The Cambria freeman. [volume] (Ebensburg, Pa.) 1867-1938, 1888-07-13
The Burgess. ON . Back Seat.

On monday OIL last week Judge Johnston hled /
his opinion in the Eoensburg borough case. 1t
will be remembered that at the first meeting of |
the pewly elected town council in April last !
there being three Democrats and three Repubn
cans on the board, the Democrats took the posi-
tfon that the Burgess a member of the
board and had no vote while Burgess Richards
and the Republican members maintained that
the Burgess had q right to preside and in the
case Of tie 10 cast the deciding vote. The Dem
ocratic members of the council, Fergus G Lloyd,
Daniel McGough and NJ. d. Kitten, Esq, were
the plaintiffs in the case. Below we give Judge
Johnston's opinion.
OPINION THE COURT.
The plaintiffs, members of the Town Council of
the borough Of Ebensburg, seek TO restrain the
Esq, from sitting and voting. and otherwise in
termeddling in the ofhcial sessions of the Town
act Of January is ISIS N
all the rights and privileges Of the act Of As
BopoayS o. april . snsaS S snSrn N as si me General
and that under said law the Burgess is not
member Of Council. nor permitted TO participate
The defendant. In his answer. denies:
J.. That the borough Of Ebensburg has ever
cordance with the terms of that act and
? That the provisions Of said act deny TO him
shall address myself to these two questions.
While the respondent denies in his answer that
ever authorized or decreed the adoption of the
act OF 1851, and authorized by the act section 33
the plaintiffs have furnished no record of said
court touehfng the question Of such adoption In
deed. n seems 10 be admitted by all parties that
the records of the Quarter Sessions contain no
entry upon the subject In fault OF such record
the plaintiff has undertaken 10 show the fact by
evidence ahtndd. For this purpose he has, through
an Examiner. called upon the Burgess of 1875,
and also produced the minute-book of the bor-
ough, toshow that such decree was adopted by the
court entered npon the mInute-book Of the bor-
ough-s and has governed the corporation from that
time I'LL the present
lnaT azffrv
der exception OF defendants counsel. was 10 this
effect: 81 know we petitioned the Court and
lect how on that strength we went on and sur
veyed and extended the borough F; then pro
eoxh a. eAtended then. IN the trst year of me
being Burgess. Thomas Moore discovered some
thing wrong about the extension Of the borough,
and ne Dled objections in court / was held over
as BURGESS for another year until IT would be
settled. and the Court decided IT was all right !;
after that heard nothing more about IT." The
foregoing
Thapfnute-book OF the Town Council of the
borough Of Ebensburg fs introduced, under OBJ
lection. Prom these minutes md that - anu
CESS James Myers Coupc1 Shd Rissa1d Tibboir
John Lloyd. David Jsmes, John Hughes and
Lloyd, seeended by Councilman Hughes. the pc
titiOn Of the Inhabitants adjoining and having
lots and outlots adjoining the borough request
ing TO be annexed thereto. was received Coun-
Gilman Hoover emily dissenting. the ordinance
'ne,eso oeing transcrioed IN the ordinance book"
~ March 4th AT meeting held March 4, 1857.
Present-Burgess, James Myers: John d.
Hughes. Richard Tibbott. Lewis Hoover. The
Following resolution was passed Resolved by
the Burgess and Town Council of the borough Of
Eoensour e that the Burgess be hereby directed
70 apply 70 the Court of Quarter Sessions Of the
Peace OF Cambria county 10 have the provisions
Of the act Of Assembly, An entitled
April, ls5l. extended to the said borough OF Ed
ensbutg.'
'.Is5-: Decree OF the Court Of Quarter Sessions
of Cambria county: Now. to wit March o 1857
1t is ordered and deereed. that the said borough
sIictlon and possess the power and privileges
granted by the act of Assembly OF ls5i entitled
day OF April, ls5i. and the charter Of said boz
pesled. BY TIE CoT,KT."
A copy OF the above decree IS nled among tn.
archives Of the borough.
Attest: JAMES C. NOOK. CLERK
James Myers Council-D j. Jones Lewis
Hoover. X J. Tiobott, and John ID. Hughes. on
January Il, 1857. annexing outlots OF the borough
be and the same is hereby repealed. Carried
unanimously. On motion OF John ID. Hughes, a
petition asking that the borough limits be extend
Ell, be received and that the borough extended
according 70 the desire of said petitioners and
the ordinance relating thereto was directed 20 be
transcribed In the ordinance book and publish
The plaintiff has furnished me with the orGi-
nance book. which corroborates the above and
boundaries of the borough
The defendants counsel earnestly contend
these entries in the minute book cannot make a
record, and that IL requires a production of some
evide nee IRON the records Of the Quarter Ses-
sions te establish the decree adopting the Act Of
ISL We agree that this testimony will not OF
itself, prove the record. But / think this evil
denee may raise a presumption, the evidence
On the 18th January, 1875, the borough Of Eb-
ensburg was erected oy act OF Assembly under
Council Of the borough OF Ebensburg" (See p
L. S54, under the act OF 1851 section e \ The
burg
The extent OF the borou gh under the act of
ls2a Is 6stween HoTner and Ogle streets on the
north and south. and Sugar alley aud Spruce
alley en the east and west. Since 1857 the por-
ton Snnexed by the Town Council extends in
eacn direction from the former limits increas-
ing the area of the borough and its population
have not been advised OF any other possible
means by which the borough OF Ebensburg
now exists and has existed for the last thirty
years. under the provisions OF the act OF 1851
From the date of the minutes of Council, IL
would appear that the court was in session at
titon and decree had been prepared the by
the Court" endOrsenent obtained, and the
any record had been made. OF course this rests
But having acted ostensIbIy under this au
thority and continued 30 to act. with the entire
ae4uieseence OF the contributed authorities
and the In habitants OF the boi ough for upward
Of thirty years, the defendant cannot complain
OF the absence OF the record OF the Quarter
After n period of thirty years scquiescence tho
Iegal presumption arises that all rightly
|
borough of EbensburK much future trouble in
regard 10 taxation, bonds. etc, and preserve the
borough In its present integrity.
But assuming that the Borough Of Ebensburg
within the provisions OF the act Of 1851, is the
Burgess a member OF CounciIt This must de.
pend entirely on the construction OF that Act OF
/ Assembly In our earlier legi slation each bor-
ough was law unto itself. Each community
desiring n borough procured charter of incor-
porAtion for itself from the Legislature. This
became It's own municipal law. The act of 1884
was the first general law which have noticed.
In 1881 IL was supplanted by the act of April Sd
/ OF that year This act bears the Impression OF
/ in its provisions than its predecessor OF 1854
The Craftsman seemed 10 carry the idea OF
National nd State government into municipal
affairs. and separate the legislative from the ex-
| ecutiye power.
Iupiainiy and specifically sets out the duties OF
section OF the Act of 1884 before the Legisla-
tqre. was dropped out The inference ir
plain that what was done intended. The
third clause In the sixth section is also sIguih
cant as TO the duties of the Burgess. This ques-
ton has not reached the Supreme Court IL
has. however, received the construction claimed
/ by the plaintiff in Commonwealth ex. rel. Shipp
Pershing. J.. and LOomis VS. wilkesoarra. l..
Reg. $50 The editor OF Brighigy't Piirdon indi-
tion OF Act OF 1854 out OF Digest.
Per Contra, Judge Butler in Leg. Int, Vol a.
| Council, Notwithstanding Act OF 1851. This
case was decided in 1877, bat does not refer 20
Judge Perxhing's opinion See Price Beale.
1t strange that this question has not reached
/ our hishest court Until IL does feel safe in
iOllohine inc weight OF aulnOrity as IL accOrds
with our own Judgment And now. July 2. lsss.
this case having been fully argued upon the 9th
S.SsSnt nd % sy counsel for Piaintin and de-
thereof. IL was ordered adjudged and decreed as
Iohows. viz: That the said defendant. T Mason
Richards. Burgess OF tie Borough OF Eoen sburg
De restrain ed and enjoined from presiding at the
interfering in their deliberations by voting OF
attempting 20 vote at such meetings and that
ne, the said t. Mason Richards, de pay the costs
By the Court.
RI JOHNSTON, President Judge