Baird v. Rice

• Decision Date: 18 January 1871
• Citation: 63 Pa. 489
• Parties: Baird <I>et al. versus</I> Rice <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 489

63 Pa. 489

Baird et al. versus Rice et al.

Supreme Court of Pennsylvania.

January 4, 5 and 6, 1869.

January 18, 1871.

January 4th, 5th and 6th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

In the Supreme Court, Eastern District: in Equity: No 20, to January Term 1871.

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It was argued by George D. Budd, W. Henry Rawle and George W. Biddle, for the complainants; by Charles H. T. Collis, F. Carroll Brewster, Attorney-General, and Meredith (with whom was William B. Mann), for the defendants, and by George W. Woodward, for James D. Whetham and others.

The reporter regrets that his space will not permit him to give such a synopsis even of the arguments as will do justice to them.

The opinion of the court was delivered, January 18th 1871, by

READ, J.

On the 30th March 1870, was passed an act in relation to a site for the public buildings in the city of Philadelphia, providing for their erection on the site which the largest number of votes shall declare their preference for by their ballots. The only material part of this law now, is the proviso: That the buildings shall not be placed on Independence Square.

On the 5th August 1870, another act was approved by the Governor, appointing certain persons commissioners for the erection of the public buildings, required to accommodate the courts, and for all municipal purposes in the city of Philadelphia; and they were authorized and directed to locate them on either Washington Square or Penn Square, as may be determined by a vote of the legally qualified voters of the city of Philadelphia, at the general election in October, one thousand eight hundred and seventy. At this election the qualified voters of the city cast 51,625 votes for Penn Square, and 32,825 votes for Washington Square; being a majority of 18,800 for Penn Square; thus establishing beyond all question, the unbiassed choice of her citizens.

The board which had organized under the law, proceeded to execute the duties prescribed, and were met by a bill in equity, filed by six citizens, and an amended bill by the same individuals.

The first bill was against the commissioners. The amended bill was against the commissioners, and the members of the select and common councils. Each bill has two prayers for injunction; and a motion for a preliminary injunction has been very fully argued on the merits before the Chief Justice and his brethren, whom he has called in for advice.

The question really presented is, whether the plan proposed by the commissioners, to place the public buildings at the intersection of Broad and Market streets, and upon the streets themselves, is legal, or according to the language of counsel, "constitutional." "The plans now being made," says Mr. McArthur, the architect, "have streets of 135 feet in width, on the southern and eastern and western fronts, and 205 feet in width on the northern front. These widths are from the extreme projections of the building, the average widths being much greater."

This involves the original plot of the city as laid out by William Penn, with a square of 8 acres in each quarter of the city, to be kept open for ever, and a centre square of 10 acres in the centre of the city, for buildings for public concerns. Out of 1280 acres, the founder devoted 32 acres for open gardens for ventilation and health, and 10 acres for public buildings. These dedications were made by Penn, more than one hundred and seventy-seven years ago, and upon the faith of which lots were sold, and the city built. The plan before us proposes to carry out one part of Penn's plan, by placing in the centre of his city, a magnificent and most useful structure, to accommodate the municipal business and concerns of near a million of people.

"There are also in each quarter of the city a square of 8 acres, to be for the like uses as the Moorfields are in London." Here is a specific dedication, and when we find what were the uses in Penn's time (1682) of the Moorfields, we then see what were to be the uses of the four squares of 8 acres.

William Penn was an Englishman, and his early colonists were Englishmen, and their habits, customs, manners, usages and terms were English; and in seeking their meaning, we are obliged to look to the mother country. He was born in London in 1644, and died in 1718; and he was twice in Pennsylvania, once in 1682 for two years, and again in 1699 for two years.

It appears by a map of London as it was in 1563 that there were north of the city walls two fields marked on it — one called Schmyt Fyeld, which for a long series of reigns was the field of gallant tilts and tournaments, the other called Finsburie Fyeld. The first is now West Smithfield, in which market the most lucrative and largest business is transacted for the sale of all kinds of cattle in the world. The second comprised gardens, fields or morass, the last being the original state of this part of London. This tract was in the manor of Finsbury, or rather Fensbury, and in the days of the historian Fitzstephen was an errant fen. This map represents the Moor Gate in London Wall opening into it, and a marked tract as far as Finsburie court with a Dogge House some distance to the right of the gate.

These fields were outside of the city of London, and there is a memorandum on the plan or map, "Moorfields not divided nor planted." At the close of Queen Elizabeth's reign and the commencement of King James's reign, Moorfields was divided and planted, as we find by the concurrent authority of Seymour and Maitland in their valuable accounts of London. In Seymour's Survey of London, vol. i., p. 17, it is said, speaking of Moorfields:

"In the mayoralty of Sir Leonard Halliday (Anno 1606) these fields (before an unhealthful place) were turned into pleasant walks, set with trees, compassed with brick walls, and made convenient by sewers under ground for the conveyance of water, which cost the city five thousand pounds, or thereabouts. The lower part of them has been gravelled and railed in a very strong and handsome manner, and the plantations there, which are like so many gardens in the four quarters, were not finished until the present year (Anno 1733), in the mayoralty of John Barber, Esq."

These fields, called Moorfields and West Smithfield, were absolutely prohibited from ever being built upon by the charter of King Charles the First of the 18th October 1638, granting them to the corporation of the city of London, it being an express condition of the grant in this positive language: —

"We will also, and by these presents for us, our heirs and successors, declare and grant that the said mayor and commonalty and citizens and their successors for ever may have, hold and enjoy all those fields called or known by the name of the Inward Moor and Outward Moor, in the parish of St. Giles without Cripplegate, London, St. Stephen in Coleman street, London, and St. Botolph without Bishopsgate, London, or in some or any of them; and also all that field called West Smithfield, in the parish of St. Sepulchre, St. Bartholomew the Great, St. Bartholomew the Less, in the suburbs of London, or in some of them, to the uses, intents and purposes after expressed; and that the said mayor, commonalty, and citizens and their successors may be able to hold in the said field called Smithfield, fairs and markets there to be held, and to take, receive and have pickage, stallage, tolls and profits appertaining, happening, belonging, arising out of the fairs and markets there, to such uses as the same mayor, commonalty and citizens or their predecessors had held or enjoyed, and now hold and enjoy, or ought to have, hold and enjoy the said premises last mentioned, and to no other uses, intents or purposes whatsoever; and that we, our heirs or successors, will not erect or cause to be erected, nor will permit or give leave to any person or persons to erect or build a new one, or any messuages, houses, structures, or edifices in or upon the said field called Inner Moor, or the field called Outer Moor, or the said field called West Smithfield, but that the said separate fields and places be reserved, disposed and continued to such like common and public uses as the same fields heretofore and now are used, disposed or converted to." Maitland's History of London, p. 312.

This charter is specially stated in Norton's Commentaries on the History, Constitution, and Chartered Franchises of the City of London (third edition revised, 1869), p. 400: "The King declaring that he will not allow of these fields to be built upon." In an article in the twenty-eighth volume of the Law Magazine and Law Review on the Charters of the city of London, Mr. Serjeant Pulling, very high authority, says, p. 270, "Charles I. granted further the tracts of open ground, then called Moorfields, and also expressly confirmed the city title...