Meixell v. Borough Council of Borough of Hellertown, Northampton County
| Decision Date | 26 June 1953 |
| Citation | 97 A.2d 822,374 Pa. 412 |
| Parties | MEIXELL v. BOROUGH COUNCIL OF BOROUGH OF HELLERTOWN, NORTHAMPTON COUNTY. |
| Court | Pennsylvania Supreme Court |
Mandamus proceedings by which plaintiff sought to be declared the duly elected burgess to fill unexpired term of chief burgess of borough council. The Court of Common Pleas of Northampton at No. 16 September Term 1951, in mandamus, Carleton T Woodring, J., entered judgment for defendant, and plaintiff appealed. The Supreme Court, No. 186 January Term, 1953 Musmanno, J., held that balloting by council, without any resolution or similar procedure to effect an election, did not result in election of plaintiff to council, especially when record of council disclosed that business of appointment was deferred to a later date.
Order affirmed.
Philip J. Gahagan, Bethlehem, for appellant.
Milton J. Goodman, Bernard V. O'Hare, Jr., Bethlehem, for appellee.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
On June 4, 1951, Myron D. Parsons, Chief Burgess of Hellertown Pennsylvania, resigned his office; and his resignation was accepted by the Borough Council effective as of June 30 1951. On June 18, 1950, at a regular meeting of the Borough Council (which is made up of nine members), the President announced that the Council would consider the election of a burgess to serve out the unexpired term of Parsons. Three candidates thereupon were placed in nomination, and, after the voting, it was announced that Althrope Meixell (a noncouncilman) had received four votes, Raymond S. Judd (a councilman) three votes, and Victor J. Abel (another councilman) two votes. The Council President, Gerald Wartman, declared that no one had received a majority of the votes, and the Council decided to defer action until the next regular meeting of the Council scheduled for July 2, 1951.
On July 16, 1951, Meixell filed a complaint in mandamus in the courts of Northampton County asking that he be declared the duly elected burgess, since two of the councilmen (Abel and Judd) had disqualified their vote by voting for themselves, contrary to the laws of the Commonwealth. On appeal to this Court from the decision of the Court of Common Pleas which sustained the preliminary objections to Meixell's complaint, this Court upheld the appellant's position, but on May 26, 1952, we handed down a supplemental order granting the defendant leave to make answer to the complaint.[1] The defendant filed its answer and new matter, the plaintiff filed a reply to the new matter, and the resulting issue came on for trial before Judge Woodring, sitting without a jury. On September 15, 1952, the Court entered judgment in favor of the defendant, and the plaintiff has appealed again to this Court.
The salary of the Chief Burgess of Hellertown is only $400 a year, so that it is apparent that the appellant did not initiate and carry forward these expensive legal proceedings for financial profit. But with monetary emoluments go the honor and prestige associated with that of being chief executive of one's own town. Hellertown does not have the size of New York nor the historical grandeur of Rome but for its inhabitants it is a world in itself, and anyone can well be proud of the distinction of being its first citizen. However, even glory can be, and in some situations must be, regulated by statute. The General Assembly of Pennsylvania, by Act of July 10, 1947, P.L.1621, § 22, 53 P.S. § 12871, provides, inter alia, that:
‘ If any vacancy shall occur in the office of burgess * * * by death, resignation, removal from the borough * * * or in any other manner whatsoever, the borough council shall fill such vacancy by appointing, by resolution, a registered elector of the borough * * * to hold such office for the unexpired term of the office.’
When this case was argued here in January, 1952, the minutes of the Council meeting of June 18, 1951, were not before us, so that the record did not show that the indispensable requirement of a resolution had not been complied with.
‘ Whenever the controlling law directs the legislative body to do a particular thing in a certain manner, the thing must be done in that manner.’ McQuillin, Municipal Corp. (2nd Ed.) sec. 663, p. 659.
‘ The limited power and authority with which municipal corporations, as agencies of the state are invested, must be exercised strictly within the lines and limitations prescribed by the lawmaking power.’ Altoona City v. Bowman, 171 Pa. 307, 311, 33 A. 187.
The minutes of June 18, 1951, not only reveal that no resolution (or similar procedure to effect an election) was before the Council, but they disclose affirmatively that the business of appointing a burgess was deferred to a later date:
‘ The President declared that none of the candidates received the required number of votes to be elected; whereupon it was moved by Gregory, seconded by Ward, that Council defer action on the selection of a Burgess until the next regular meeting on July 2nd-motion carried.’
Councilman Ward, who seconded the motion for the postponement until July 2nd, was one of those who had voted for Meixell, so that, in the eyes of one of Meixell's supporters, it was understood that no selection had taken place.
At the July 2nd meeting, another postponement occurred, and this time, the motion for postponement was made by Ward himself and it was seconded by Unangst, another one of the councilmen who had voted for Meixell on June 18th.
Finally, on July 23, 1951, the Council met for the specific purpose of selecting a successor to Myron D. Parsons. Councilman Ward, who had originally voted for Meixell, now placed in nomination the name of Asher S. Kichline, and Councilman Hine nominated Meixell. Eight voted for Kichline...
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