Evening public ledger. [volume] (Philadelphia [Pa.]) 1914-1942, 1918-06-10
TWO-THlRDS RULE.
AGAIN in COURT.
Judges, However, Assert
Their O. X. ON Transfer .
Bill Will Stand
SUGGEST AN APPEAL

The second assault on the legality of
the S250.0o0 transfer ordinance passed
by Councils without a two-thirds vote
was made before President Judge Bar
ratt and Judge Rogers in Court No. 2
today.
The new suit brought by George w.
Mintzer. as taxpayer. for a prelim-
mary injunction to stop the Controller
from countersigning warrants against
that fund. and to have the measure de-
ciared null and void, was taken UP for
hearing.
j. Louis Breitinger appeared for the
complainant, while City Solicitor Con-
nelly and his chief assistant. Ernest
Lowengrund. represented Controller
Walton and City Treasurer Shoyer.
Mayor Smith was also in court.
Some time ago the question of the
validity of the ordinance, which was
passed by majority vote Of Councils
was decided in the affirmative on a
case stated brought by Peter J. Cava-
naugh, an employe In the Fire Depart
ment, whose warrant was held, up by
the controller, because of the couten-
ton that the transfer bill from which
Cavanaugh was to be paid was illegal
because it did not have two-thirds
vote on its passage by the City Councils
Did Not Appeal
Judge Barratt decided in favor Of
Cavanaugh and directed mandamps
to issue for the payment of his bill
Judge Barratt also at that time dis
missed a petition OF a taxpayer to in
tervene because the particular tax
payer had not shown special injury,
separate and apart from the rest of the
public.
Breitnger took no appeal but revived
the controversy by filing a suit in which
Mintzer as taxpayer was the plain
tiff. but substantially averring the same
grounds Of complaint as in the first
suit.
The second case was first entered in
No. l court and later transferred to
Court No. 2. which heard and deter
mined the original proceeding.
When Judges Barratt and Rogers
called the second case today, Breitinger
appeared to have difficulty in explaining
what he considered a difference between
the present suit and the former which
the court decided in favor of the valid
ity of the ordinance.
Assistant City Solicitor Lowengrund
insisted that precisely the same ques-
tions which had been adjudicated by
the court were raised in the second suit,
and he said the law department was in
an anomalous position in regard to ad-
vising the Controller what to do with
warrants depending on the funds of the
transfer bill for payment
In the prior suit the court specifically
ordered the judgment of Cavanaugh to
be paid. while in teh present case an in
junction was sought to restrain the Con-
troller and the Treasurer from making
any payments.
Judge Criticises Suit
Mr.. Lowengrund, explaining that the
warrants of a number of persons to be
paid from the funds of the transfer ordi-
nance were questioned. contended that
these parties should be Joined in the
suit. Judge Rogers interposed with the
that Mr.. Breitinger evidently
meant to argue that every person with
a warrant against the city for work done
should make it their business to go to
and see that the ordinance
passed to pay them was a valid meas
ure that they must not rely upon Coun-
ellis to do their duty. not even after
a court decision that the action taken
was valid
This is certainly strange doctrine"
Judge Rogers, land as the
question of the validity of the ordinance
was decided by us before. |. personally.
feel that this second suit should be forth
with dismissed. If this court was in
error in upholding the right to pass such
an ordinance by a majority vote, the
proper recourse would be an appeal to
the Supreme Court to review our action"
Decision Stands, Says Court
Counsel for Cavanaugh objected to
the whole subject of the legality Of the
ordinance being reopened.
"es," interjected Judge ROBBERS, "and
the Controller had no right to refuse
to countersign this warrant in face Of
the courts decision and in the absence
of any appeal therefrom. We decided
the legality of this ordinance, and we
will not reverse ourselves unless ordered
to do so by the Supreme Court"
Judge Rogers then conferred with his
colleague, after which Judge Barratt
said the court would permit Mr.. Brett
niger to present his case.
The latter at once contented the or
finance had not the legal requisite num-
Der of votes. The court which remind
I'd him this question had been deter
mined. and directed him to take up what
,e thought We're new points. The at
orney then called to the stand William
Il, FELTON,. chief clerk of Councils, who
vas examined regarding the method by
which the transfer ordinance was passed |
md later approved by the mayor.
Attorney Breitinger then called and |
Questioned Arthur Morrow, secretary of
councils finance covlmittee. concerning |
he items utder the transfer bill, which |
we're meant to be paid by the city treas
lrer from the funds thus transferred.