The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-13
ARE Entitled
TO The SEATS
ADDITIONAL COMMON COUNCIL
MEN WIN OUT.
After Considering All the Conten-
tions Raised Against the Council
men Being Entitled to a Seat and
a Voice in the Lower Branch Judge
Edwards Decides That They Are
Without Special Merit and That
the Election of Last February Was
Legal and Valid.

Gilman elected last February to their
seats in that body and directs that
the peremptory writ of mandamus
prayed for by the men elected be is
sued. The opinion follows:
The object Of the proceedings in this case is
10 compel the members Of common council ot the
city Of scranton 10 admit and recognize the re-
lators members Of the municipal body. The
relaors CLAIM, their seats by virtue Of the munich
pal election held February ~, 1901. The defend.
ants oppose this the ground that no ap'
portionment had been made as required by law
and that no valid election could he or was held
for additional counclmcn at the election stated
Objections are made on both sides to the suf.
ftenCy of the pleadings. EslrnGlnts counsel
claim that certain averments in the suggestion
of the REALTORS are vague and are mere oonclu-
sons unsupported by facts specifically set forth
The sane objection is made by rcla'n's 'oln-
sci TO the return 10 the inandamus. Parts of the
suggestion and return are open to this Criticism'
hut there are sufficient facts properly stated in
the pcadings 10 enable is 70 consider and detc''
mine the main legal question raised and 10 dis
pose Of the case moon its r,er'S. The controversy
arises because c' ~" tIarstlon Of the city ~
Scranton from the third to the second class ~
cities. The Interpretation Of portions OF two acts
NJ assembly is necessary to the determination OF
the question before us.
Act Of June 2j. 1895, r. T.. 20j. "Section >
The classification Of said cities respectively shall
be aseertained and fixed 10y reference to their
population according 10 the last preceding United
States census. and whenever il shall appear by
any such census that any city NJ the second or
third class has attained a population emitting it
to advance in classification as herein pre-
sCribod. i: shall he the duty Of the governor.
under the great seal Of this commonwealth, TO
certify the fact accordingly, which certificate
shall be entered al large upon the minutes Of
the councils of such city. and recorded in the
office for recording the deeds Of the proper
county.
ABOUT THE ELECTION
at the municipal election occurring NOT loss
than one month after the date Of such certificate,
the proper officers shall he elected to which the
said city will become entitled under the change
in classification, and upon the hrst Monday OF
Aprl next ensuing. the terms Of all officers of
said city then in Office whose offices are suppressed
ed by reason thereof shall cease and determine.
and the city government shall he duly organized.
and shall thereafter be controlled and regulated
by the laws Of this commonwealth applicable
tp the same under the classification hereby fixed
AMI appointed"
lr order 10 enable city TO elect the proper
officers To which she is entitled under the change
in classification, the act provides for the ccrtif'
cate Of the governor. which shall he entered upon
the mngtes Of the councils and recorded in
the Office for recording deeds. and that the elec.
tion shall he held at the municipal election c.
curing not less than lone month after the late
Of the certificate" What done in the case
at bar? The admitted facts show:
I. The certhcate Of the governor is dated Jan
uarv Il, 1901, and was recorded in the Office for
recording Of deeds on the following day.
>. When the councils met the certificate was
entered upon their minutes on those Of the Sc
lect council first, and on January "a, 1901, on the
minutes Of the common council.
3. The mayor Of the city issued his proclama-
tion in the usual form calling for the election Of
! tho additional councilmcn at the next ensuing
| municipal election.
| :. AZ the municipal election held February a
| lf0l each Of the rclators was elected to the ,f
| fce Of common councilman.
| Defendants counsel contend that the office
| Of councilman is NOT in the class Of proper Of
| fcers" referred to the act ~ assembly. OF
| course such contention Is clearly wrong: nor
was it strongly pressed at tho argument. Conn.
| cilmcn cminently officers Of the city.
| Il may be properly said that they and tho mayor
| or recorder constitute the corporation itself
There is no merit in this objection.
TINE WAS PROPER
So far as the act Of 1875 is concerned, and in
| view Of the facts before Us, can see no reason
whatever why the last municipal election was
| not the proper time TO elect the additional com
| mon councilmcn to which the city Of Scrsnt IN
was entitled. The period Of one month is 10
he computed from the date of the governors
| certificate, and not from the time OF the entry
of the certificate upon the minutes of the coun.
ellis Even II the councils knew nothing of the
certificate until January o. when il was entered
| upon the minutes there was ample time for
| them to perform the duties. incumbent upon
| thcm in connection with the increase in the
| number of councilmcn providcd by the law II
.l.. IN, Il.
no, take the placc of Others. They are addi.
| tiop,l op,ors proyided bv the law governing
| cities Of the second class As TO the law recu.
Iatinp tho transition Of a city from one class
TO another, an interesting discussion will he
found in the cases ~ Commonwealth VS.. Wyman,
~ Pa. SOS, and Commonwealth vs.. Macferron,
10 Pa ga
The real contention On the part Of the defense
in this case is that provision had been made
| to ascertain, in the manner and at the time re-
| uuired bv law. the number ~ additional Coun
| cilmcn each ward Of the city was entitled TO-
| This brings us 10 the consideration ~ the act n
| May ~, 1891, +. L. l23. Section one reads
thus:
That LcI,afteT the ratio of representation in
common councils in cities NJ the second clas:
shall ta fixed and determined as follows; In the
month NJ July preceding the next regular muni
cipal election after the passage of this act, and
every fourth year thereafter, the members Of com
mon council shall he apporioned in the follow
ing manner; II shall be the duty Of the asscs
sors Of each ward to return. under oath. a true
and exact 'ctun Of resdan, taxahles, to the preS
dent of the common council on or before the
first dav Of July in each year when an arportion
ment is 10 be made. and at the Hrst meeting o
the councils thereafter joint committee of Ave
two from the select and three from the common
council shall be appointed, who shall examine
the sad returns and divide the whole number
ot tayablcs rs forty, and the quotient shall .ht