The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1884-01-25
The sewer Injunction.
JUDGE RICR's opIyIoN.
COLUMBIA COUNTY, ss.

David j. Waller, et al Taxpayers. VS..
George A. Herring, et. al. Presdt., and
Town Council of the Town of Blooms
burg.
In the Court of Common Pleas sitting in
Equity.
No. /, February Term 1884.
Motion for continuance or dissolution of
preliminary injunction.
l. If the present bill were rested upon a
supposed right to compel the Town Coun.
Gil to specifically perform the contract with
the Normal School and the county, it could
not be sustained. The county commission
ers expressly disavow any objection on the
part of the county to the action of the
Council in changing the route of the sewer,
and the Normal School is not party to
the bill. But if it were, it is doubtful if its
contract with the town would give it the
right to appeal to a court of equity to re-
strain the corporate authorities from exer
cising their discretion in the location of the
sewer, even though such action might in
volve change in the route from that had
in view when the contract was made, (see
p. & r. X. r. Co. vs.. City of Philadelphia,
Phila 112.) 1t would be manifestly i'm
proper for us to declare here what effect
such change in the route will have on the
contract. All that we decide is, that the
rights of the Normal School under the con-
tract are private rights, and, 80 far as at
present appears, must be adjudicaed in
another form.
H. For the purposes of the present mo-
ton, the averment that the defendants
threaten to enter upon the lands of one of
the plaintiffs in the bill, against his objec-
ton, tor the proposed sewer is put out of
the case by the denial Of the defendants in
their attidavits that such is their intention.
Hence we need not inquire whether such
fact, if uncontradicted, would constitute an
equity upon which the bill by the present
plaintiffs as taxpayers could be maintained
Ill. The prayer Of the bill therefore, 80
far as material, is for an injunction to re-
strain the defendants, the president and
members of the Town Council Of the town
Va ohoohiobui6 81 AAohA PAoSSSdihB W COu-
struct a proposed common sewer over tho
route designated by the resolution of De-
cember 10, 1888. The resolution referred
to proposes to materially change the route
from that determined upon by previous
resolution adopted November 9th, 1888.
The first ground of objection to the validi-
ty of the action Of the council which we
shall notice is, that the resolution was not
passed by the number of votes required by
the fourth section Of the bylaws which
provides rs follows: ''four members in
Council shall constitute quorum for the
transaction or ordinary business, "
but no resolution or vote provid-
ing for any outlay of money by the town,
or for authorizing or approving any con-
tract, work, Improvement or proceeding
creating or involving any pecuniary obli-
CATION or expenditure by the town shall
be made or passed by less than four votes
in Council" In connection with this by
law the fifth should also be considered. 1t
reads as follows: "The yeas and nays
upon any question to be determined in
Council may be demanded by any member
thereof, and thereupon the same shall be
taken and entered in full upon the min
utes." The minutesread as follows ::
Messrs. Sterling and Rabb moved
the adoption OF the following reso-
luton, viz: Resolved, that the loca-
ton of the main sewer as by resolution
adopted Nov. 9th, be changed and the
amended location be as follows
The yeas and nays were called and
resulted as follows: Yeas, Messrs. Rabb,
Sterling and Hassert. Nay, Mr.. Waller.
The Presdt declared the resolution adopt
ed" II the yeas and nays had not been
recorded in pursuance of call the pre-
sumption would be from the declaration by
the president of the result of the vote, that
the resolution had been regularly passed
and the burden would then be on the
plaintiffs to show that less than the re.
uuirea number of votes had been cast in
its favor But in view of the fact that
they were called and that in such case the
bylaw requires that they be recorded, we
are compelled to start out with the propo-
stion that the minutes on their face do
not show that four votes were cast for the
resolution. But it is asserted in the defen-
dants affidavit that the minutes are incor-
rect, that in fact the President cast his
vote in the affirmative, thus making the
four necessary votes. Two questions are