Shaub v. City of Lancaster

• Decision Date: 19 July 1893
• Docket Number: 42
• Citation: 26 A. 1067,156 Pa. 362
• Parties: Shaub, Appellant, v. Lancaster City
• Court: Pennsylvania Supreme Court

26 A. 1067

156 Pa. 362

Shaub, Appellant, v. Lancaster City

No. 42

Supreme Court of Pennsylvania

July 19, 1893

Argued May 18, 1893

Appeal, No. 42, July T., 1893, by plaintiff, Jacob C. Shaub from order of C.P. Lancaster Co., Aug. T., 1891, No. 3 entering judgment of nonsuit.

At the trial before LIVINGSTON, P.J., it appeared that on Feb. 4, 1874, the select and common councils of the city of Lancaster passed the following resolution:

"Sec. 2. That the mayor be and is hereby authorized and directed to offer a reward of five hundred dollars for the arrest and conviction of any party or parties setting fire to buildings of any description within the limits of the city, and all other resolutions in conflict herewith are hereby repealed."

In accordance with the provisions of the ordinance, and immediately after its passage, on Feb. 16, 1874, W. D. Stauffer, who was then mayor of the city of Lancaster, published a notice in the public newspapers of the city, offering a general reward for the detection and conviction of incendiaries. In 1879, John T. McGonigle, who was then mayor of the city, also published a similar notice, and on April 15, 1881, he again caused to be inserted in the "Lancaster Examiner" the following:

"$500 REWARD.

"By virtue of the authority given me by the resolution of council of February 4, 1874, I hereby offer a reward of five hundred dollars for the arrest and conviction of any party or parties who have set fire to any of the buildings burnt by incendiary fire within the last year. And the same reward will be paid for the arrest and conviction of any person who may set fire to any building in the future.

"JOHN T. McGONIGLE, Mayor."

On or about March 5 or 6, 1891, there was an incendiary fire at the carriage works of John Feagley, within the limits of the city of Lancaster, and, at the instance of plaintiff, one George Luckenbach was arrested and convicted of the crime, and sentenced to the Huntingdon Reformatory. The plaintiff thereupon demanded the reward from the city authorities, and, upon their refusal to pay the same, brought this suit. The court entered a compulsory nonsuit and subsequently refused to take it off.

Error assigned was (2) refusal to take off nonsuit.

In this case seventeen years had elapsed from the date of the resolution of councils, and ten years, counting from the last proclamation made under it. This is not a reasonable time, and the city cannot be required to pay the rewards upon the evidence as it stood when the nonsuit was entered. The learned judge of the court below was right in entering the compulsory nonsuit and the judgment is affirmed.

Chas. I. Landis and H. M. Houser, for appellant, cited: Act of April 5, 1867, P.L. 783; act of March 20, 1818, P.L. 207; York Borough v. Forscht, 23 Pa. 391; Rinehart v. Lancaster City, 18 W.N. 364.

Wm. R. Brinton and John E. Snyder, for appellee, cited: 17 A. & E. Enc. L., p. 235; Kepner v. Com., 40 Pa. 124; Fuller v. Scranton, 18 W.N. 18; Loring v. Boston, 7 Metc. 409; Loveland v. Detroit, 41 Mich. 367; Gale v. S. Berwick, 51 Me. 174; Hanger v. Des Moines, 52 Iowa 193; Patton v. Stephens, 14 Bush (Ky.) 324; Murphy v. Jacksonville, 18 Fla. 318; Grant v. Bradford, 72 Ind. 455.

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

OPINION

MR. WILLIAMS, JUSTICE

This action was brought to recover a reward of five hundred dollars from the city of Lancaster. The court below held that the plaintiff was not entitled to recover, and entered a compulsory nonsuit. The question raised by the appeal to this court is over the liability of the city. The liability asserted is under a resolution adopted in February, A.D. 1874, by the select and common council, authorizing and directing the mayor of the city to offer a reward of five hundred dollars for the arrest and conviction of any person setting incendiary fires within the limits of the city. In obedience to this resolution, the mayor at once issued a proclamation offering the reward which the resolution authorized and directed. A succeeding mayor issued a similar proclamation in 1879. Another was issued in 1881, both of which recited the resolution of 1874. Ten years after the last proclamation, in March, 1891, an incendiary fire occurred in the city of Lancaster. The plaintiff caused the arrest and conviction of the incendiary. He then applied to the city authorities for the reward offered under the resolution of 1874. Payment was refused, and this action followed.

Upon these facts ought the case to have gone to the jury? This depends upon the nature and effect of the resolution and the proclamation authorized by it. The resolution was not presented to the mayor for his approval. It was not an ordinance or law of the city in form, but an order or direction to another department of the city government to perform an act deemed necessary by councils at the time, in view of circumstances then existing. Such directions are ordinarily temporary in character and effect, and cease to be operative with the emergency or condition that gave rise to them. The plaintiff contends that the form of the action is in this case immaterial, and that the resolution is binding upon the city until it is rescinded or annulled, by reason of the act of 1867. This was an act amending the city charter, and contained the following provision "That it shall not be necessary for any order or resolution of either branch, or to which the concurrence of both branches of the council may be required, to be presented to the mayor for his approval, but the same shall be binding for all purposes; the councils may transact business by an order or resolution, and every such order or resolution shall be filed in the archives of the city, and shall be evidence for the purposes therein contained." This does not authorize legislation by order or resolution, or extend the range of subjects to which such action is applicable. It merely resolves a doubt as to the validity of orders made by the councils in cases proper for such...