Borough of Freeport v. Marks

• Decision Date: 05 November 1868
• Citation: 59 Pa. 253
• Parties: The Borough of Freeport <I>versus</I> Marks.
• Court: Pennsylvania Supreme Court

Page 253

59 Pa. 253

The Borough of Freeport versus Marks.

Supreme Court of Pennsylvania.

October 27, 1868.

November 5, 1868.

October 27th 1868.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Armstrong county: No. 130, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Golden & Neale, for plaintiff in error.—The Bounty Act of March 25th 1864, Pamph. L. 85, Purd. 1364, pl. 120, and its supplements, do not impose obligations on municipal authorities, they merely allow them to incur them: Mifflin Sch. D. v. Learn, 3 P. F. Smith 180; Debolt v. Dunkard Sch. Dist., Id. 214; Meek v. Bayard, Id. 217; Foulke v. W. Bethlehem, Id. 221; Tyson v. Halifax, 1 Id. 9; W. Donegal v. Oldweiler, 5 Id. 257; Guilford v. Zumbro, Id. 432; Musser v. Furgeson, Id. 466. If they had not the power before, they could not ratify them by a subsequent act: Mercer Co. v. P. & E. Railroad, 3 Casey 390; Penna. Railroad v. Zebe, 9 Id. 323.

J. Gilpin (with whom was D. Phelps), for defendant in error, cited Speer v. Blairsville, 14 Wright 150.

The opinion of the court was delivered, November 5th 1868, by AGNEW, J.

Of the numerous assignments of error to the charge of the court in reply to the defendant's points, the plaintiff in error insists upon the 3d and 6th only. The 3d was fully and correctly answered, and the facts fairly submitted to the jury upon the very marrow of the plaintiff's case, to wit, the consideration furnished by him for the bond, and the recognition of it by the corporate authorities. The 6th point was also answered correctly in view of the evidence of the payment of the money of the plaintiff through the committee who had the subscriptions in charge to the authorized receiver, and the recognition of it by the counsel in issuing the bond for it, thus evidencing a ratification of the payment to the receiver under the second branch of the answer.

The principal questions arise under the bills of exceptions contained in the 11th, 12th and 13th assignments of error, all of which can be conveniently considered together. They presented two substantial propositions of proof: First, to show that the passage of the ordinance for the borrowing of the money and issuing of bonds, was brought about through interested motives at the instance of the persons advancing the money, whose influence was exerted upon the members of the council, some of whom were subscribers to the bounty fund.

There was no offer to show that the plaintiff was guilty of any fraud or collusion which would affect the good faith of his subscription and payment of money, or its appropriation to the use of the borough, nor was there any evidence of it. The motives of the members of the council, or the influences under which they acted, cannot be brought to nullify an ordinance duly passed in the legal forms of borough legislation, at a meeting regularly convened for the purpose and within the scope of their corporate powers. The assistant burgess being competent to act, the legality of the action of the council cannot be assailed because the friends of the measure, taking advantage of the accidental absence of the chief burgess, chose to assemble and pass the ordinance, if the meeting was duly convened. The legality of the acts of legislative or of corporate bodies cannot be tested by the motives of the individual members, or the adventitious circumstances they may lay hold of to carry their measures, provided they proceed regularly and act within the scope of their powers. If they be regularly convened, if the purpose be lawful and if their acts are...