Seitzinger v. Borough of Tamaqua

• Decision Date: 17 October 1898
• Docket Number: 25
• Citation: 187 Pa. 539,41 A. 454
• Parties: Jacob R. Seitzinger, Appellant, v. The borough of Tamaqua and the Edison Electric Illuminating Co. of Tamaqua
• Court: Pennsylvania Supreme Court

41 A. 454

187 Pa. 539

Jacob R. Seitzinger, Appellant, v. The borough of Tamaqua and the Edison Electric Illuminating Co. of Tamaqua

No. 25

Supreme Court of Pennsylvania

October 17, 1898

Argued February 17, 1898

Appeal, No. 25, Jan. T., 1898, by plaintiff, from decree of C.P. Schuylkill Co., March T., 1897, No. 1, on bill in equity. Affirmed.

Bill in equity to restrain a borough council from entering into a contract for lighting its streets. Before SAVIDGE, P.J., of the 8th judicial district, specially presiding.

On September 2, 1895, the town council of the borough of Tamaqua entered into a written contract with the Edison Electric Illuminating Company for lighting the streets of the borough pursuant to a resolution of council passed August 26, 1895 and duly approved by the chief burgess. The contract was for five years, and provided for eighty, ten amperes, fifty volt, 2,000 candle power, arc lights, at $75.00 per light per year, to be paid monthly.

On the faith of the contract the Edison Company enlarged its plant, at great expense and, since December 1, 1895, has been furnishing the lights required. No complaint is made of the efficiency of the service. Prior to December last, the streets were lighted by the same company, incandescent lamps being used. The Edison Company had the only electric lighting plant in the town. On February 20, 1895, an election, authorized by resolution of town council, was held on the question of increasing the borough indebtedness $25,000, for the purpose of providing a town light and power plant. The proposition carried by a large majority.

It was contended that the contract in question ought to be annulled, because (a) council was concluded by the will of the people expressed at the polls and could not, thereafter, contract with a private concern for street lighting service, but were bound to provide the borough plant, for which the increased indebtedness was authorized, (b) the contract was illegal, not having been authorized by borough ordinance, (c) the borough authorities could not contract for a longer term than one year, (d) the contract was improvident and the prices to be paid excessive.

The trial court dismissed the bill.

The facts appear by the opinion of the Supreme Court.

Error assigned was decree dismissing bill.

Decree affirmed and appeal dismissed at the cost of the appellant.

J. O. Ulrich, with him J. W. Ryon, for appellant. -- Any regulation of the lighting of streets must be by ordinance: Com. v. Beaver Boro., 171 Pa. 542; Kepner v. Com., 40 Pa. 124; In re Seventh St. Lebanon City, 5 Dist. Rep. 591; Borough of Milford v. Milford Water Co., 124 Pa. 610; Penna. Globe Gaslight Co. v. Scranton, 97 Pa. 538; Larimer & L. St. Ry. v. Larimer Ry., 137 Pa. 533; Butler v. School Dist., 149 Pa. 351; Harrisburg Ry. v. Harrisburg, 7 Pa. C.C.R. 584; L.C. & N.C. v. Inter-County St. Ry., 167 Pa. 126; Waln v. Phila., 99 Pa. 337; Com. v. Buchanan, 6 Kulp, 217; Schenck v. Borough of Olyphant, 181 Pa. 191.

A borough cannot make a contract to light its street for a longer period than one year: McKeesport City v. Pass. Ry. Co., 2 Pa. Superior Ct. 242; Black v. City of Chester, 175 Pa. 101; Crenshaw v. U.S., 134 U.S. 99; Mott v. Penna. R.R., 30 Pa. 9; 1 Dillon on Municipal Corp. sec. 98.

A. W. Schalck, for the borough of Tamaqua. -- The contract did not require the sanction of an ordinance. A resolution duly passed and proved was sufficient: Millvale Borough Case, 162 Pa. 374; Wilkes-Barre v. Wyoming Historical Society, 134 Pa. 616; Shaub v. Lancaster City, 156 Pa. 362.

The terms "ordinance," etc., are not essential, -- a "resolution" answers the same purpose: Com. v. Beaver Boro., 171 Pa. 542; Buchanan v. Beaver Boro., 171 Pa. 567; Ake v. Mason, 101 Pa. 17; Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Reuting v. Titusville, 175 Pa. 520.

A municipality, like a trading or business corporation, unless expressly prohibited by law or restricted by its charter, may enter into any contract necessary to enable it to carry out the powers conferred upon it: 15 Am. & Eng. Ency. of Law, 1080.

If no mode of entering into contracts is prescribed, valid contracts within the scope of the corporate powers may be made, just as natural persons may make like contracts: Dillon on Municipal Corporations (4th ed.), sec. 307; Butler v. Passaic, 44 N.J.L.R. 171; Crawfordsville City v. Braden, 14 Lawyers Rep. Ann. 273; Fisher v. South Williamsport, 1 Pa. Superior Ct. 386; Water Co. v. Waymart Borough, 4 Pa.Super. 211.

H. B. Graeff, for the Edison Electric Illuminating Co. -- The power to contract is incidental to the other powers of a borough: Trickett, Penna. Boro. Law, p. 224; Shaub v. Lancaster City, 156 Pa. 365; Hummelstown Boro. v. Brunner, 17 Pa. C.C.R. 140.

The borough authorities have the right to contract for more than one year: Metropolitan Electric Light Co. v. Reading, 175 Pa. 107; Mott v. Penna. R.R., 30 Pa. 9.

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

OPINION

MR. JUSTICE McCOLLUM:

On September 2, 1895, the borough of Tamaqua contracted with the Edison Electric Illuminating Company for the lighting of its streets for the term of five years, commencing on January 1, 1896. On January 27, 1896, a bill in equity was filed by Jacob R. Seitzinger praying, inter alia, that the borough be restrained by injunction from carrying out its contract with the company. To this bill the borough promptly prepared and filed a complete answer. The hearing on the rule for a preliminary injunction was on bill and answer and the rule was dismissed. The final hearing was also on bill and answer and resulted in the dismissal of the bill.

It is contended on the appeal from the decree dismissing the bill that it is not within the lawful power of the borough to enter into a contract for lighting its streets for a period of more than one year, and that even if it has such power the vote to increase its indebtedness for the purpose of establishing an electric plant is a bar to the exercise of it. It is also claimed that if the above contention is overruled there is still another objection to the contract which is fatal to its validity. The objection is that the contract was not preceded by an ordinance, or by a resolution transcribed in the ordinance book and duly advertised. It is admitted, however, that the contract was preceded by a resolution which was "duly approved and signed by the chief burgess of the borough," and that it was entered into in pursuance of and in accordance with said resolution. The sufficiency of the resolution thus approved is not questioned by the appellant, and his only ground of attack upon it is the alleged omission to record it in the ordinance book and to duly advertise it. We have carefully examined and considered all the Pennsylvania cases cited by the appellant in support of his contention pertaining to the resolution, and have failed to discover in them any warrant for it. It is a contention which overlooks the fact...