The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1896-08-18
Large Number OF OpiniOus Handed Down
by the judges.
.OLYPHANT COUNCIL MUST ACT
Judge Edwards Allows Il Pcrcmptory
COunc ! Ia i.cvv u raX and Perform
the Other Duties That DcvOlvc Upon
It..NO Change Of Venue in the
Jennings Case.

nt IN" summer 10 hand down opinions,
hear motions aud keen the wheels of
justice from becoming clogged.
Yesterday was that day and on account
of the torn up condition of the upper
floors of the court house Judges Arch
pald, GunSter ana Edwards sat in the
arbitration room during the greater
part of the day. They handed down
more than thirty opinions, many of
them of much Importance and heard
motions from fully one-half of the
members of the bar. 1t was record
breaking day with the court.
one of the important opinions handed
down was written by Judss Edwards
and directed that premptory manda-
mus issue against the Olyphant borough
council commanding it to meet forth
with to levy the annual taxes. The
proceedings for the mandamus are the
result of the trouble that has existed in
the borough council since its organiza-
tion last Spring. Judge Edwards opin-
ion in part is as follows:
The petition in this case. at the reia
tion of the burgess of the borough of
Olyphant, asks for Il writ of mandamuS
against the members of the town council
titon that the councl met for organi.a-
tion on March . 1896, and continued to
meet from time TO time until March II,
when Il president was elected. The cleo
tiOn of president was contested and in
proceeding in court was declared valid.
COUNCIL EQUALLY DIVIDED.
The petition, further alleges, that on ac-
count of a division in the council-the
mn yotinpr Siy-thp DllSlneSS
of the borough is neglected, the annual
tax has not been levied, orders and bills
remain unDaid, no provision is made to
meet the interest on outstanding bonds,
I he streets are neglected, the electric
light dues are uncollected. workmen are
clamoring for their pay and the affairs of
The borough are in general disorder and
confusion. We have examined
this question at some length and are SAT-
isiied that the burgess is "A competent re-
lator The office of burgess is an impor-
tant one. BY the act of 1898 his functions
have been separated from those of a MEM
her of the town council. He cannot now
be a member of nor preside over the meet
ingS of the council. He exercises certain
supervisory powers over the action OF the
council. lie is vested with the veto pow
er. He stands as ii Were between the
council ana the people. And if the men,
D''FS Ol tblilt'll tOIliiNt W ulHttSdlu thf
plain and imperative mandates of law and
duty, who would most naturally and prop.
erly interfere. unless it We're the burgess?
The answer made to this question Is
that the burgess Is not personally bene-
iicially interested, and If the purpose is
to enforce a public duty the petition
should be at the relation Of the attorney
general or of the district attorney of the
proper county. We are satis-
fled of his competency as n relator in these
proceedings and that our action in refus-
ing the motion to quash on the grounds Of
his alleged incompetency was proper.
The council Is composed of twelve mem
bers. When meetings are called six at
tend and six stay away. They elected a
president by an accidental miscalcula-
ton on the part of some Of the recalri-
trant members. This appears in the other
case that was before us.
CANNOT BE ALLOWED.
If such conduct is allowed there can be
no government. Bills and claims against
the borough are accumulating; unpaid or
ders are floating around; the annual tax
is not levied and municipal progress is ar
rested. We are clearly of the opinion that
Il peremptory mandamus should issue as
prayed for.
Members of town councils and all pub
lie officials are amenabc to the law. As
was well said by Lowrie. q. j., in Lamb
vs.. Lynd supra: "Oiiicial conduct is nev'r
free from law: it is always regulated more
or less straitly; ii must follow IN" path
prescribed for it; the law Of society and
not individual will Is The measure Of It's
freedom; and it is only thus that ndivid-
ual liberty is secured from official arhi-
trarincss.'
nj accordance with tho FOREGOING opn-
ion We therefore direct that judgment be
entered for the relator, with costs Of suit.
and the eXigency Of the case. in the opin-
ion and discretion of the court requiring
il. We direct the peremptory writ of man
damis to Issue forthwith. commanding
the defendants TO meet at the council
room in The borough of Olyphant To levy
the annual taxes provided by law. ani 10
provide such other measures rs in their
judgment, are Necessary for the govern
ment of said borough.
Judge Gunster dissenied from the
opinion of the court. but did not file an
opinion.
An opinion was handed down ny
Judge Gunster in the injunction pro-
ceCdingS of the borough of Winton
against the Mount Vernon Electric
Street Railway company to restrain
the latter from building an electric
road along the borough streets. Judge
Gunster refuses TO grant a permanent
Injunction and dissolved the prclimin-
ary injunction heretofore granted.
NO CHANGE OF VENUE.
A change of Venue will not be al
lowed i'm the trespass case of John q.
Jennings, of Minooka, against the Le-
high Valley Railroad company as will
be seen from the following taken from
Judge Edwards opinion on the SUBJ
ject:
There is no reason shown why the par
ties cannot have fair trial in this county.
The action belongs to the ordinary class
of negligence cases which are tried in our
courts every term. 1t is true that jury
disagreed once in this case, but that is not
an unusual occurrence, considering the
large number of cases tried in this county.
1t is also true that twice a juror was
Withdrawn, and the case continued; once.
because juror stated during the trial that
he had formed an opinion as to the merits
of the case, and another time on account
of the action of the plaintiffs counsel.
This case is like other cases and should
be tried in the usual course of the admin
lSlTdllOn Vi JUSTICE III ~ chd'lSe
of venue is refused and the rule Is dis
charged.
GILES Is ALL RIGHT.
Bernard Giles will continue to act as
a councilman of the borough of Winton,
Judge Edwards yesterday entering
judgment i'm his favor on a writ of quo
warranto obtained by Burgess Charles
Sheridan. of Winton. At the election
held February Giles was elected coun-
Gilman but his election was contested
on the ground that at he time of the
election he had not paid his taxes within
one year prior to his election. Giles.
after the election, and before the or
ganization of the council, made ten
der of his taxes to the tax collector, who
refused to accept the taxes-in all $26--