City of Philadelphia v. Tryon

• Decision Date: 01 January 1860
• Citation: 35 Pa. 401
• Parties: City of Philadelphia versus Tryon.
• Court: Pennsylvania Supreme Court

Page 401

35 Pa. 401

City of Philadelphia versus Tryon.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

B. H. Brewster, Eldridge, and Sellers, for the plaintiff in error.—The City had power to construct the culvert in question: Grant on Corporations 154; Kyd on Corporations 97; Act 11th March 1789, 2 Smith's Laws 462; Respublica v. Duquet, 2 Yeates 497; McCulloch v. Maryland, 4 Wheat. 316; Act 2d February 1854, § 6; Act 21st April 1855. And the Act 16th

April 1840 gives power to file liens against the lot-holders, subject only to the restrictions contained in the Act of 1855.

Budd and E. K. Price, for the defendant in error, cited Act 4th April 1837, § 7, Pamph. L. 300; Act 9th March 1826; Act 3d March 1829; Act 21st April 1855; McMasters v. Reed, Grant's Cas. 47; Tilford v. Wallace, 3 Watts 143; City of Philadelphia v. Cooke, 6 Casey 56; Kensington v. Keith, 2 Barr 218; Bennett v. Birmingham, 7 Casey 15; The People v. Mayor of Brooklyn, 6 Barb. 209.

The opinion of the court was delivered by WOODWARD, J.

The culvert in question, begins, runs, and ends, in what was formerly the District of Spring Garden, but is now part of the territory of the City proper. The question is not whether the City had authority to build the culvert. The power to build is deducible from both the inherent faculties of the corporation and from statutes referring to the specific subject. But having built the culvert, the question is, whether the City might enter liens against lots through or along which the culvert ran, for any part of the cost of construction? This is a power of special taxation, and must have explicit legislation to support it. Has such legislation been shown?

The Act of 4th April 1837, P. L. 300, taken in connection with the acts relating to the introduction of Schuylkill water into the district of Spring Garden, would have authorized the district, had it remained an independent municipality, to build this culvert, under certain limitations and restrictions, and to assess the whole "expenses thereof" upon lot-owners. By the 9th section of the Act of 16th April, 1840, P. L. 412, it was made lawful for the commissioners of Spring Garden to file of record all claims for building culverts.

But Spring Garden did not remain a separate district, but was merged by the Consolidation Act of 2d February 1854, into the City of Philadelphia. Did this drown the power to enter liens of record for the cost of culverts? The 44th section of the Consolidation Law, Purd. 1090, continued in force all Acts of Assembly not inconsistent herewith, "until such acts shall be altered or repealed by the legislature." Now there was no inconsistency between the Consolidation Act and the above-named acts relating to culverts in Spring Garden, except only that different officers were to do the work and enter the liens; and therefore we conclude, that the enlarged City of Philadelphia was as competent to charge lot-owners as Spring Garden was before the Act of Consolidation. The power was not drowned, but was transferred to another municipality, along with the territory and the people. But if the City took the district's power by transfer did she not take it subject to the limitations and restrictions imposed on the district by the Act of 1837? I think this cannot be doubted. Then, after consolidation, the City of Philadelphia had the power to build culverts within the boundaries of the old city, and pay for them out of general taxation; and she had power also to build culverts within the lines...