The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-08-16

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Midsummer day in court had its
usual big raft Of business, the Judges
contributing a bushel of opinions and
the attorneys unloading scores of mo-
lions on motters that have been ac-
cumulating during the dog days re-
cess.
The exceptions TO the report of w.
w. Lathrope. the euditor appointed to
pass uoon the appeal of the borough
of Olyphant from the report of the
borough auditors, was discussed at
length by Judge Archibald. The hear
ing before the auditor was confined to
the single matter in dispute, the ac-
counts of NJ. w. Cummings, secretary
of the borough council, as collector
under the borough ordinance Of cleo
tric light rates.
The auditor ruled the borough audi
tors had no authority to settle the ac-
counts of the secretary of the coun-
ellis, as they attempted to do, or OF
anyone appointed to collect the
charges made for the use of electric
lights furnished ty the borough. In
this court concurs, saying that the
borough secretary is not included in
the list of officers who must account to
the municipal auditors. The secretary
as a creature of councils, is answer
able to that body alone.
The whole report, Judge Archibald
rules, except the part of it in which
the auditor draws the above conclu-
sion. must be set aside as embracing
that which it was beyond his power to
go into.
REGARDING COSTS.
In dealing with the matter of costs,
Judge Archibald says: 1.-The act of
April Is, 1884 (sec. 103, p. l.. 555,) au-
thoriZes the township as we'll as the
accounting officer to appeal from the
report of tie township auditors. anG
by this must be intended borough au-
ditors as well the word township be-
ing used in its generic serse. -
In the case of an appeal, the costs are
to abide the event of the suit as in
other cases. which means, Of course,
that the losing party is to pay them.
AT first blush in the present in
stance this would seem to put the
costs upon the taxpayers by whom the
appeal has been taken, but upon fur
ther consider alton it will be found that
this is not correct While they are the
parties who by leave of law have set
the proceedings in motion, the real ap-
pellant is the borough or township on
whose behalf and for whose benefit the
appeal is made. This is shown by
direct reference to the terms of the
statutes quoted which give to a tax
payer the right to make in behalf of
the borough, township, ward or dis
trict the appeal allowed" by law.
ut is true a recognizance must be
entered into, by the persons so appeal
ing, with one or more sufficient sure
ties. but this is for the pro-
lection OF the township or borough in
whose name the appea! stands and
which IS thereby in danger, as party,
of having the costs put upon it. The
municipality, however. brought into
the litigation, is a real party to it and
not merely a nominal one. and it's res
possibility for TIE costs follows ac-
cordingly. The liability of the tax
payers and their suretics, If they fail
to reimburse the borough, may come
later. The appeal is dismissed, there
fore, at the cost of TIE borough OF
Olyphant."
One of the interesting Winton mum
icipal muddles was discussed at length
braced in the equity case of Eugene
Taylor and others against the school
district of the borough of Winton and
others. The bill of complaint alleges
that the Wirton school board accepted
the bio Of Brennan & Collins for the
erection of school house at the price
of Sl0,Sl5. which was 81. 065 in excess
of the bid of the Peck Lumber COM
~ nd hnt iS
result of improper and fraudulent prac-
tices.
PRELIMINARY INJUNCTION.
n preliminary irjunction was grant
ed and at the hearing to continue the
rule permanently the school board
came into court and exhibiting a reso-
luton declaring that they had recon-
sidered their action and "resolvcd"
that IL was on second thought improper
TO accept an excessive bid ana so on
asked that the rule against themselves
be made permanent.
1T is somewhat refreshing" Judge
Edwards remarks, "tO fini defendants
coming into court, even a. a late hour,
In a repentant mood, confess!ng the
wrong and asking the court to make
the injunction against them perman-
ent If there is anything inconceiv-
able In a borough government it ought
to be inconceivable that a board of
school directors, the custodians of the
public funds and trustees for the pub
lie, should accept bid from one party
50 900 In excess of the bid of another
party equally responsible, the whole
contract being from eight to ten thous-
and dollars. But IL is unnecessary to
discuss this phase of the case at the
present time. The allegations of the
bill are substantially confessed by the
defendants and unless other rights are
in,periled, tie injunction must he con-
tinued."
The claim of Brennan e. Collins that
the contract had been executed to
them before the injunction issued can
be established at law ii it Is a valid
claim, the court rules and discharges
the rule allowing them to intervene as
defendants. The preliminary injunc.
tion Is continued until further order OF
court
In the case Of Anthony Mahon and
wife against the Life Insurance Clear
ing company OF st. Paul, Judge Ed
wards ruled the affidavits of defense
were sufficient to prevent judgment OF,
all the plaintiffs claim except that
part of II which involves the premiums
on Policies Nos. 3476 and 3479. ON
these two policies the plaintiffs are en-
titled TO judgment
FIRE INSURANCE CASE.
In the case of Henry Be!in, jr,
against the st. Paul Fire and Marine
Insurance company. of Minnesota. the
rule to set aside service OF summons is