne in mind, however, that this territory had been subdivided into wards by appropriate proceedings, and, presumably, for good reasons, which, so far as we know, may still exist notwithstanding the inclusion of the territory within the city limits. Therefore, the question is, not whether the court could create more than one ward out of the annexed territory, but whether the annexation, ipso facto, obliterated the wards already created, and for purposes of representation left the annexed territory as if they had never existed. If that was the effect of annexation, it would require too great straining of the language of the act to hold that the court had power to re-establish the wards. But in the absence of a clear legislative intent to destroy the existing subdivisions of the territory, the general power to make such decree as would give the people proper representation would include the power to recognize the existing wards in making such decree. In this view the particular provision above quoted might properly be construed to apply to eases, where, without such action, there Avould be no mode of giving the people proper representation, but not to control the discretion of the court in cases like the present, where it would be unnecessary. It must be confessed however that the question is not free from difficulty, but our opinion is that this is the true construction of the act, and therefore, that the court did not exceed its powers in decreeing representation by wards.

The maxim expressio unius est exclusio alterius is always to be applied with caution in the construction of statutes, and in general it may be said that if there is some special reason for mentioning one thing in a statute and none for mentioning another the expression of the former will not be an exclusion of the other.

7. It is argued, that the act of 1889 governing cities of the third class does not recognize the school district as a branch of the city government; nor are school directors ward officers within the meaning of the section authorizing a special election, and in support of this argument the case of Chalfant v. Edwards, 173 Pa. 246, is cited. But assuming this to be true, what standing has the mayor to bring up for review a decree ordering an election of school directors ? Clearly none. As well might the president of the school board appeal from the decree ordering an election of councilmen. Nor as a private citizen can the mayor attack the election of school controllers in the collateral way. He certainly could not by mandamus or quo warranto because he alleges no injury peculiar to himself. The election having been held, the matter affects all the people of the school district and the proceeding to investigate it must be instituted by some person having a special interest different from that of every member of the general public or by the officer authorized to intervene in the name of the commonwealth.

Finding no error in the record of which the appellant has a right to cpmplain, the assignments of error are overruled, and the proceedings are affirmed.