| Wentz v. Philadelphia

• Citation: 301 Pa. 261,151 A. 883
• Parties: Wentz v. Philadelphia et al
• Decision Date: 18 July 1930
• Court: United States State Supreme Court of Pennsylvania

151 A. 883

301 Pa. 261

Wentz v. Philadelphia et al

Supreme Court of Pennsylvania

July 18, 1930

Argued June 21, 1930

Original proceeding in equity. No. 202 Miscellaneous Docket No. 5, transferred from C.P. No. 4, Phila. Co., June T. 1930, No. 4331, in case of Ellwood C. Wentz v. Philadelphia the mayor, controller, director of public works and council, naming them.

The bill is dismissed at the cost of plaintiff.

Charles Hunsicker, for plaintiff, filed no printed brief of record.

Franklin S. Edmonds, for Phila. Chamber of Commerce, filed no brief.

Augustus Trask Ashton, City Solicitor, with him T. B. K. Ringe, G. Coe Farrier and Ernest Lowengrund, Assistant City Solicitors, for defendants. -- The purpose of the intended purchase is a public purchase and not a private one.

The title to the ordinance of May 29, 1930, embraces but one subject.

The obtaining of the assent of the local authorities is provided for in the agreement and of course is a condition precedent to the carrying out of this enterprise: Newell v. Bradford City, 18 Pa. C.C.R. 465.

It is unnecessary that all the money which it may be stipulated will eventually be required must be raised and appropriated at the inception of the project.

The purposes envisaged do not constitute a diversion from the assent granted by the electors of the City of Philadelphia: Major v. Aldan Boro., 209 Pa. 247.

The city has authority to make, perform and effectuate the contract of purchase: Phila. v. Fox, 64 Pa. 169; Vidal v. Girard, 2 Howard (U.S.) 127.

The contract does not contemplate the use of any of the loan funds designated for the purchase of rail and marine terminal facilities as such, but merely as necessary adjuncts to a municipal airport.

The city's authority to lease is not limited to the authority given in the Act of 1925, but it has unlimited authority as aforesaid under the Act of 1789 and other acts to lease the property taken in trust for any of the purposes named in the trust reservation.

Before WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

The councils of Philadelphia determined that the establishment of an airport was necessary for the proper development of the city. This conclusion was in line with that reached by other large municipalities throughout the United States, consequent upon the rapid development of carriage of passengers, mail and freight by airship. Within its territorial limits available space for such an undertaking could not be located, but a site was found, suitable for the purpose contemplated, containing 951 acres, which adjoined other land owned by the city applicable for use in connection therewith. Ten acres of the plot were within its boundaries, and the remaining and larger portion in the adjoining Delaware County. By the Act of May 12, 1925, P.L. 614, the legislature provided, "that all cities of the first class within this Commonwealth are hereby authorized and empowered to acquire by lease, purchase, or condemnation proceedings any land lying either within or, with the consent of the local authorities where such land is situated, without the limitations of said city which, in the judgment of the corporate authorities thereof, may be necessary and desirable for the purpose of establishing and maintaining municipal airdromes or aviation landing fields."

After exhaustive investigation of all possible locations, Hog Island, the tract above referred to, owned by the government, was selected, through the United States Shipping Board, as best fitted for the city's airport needs, and councils decided that it should be acquired. An ordinance, approved July 8, 1929, authorized the creation of loans for various purposes, and permitted the increase of the city's indebtedness to supply the necessary funds, subject to the consent of the electors. By section 2, it was provided that of the money so borrowed, $1,000,000 should be used "toward the acquisition of real estate for, and the construction and equipment of, an airport, in Philadelphia or adjacent counties," which expenditure was approved at a special election held September 17, 1929.

Thereafter the sum above mentioned was appropriated by ordinance to the department of public works to effectuate the purchase proposed, and, on May 29, 1930, by further enactment, council authorized and directed the execution and delivery of an agreement with the United States of America to acquire 951 acres, of which all but ten were in Delaware County, setting apart $975,000, or so much thereof as was necessary, to cover the consideration presently payable, as well as the sum required for the immediate filling up of a part of the tract, as demanded by the grantor. The contract set forth in its preamble that, "the City of Philadelphia is desirous of purchasing the said premises for use as an airport, seaplane base, and railroad and marine terminal, and to maintain the same under the authority of the said city under the laws of the Commonwealth of Pennsylvania."

Therein, the land in question was referred to as composed of three parcels, one of slightly more than 84 acres, designated as the seaplane base, situated in the Township of Tinicum, Delaware County; the second as an airport, containing 260 and a fraction acres, in the same municipality and partly in the 40th Ward of the City of Philadelphia, and the third, a rail and marine terminal, containing 610.44 acres, similarly located. Under the terms of the agreement, $450,000 was payable in cash, and, in addition, $500,000 was to be expended for needed improvement of the site. It was further stipulated that a yearly ground rent of $76,500 should be charged for the first ten years, this sum to be thereafter increased to $153,000, and the conveyance was also to be delivered subject to certain covenants to pay taxes, water rents and insurance. The capital value of these annual payments was fixed at $2,550,000, which amount the city reserved the right to extinguish in the future, if deemed expedient, whereupon all claims arising therefrom should terminate. The title was to be transferred by the government in trust for the purposes mentioned, and to be "such as will be insured by the Real Estate Land Title & Trust Co. of Philadelphia, in the same manner as the said title had already been insured to the United States by the same and other companies." It was further agreed that in case the premises should cease to be used as an airport the title shall revert to the United States. By proper action, the moneys presently due, if the contract became effective, were appropriated, but the right to complete the transaction was limited by the owner to 120 days from May 29, 1930, the date of the execution of the contract of sale.

The parcels purchased were to be conveyed for airport purposes, in the development of which the government was deeply interested, and therefore fixed a consideration much less than the actual market value of the land involved. The proposed transfer to the grantee "in trust" was evidently intended to designate the use to which the property should be devoted and not to indicate that the city was to become owner of the land as a technical trustee. Such character of acquisition was permissible, for the municipality was not limited to the purchase of a fee simple title. The Act of March 11, 1789, section 2, 2 Sm. L. 463, provides that the corporate authorities shall "at all times for ever, be able and capable in law to have, purchase, take, receive, possess and enjoy lands, tenements and hereditaments, liberties, franchises and jurisdictions, goods, chattels and effects to them and their successors for ever, or for any other or less estate." This legislation is still in force (Phila. v. Brabender, 201 Pa. 574; Com. v. Walton, 182 Pa. 373), and the right to buy as here proposed, subject to the limitations set forth in the contract, is justified by the Act of 1789, as supplemented by that of 1925, supra. It is unnecessary, therefore, to consider the grant of power to acquire land set forth in other statutes to which reference was made on argument: Act of June 8, 1907, P.L. 488; Act of June 17, 1913, P.L. 520; the Consolidation Act of February 2, 1854, P.L. 21, or the city charter legislation of June 25, 1919, P.L. 581.

Wentz, a taxpayer, filed this bill to restrain the carrying out of the agreement, averring that the land contracted for was not intended solely for airdrome and airport purposes, but principally to establish and maintain a "railroad and marine terminal," which functions were beyond the powers conferred on the city, and not suggested in the title to the ordinance providing funds. It was insisted that the purchase committed the city to an unauthorized business venture, unconnected with airport uses and, if attempted, would involve the expenditure of large additional amounts for a nonmunicipal purpose, the result being the unlawful pledging of the city's credit in violation of article IX, section 7 of the Pa. Constitution. A failure to secure municipal permission of the local authorities, where the land was principally located, was also averred. The last objection need not be considered since the consents of Delaware County and Tinicum Township have been now obtained, as required by the Act of 1925, and filed as a part of the record in this case. The City of Philadelphia, the mayor, director of public works, and members of city council were named as defendants in the proceeding instituted, and, because of the interests of various citizens whom they represent, the Philadelphia Chamber of Commerce, the United Business Men's Association, the Philadelphia Business Progress Association, and the Aero Club of Pennsylvania were also granted leave to appear and file briefs...