Commonwealth ex rel. Holland v. Schneipp

• Decision Date: 18 February 1895
• Docket Number: 220
• Citation: 166 Pa. 401,31 A. 118
• Parties: Commonwealth ex rel. James B. Holland, District Attorney, v. William F. Schneipp, Appellant
• Court: Pennsylvania Supreme Court

31 A. 118

166 Pa. 401

Commonwealth ex rel. James B. Holland, District Attorney, v. William F. Schneipp, Appellant

No. 220

Supreme Court of Pennsylvania

February 18, 1895

Argued February 5, 1895

Appeal, No. 220, July T., 1894, by defendant, from order of C.P. Montgomery Co., June T., 1894, No. 4, awarding writ of ouster. Affirmed.

Quo warranto to determine right of defendant to the office of president of town council of the borough of Bridgeport.

From the record it appeared that, at the February election in 1894, defendant was elected burgess of Bridgeport, and that he qualified for the office. On March 10, 1894, a writ of quo warranto was issued directed to defendant to show by what authority he presided as chief burgess. The writ was issued upon the suggestion that the special provisions of the act of Feb. 27, 1851, incorporating the borough of Bridgeport, and providing that the burgess should preside as president of the town council, were repealed by the act of May 23, 1893, P.L 113. The court, in an opinion by WEAND, J., entered a judgment of ouster.

Error assigned was above order, quoting it; and in awarding execution by injunction.

The decree of the court below is affirmed at the cost of the appellant.

Montgomery Evans, Edward F. Kane with him, for appellant. -- The act of 1893 does not repeal the special charter of 1851: Brown v. County Com., 21 Pa. 37; Malloy v. Reinhard, 115 Pa. 25; Harrisburg v. Sheck, 104 Pa. 53; Evans v. Phillipi, 117 Pa. 226; Trust Co. v Fricke, 152 Pa. 231; Bell v. Allegheny, 149 Pa. 381; Morrison v. Fayette, 127 Pa. 110; Com. v. MacFerron, 152 Pa. 244; Cheltenham Road, 140 Pa. 136.

But if the effect of the act of 1893 will be to repeal the charter of Bridgeport, then since such effect would be destructive of the general scheme of its government, and would thus work results which are special and peculiar to that borough, it is unconstitutional.

N. H. Larzelere, M. M. Gibson with him, for appellee. -- A municipality is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of the government -- essentially a revocable agency having no vested right to any of its powers or franchises -- the charter or act of erection being in no sense a contract with the state, and therefore fully subject to the control of the legislature, who may enlarge or diminish its territorial extent or its functions, may change or modify its internal arrangements, or destroy its very existence, with the mere breath of arbitrary discretion: Phila. v. Fox, 64 Pa. 180; Com. v. MacFerron, 152 Pa. 245; Quinn v. Cumberland Co., 162 Pa. 55.

Before STERRETT, C.J., GREEN, WILLIAMS, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE GREEN:

In the case of Commonwealth ex rel. Braughler v. Weir, 165 Pa. 284, reported now in 35 W.N.C. 556, we considered and decided the very question involved in the present contention. In that case, as in this, the official whose title was in question, was the burgess of a borough (Indiana). We decided that the special law of March 12, 1869, P.L. 344, "regulating the election of burgess and town council of the boroughs of Indiana and Brookville," so far as the election of burgess was concerned, was repealed by the general law of May 23, 1893, P.L. 113. We held that the special repealing clause of the act of 1893 was an express repeal of the act of 1869, with which it was so inconsistent that they could not stand together. The same repealing clause of the same general law (act of 1893), is now invoked as having the same effect in this case upon the law which, prior to 1893, regulated the election of burgess of the borough of Bridgeport in the county of Montgomery. The points of difference are not identical with those appearing in the former case, but they are of the same character and are sufficiently inconsistent with the provisions of the former law in this case to bring it within the operation of the repealing clause of the act of 1893.

In this case the borough was chartered by a special law approved February 27, 1851, P.L. 115, which incorporated within its terms eight sections of the general borough law of 1834, P.L. 118, to wit, sections seven to thirteen, both inclusive, and also section sixteen.

By section three of the act of 1851 the burgess was to be elected for the term of one year, whereas by the act of 1893 the burgess is elected for the term of three years, and is not eligible to election for the next succeeding term, a disqualification...