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

Not Sufficient.
In the following opinion Judge I'D.
wards, yesterday, declared the Provi
dcncc paving ordinance illegal and
granted the injunction prayed for by
Charles S. Lowry restraining the citS
and the controller from proceeding
with the work:
The inquiry I'm this case Involves tn
Validity of AN ordinance of the city @
scranton authorizing the paving of par
OF one of the streets of the city known a
the Providence road and extending iron
Court street in a northerlN or northeastci
ly direction to the city line. IL was con
cedcd by both sides during the argumen
OF the case that the proposed improve
mcnt IL an absolute necessity. The roa
the city, and its condition for years ha
been an eyesore to the community and
menace to public safety.
several questions are raised In tn
plcadings ard were discussed at the hear
ing of the case, but rCne Of them are q
any consequence and none OF them de
serve consideration at our hands cyccp
the one imptr rtant question touching tn
validity of the ordinance directing Tn
paving OF said road. and our findings O
FINDING OF FACTS.
l. The select and common councils O
the city of Scranton have each mem
bership of twenty-one COunCilmCn.
. The ordinance authorizing the pay
ing of Providence road passed the seleC
council June y, 1898, by an affirmative NOt
OF H. which was more than three. fourth
OF all the members of said council -
the same day the ordinance passed tn
common council by a vote of Ii which wa
less than three-fourths Of the members
elect.
CONCLUSIONS OF LAW.
l. The provision in Article V. section
cause y, of the act of 1850, requiring
two-thirds vote of all the members elect
ed to each branch of councils, when tn
property holders along the line OF the i'm
prONement do not petition for paving,
repealed and supplied by section | of tn
act of 1925 CP. J.. 10j), which requires q
affirmative vote of three-f1urthS of tn
members-elcct composing the councils
to enact valid ordinance.
:. The provision in the act of 1895 &c
ferring TO vote of thrcefourths of tn
members-elect composing the councils
10 be construed as meaning thrcC-fourth
OF the membcrs-eiect OF each council.
3. The provision as to a thrce-fourth
vote in the act of 1895 and the prOviSiO
in the act of 1851 requiring a two-third
vote are so inconsistent as to make
impractiCable for them to stand toEethC
4. The ordinance in this case havin
failed to receive a. three. fourths aflirmH
tNc vote in the common council is III
Solutely void.
). While the plaintiff may have a rem
cdy at law in defending against an asses
ment based upon Il void ordinance, III
ilct that the ordinance in question
null and void and the further considers
ton that the result will necessarily al
teCt large number ut property owner
hring the case within the domain OF Cqut
jurisdiction.
G. The injunction prayed for in p.air
tn's bill should be allowed.
DISCUSSION.
We have eliminated from the consila'
alton of this case every question excel
the validity of the ordinance of June
1898 Counsel for plaintiff introduced CV
dence as to the improper advertising {
the ordinance and as to the agreement I
the property owners designating the kin
Of pave they desired. But the objection
on these points We're so trivial as TO wal
rant Us in diSTcgardinE them altogctha
!. Defendants first contention il Iha
the ordinance is valid under the act
1889 and that the act of 1899 providing fC
u thrce-fOurths vote does not repeal I'll
two-third clause Of the act of 1889 in thi
particular. Let MS compare the roviI
ions of the two acts, by placing th"i
side by side:
ACT or 1850, SECJ ACT OF 1895.
~ y. ALL CITIES /
EVERY CITY OFT HIS COMMON
TllETHlRD CLASS WEALTH SHAL
) II \ /. l. IL AN Z II AN l. POWII
POWER to cause To- without petition
be graded, PAVED property owners,
or macadamizod any grade, PAVE, cur
public street, maCadamizG a n
hut councils shall otherwise impraN
rot order any street, amy public street {
lane or alley, or pa,t alley or part there,
thereof, to tie paved within their COrpO
or macddamiZcd at ate limiteS: PRO
the cost of the own NlDED. THE OIL
crS except upon the DINANCE OR OF
petition of 4 major DINANCES \ l
ity of the persons .THORIIING AN
oy ming a majority DIRECTING Sue
of the feet front on NJ PROV EN- L. y
the street, lane or SHALL BE ADOPT
alley, or part tnege- ED AND lINAC1
of to be improved, ED BY THE Al
UNLESS THE OR FlRMATIVE NOT
DIN A Nc &c FOR OF II II r. L J..
SUCH IMPROVE FOURTHS or TIL
MINT SHALL MEMBERS ELEC
Ii L BE Il y COMPOSING TIL
PASSED BY A COuN NCILS q
VOTE OF TWO THE SAID CITE
THIRDS OF ALL and shall be al
NJ +, NJ B i r S o + provedby the maNi
L y c II BRANCH thereof.
OF COUNCILS. IN
which case councils
may direct the i'm
rrCVement to he
made at the cost of
the owners without
petition.
How is it possible for the two-thir,
clause and the three fourths clause
stand together? They are utterly at "
rance with each other and one mu
give way TO the other. The mere stat
ment of this proposition is an argunc
in itself and we do not know how 10 az
to the strength of it. The act of 1895 II.
only two changes, enc a change from
tWO-thirdS vote to a three-fourthS VO
and the other providing for Dublicati6
OF the ordinance Immediately followil
its Introduction. The latter provision
not, strictly considered, a change. II
a new feature not contained in the a
of 1883. At the same time the coumci
IN the present case proceeded to ADVERT
as provided by the act of 1928. If the tw
thirds clause Of the act of 1880 T. I'm fore
the councils would have the right i'm oI
case 10 pass such an ordinance by a tw
thirds vote and in another Caso tn
might require thrce-fOuruhs vote. {
they might start out to secure a thTc
fourths vote and failing in this fall hat
on the act of 1889 and be satisfied with
two-thirds vote. The position seems
us untenable. As authority for the Il
fendants' claim we are referred To 4
case of Hand vs.. Fellows. liS Pa. A5G. Tt
ease decides that the systems for era
ing and paving provided for by the nc
Of 1889 and 1891 were not inconsistent al
might we'll stand together; and that I
later act did not therefore repeal :
| earlier. According to the act of 1889 gra
ing might he charged against a proper
! owner according 10 benefits paving, q
Cording to the foOt-front rule. Tho a
OF 1891. applying To all municipalities a
! thOriZes assessments for grading and pa
| ing according to benefits. These two IS
| TENS may well exist together. There q
| certain conditions where one systc
would be desirable and other conditio
| where the other system would be mo
| beneficial But this principle is not q
| phcable where particular method
| nrOnHlllrn lnnnr ono GNgInm L. nrnenrlL