The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-11-22

| ,hrcc-fourths vote in the common council.
.. The second position taken by the de-
| fcudants may be stated thus: COnced-
! ing that the act Of 1895 repCals the act of
/ 1882 in the matter referred TO, and that
| H. needs thrce-fourths vote to pass "a
valid ordinance, then the ordinance in tho
present case Is valid because 1t did re-
| covc thrce-fourths OF the votes of the
! mcmbcrs-cleCt of the councils. This proN-
| osltion Is based upon the phraseologH Of
| the provision in the act OF 1895. We place
the two provisions In parallel columns:
| order any street 80 y. tbaj7 he
ravcu adopted and enacted
| Unless the ordinai C by the affirmative
| for such impro e. vote of thrCc-fourths
mCnt shall have been Of the members
! passed 10y u vote Of elect IMPOSING the
| two-thirds of all the councils OF the said
members Of each cities.
| branch Of councils.
ORDINANCE IS VOID.
As already stated the ordinance which
! We consider void received 10 votes in the
| select council and IL votes In the common
! council making - ii of 81 votes. or
more than three ,drtns of the members
! a very superficial consideration of this
! provision in the act of 1895 that would al
| low such conclusion. Tho argument is
| untcnable The paviE- &C street must
| be authorized by ordina..., and ordi-
| nantcS must be passed 10y each council.
| Councils may by concurrent resolution
| TN
| ton Of general business, ENCEPr THE
| PASSAGE OF ORDINANCES. This is
| tho language of the act of 1889. And when
| an act Of assembly declares that an Ordi-
| nance must he passed by a three fourths
vote of the members-clect composing the
| councils it must necessarily mean "a,
! thrce-fourths vote of the membcrs-elect
| of each council IL the law authorized
! councils to meet in joint convention 20
| pass ordinances, there would he some
merit in the contention. But such is not
| the law. Councils meet In joint conVen-
! tion and elect a city solicitor and other
| officers and it has been held in such cases
| that II does not require a majority of
! each council TO elect; but by express on
! aCtment ordinances must be passed by
| each council acting separately. As an
| argument we might use an illustration.
| suppose the provision in the act of 1850
| providing for n twO-thirdS vote read "a
! twO-thirdS vote Of the membcrS-cicct
| composing the councils" and that the or
dinanco received 10 votes in the select
| council and only in the common COun-
| Gil. This would be threC-fuurths Of the
| total membership of both councils. But an
! ORDINANCE passed by such vote would
! he invalid. Yet the argument for the de-
| PENDANTS leads TO such n conclusion. IT
| appears 10 Us too clear for argument that
| the ordinance involved in the present
| case should have mad the votes of three
! fourthS Of tho mCmOCrS-oleCt of each
| council in order to make it Il valid urdi-
! nance. The paving of Providence road IS
an important and necessary public i'm
| DlpNtUltlil OUT 10 secure alt TlSnlS nI al
! parties concerned, the property owners,
! the city and the contractor. the proceed
ings authorizing the Improvement must
| be based upon a valid ordinance. If we
| should allow the work 20 proceed in the
| present condition of this record the rc.
| suit might be detrimental not only to the
| contractor and to the city but to the prop
erty owners themselves. 1t is better to
| begin the proceedings anew, to pass a new
| ordinance and to comply with the plain
| requirements of the law. 1t appears
=,
| each of the councils that there was no
! difficulty whatever in securing a three
! fnurths vote in each of the councils. hut
| through an oversight evidently, it APP
| ell was one less than the necessary three
| fourths.
ARGUMENT TNTENABLE.
Now, therefore. the above cause having
! been heard by us in open court it is ad-
judged and decrced that the ordinance
| authorizing the Paving of Providence
! road, passed June ., 1S9S and offered in
| evidence in this case is null and void
and that an injunction be issued restrain
ing the defendants from proceeding with
| the paving of said road and from all other
work in connection with the same. as
| prayed for in the prayer of the praintiff'
bill II is further ordered that the costs
of these proceedings be paid by the city
of Scranton.
II. VI. Edwards a. L. J.
1t is not decided as yet whether or
not the matter will he carried to the
supreme court. \ now ordinance will
be introduced at Thursday night s
meeting Of common council. Mr.. Nos-
burg yesterday stated. and i'm ease the
matter is taken up and the appeal sus-
tanned the new ordinance can be per-
mitted to die.
! EN-City Solicitor |. VI. Burns and
O'BIien & Kelly represented the plain
tiffs IN this case The defense was rep
resented by City Solicitor NJ. 4. Nc
Ginlcy, \. \. NOsburg and Major J2V-
cIctt Warren.
Under a decision filed yesterday by
Judge John q. Love, in the Jadwin-
Hurley case, every business coAcerr
in this city and Carbondalc is max.
ing improper and illegal payment OF
it's mercantile tax. and various H.
censed parties are doing business with.
out proper warrant.
In the two cities of this county, the
mercantile tax is paid to the city treas,
urer, while in the townships and hOr.
oughs it is paid to the county treas.
urer
The Act of March 80, 1867, extending
and enlarging the powers Of the city
of Scranton, provided that the select
council should appoint a mercantile
appraiser for the city who should pan
the taxes to the city treasurer. Thi.
power was taken away by the gener.
al Act Of April 20, 1887.
This being the case, Judge Love says.
I'VE have very grave doubts as tC
the right of the city of Scranton tC
receive the mercantile taxes of the sale
city and issue licenses therefore under
, the provisions of the Act of 1867. Be
cause If the city has no authority L
appoint the mercantile appraiser, VIII,
assesses and classifies the dealers, a,
provided by law, and it is the duty o
! the mercantile appraiser TO make hi
, returns of assessment and classified
tiOn of dealers to the county treasurer
where is the basis OF taxation to war
rant the collection Of Il tax or licens,
by the city treasurer. and issue a Ii
3 cense or commission thereon"
CASE AT ISSUE.
In the case which evoked this opin
= ion 9. p. Jadwin sued II. l.. Hurley 70
? per cent. commission on a S4.SoO sail
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