City of Philadelphia v. Spring Garden Farmers' Market Co.

• Decision Date: 21 May 1894
• Docket Number: 95
• Citation: 161 Pa. 522,29 A. 286
• Parties: Philadelphia to use of Nestor, Appellant, v. Spring Garden Farmers' Market Company
• Court: Pennsylvania Supreme Court

29 A. 286

161 Pa. 522

Philadelphia to use of Nestor, Appellant, v. Spring Garden Farmers' Market Company

No. 95

Supreme Court of Pennsylvania

May 21, 1894

Argued January 17, 1894

Appeal, No. 95, Jan. T., 1894, by plaintiff, Phila. to use of William A. Nestor, from judgment of C.P. No. 1, Phila. Co Sept. T., 1891, No. 583, on verdict for defendant. Affirmed.

Scire facias sur municipal claim for paving the unpaved plots in the center of Spring Garden street between Tenth and Eleventh streets, in the city of Philadelphia, formerly occupied by market houses. Before BIDDLE, J.

At the trial it appeared that, when the market houses were removed an ordinance was passed authorizing a contract for grading and paving the portion of the street formerly occupied by the market. Defnedant company, which was owner of abutting property, claimed that the obligation for paying for the original paving of the street was placed by the act of April 8, 1864, P.L. 297, upon the Union Passenger Railway Company.

Section 8 of this act provides as follows:

"And the said company in constructing their road shall conform to the surveys and grades now established, or hereafter to be established by law, of the several streets or avenues traversed by said road, and shall at the cost and expense of said company lay flagstones or crossings along the line of the paved streets upon which the rails are laid at intervals not exceeding two hundred and fifty feet, and shall be at the entire cost and expense of paving, repairing and repaving that may be necessary upon any street where the track of said company may be laid; and it shall not be lawful for the said company to run their cars at a greater rate of speed than six miles an hour; and the said company is hereby authorized and empowered to construct and lay the said railway without the consent of the city councils of the city of Philadelphia; but whenever the said railway shall be laid and used by running passenger cars thereon, the said company shall be subject to the ordinances of the city of Philadelphia regulating the running of passenger railway cars."

The court charged as follows:

"This case has already been before the Supreme Court of Pennsylvania. This court took the view of it originally that the defendant was not responsible to pay for this paving. That question was taken up to the Supreme Court. The Supreme Court affirmed the decision of this court, saying that the defendant was not responsible for the paving. Therefore your verdict in this case will be for the defendant." [1, 2]

Plaintiff's points were as follows:

"1. The eighth section of the act of April 8, 1864, P.L. 297, incorporating the Union Passenger Railway Company, does not relieve the defendant in this case from the payment for the pavement in front of its property, for which the claim in suit was filed, and the verdict should be for the plaintiff." Refused. [3]

"2. Under all the evidence in this case the verdict should be for the plaintiff." Refused. [4]

"3. Under all the evidence in this case the defendant is liable for the cost of this paving." Refused. [5]

"4. Under the act of April 8, 1864, and the supplement of March 16, 1865, the duty of paying for the paving of this street is not imposed upon the Union Passenger Railway Company." Refused. [6]

Defendant's points were as follows:

"1. The supplemental act of March 16, 1865, is unconstitutional, because the subject is not clearly expressed in its title." Affirmed. [7]

"2. Under all the evidence in this case the verdict must be for the defendant." Affirmed. [8]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-8) above instructions, quoting them.

Judgment affirmed.

George P. Rich, Francis S. Cantrel with him, for appellant. -- For the cost of paving as special taxation, the defendant, as the owner of property specially benefited by the improvement and fronting on the street, is liable: Slocum v. City, 11 W.N. 167; Alcorn v. City, 112 Pa. 494; Phila. v. Evans, 139 Pa. 483.

The paving, repairing, and repaving contemplated is that made necessary by the construction of the road, and is confined to the time of such construction -- the liability to pay for future paving and repairing being secured by the subjection of the company to the city ordinances regulating the running of passenger railway cars.

The title of the act of 1865 is sufficient: Blood v. Marcelliott, 53 Pa. 371; Esling's Ap., 89 Pa. 205; Mauch Chunk v. McGee, 81 Pa. 433; Rogers v. Imp. Co., 109 Pa. 109; Craig v. Church, 88 Pa. 42; Com. v. Potts, 79 Pa. 164.

The railway company is not liable for the original paving: Phila. v. Evans, 139 Pa. 483; Chicago v. Sheldon, 9 Wal. 50.

Even if it be held that the railroad company has contracted to pay for this paving, the abutting property owners are not thereby relieved from their liability for this tax: People v. Brooklin, 65 N.Y. 349; Washington Ave., 69 Pa. 352; City v. Weller, 4 Brews. 24; Phila. & Ridge Ave. Pass. Ry., 143 Pa. 444; Canal Co. v. Graham, 63 Pa. 290; Brown v. Brown Co., 109 Pa. 57; Oil City v. Jackson, 114 Pa. 321; Borough v. Arthurs, 130 Pa. 501; Hammett v. City, 65 Pa. 146.

While the power of the state to contract with one of its subject to refrain either wholly or for some definite period from levying any taxes whatever, or to levy them only to a certain extent, is, perhaps, no longer open to question, yet such contracts are against the public interest and are always jealously regarded and most strictly construed: Bank v. Co., 10 Pa. 442; R.R. v. Com., 66 Pa. 87; Jones & Mimick Co. v. Com. 69 Pa. 137; Cooley on Taxation, 2d ed. 70.

The property owners cannot set up the defence in this proceeding. Their representatives, the city councils, by their ordinance, have authorized this contract to be made by plaintiff, who, relying upon it, has done the work and accepted the assessment bills.

F. Carroll Brewster, Henry Birck and Isaac D. Yocum with him, for appellee. -- All the points now raised were presented when the case was here before: 154 Pa. 93.

The liability of the railway company for the entire cost of the paving is expressly imposed upon the company by its charter: Leake v. City, 150 Pa. 643.

The contractor is not prejudiced. On the contrary he is helped by such condition, for he has but a single suit to bring, whereas otherwise he would be compelled to sue each property owner.

If appellant's claim be correct, and the contractor should be allowed to recover in the first instance from the property owner, thereby compelling them to sue the railway company, a multiplicity of suits would be necessary to accomplish the same result as would be attained by a single action by the contractor against the railway company: Payne v. Rogers, 2 H. Bl. 350; Lowell v. Spaulding, 4 Cush. 277.

The act of 1865, supplementary to the act incorporating the railway company, is clearly unconstitutional: Dorsey's Ap., 72 Pa. 192; Union Pass. Ry.'s Ap., 81* Pa. 91; Ridge Av. Ry. v. Phila., 124 Pa. 219; Com. v. Frantz, 135 Pa. 389; Borough v. Gardner, 148 Pa. 192; Brown's Est., 152 Pa. 401; Perkins v. Phila., 156 Pa. 554.

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

OPINION

MR. JUSTICE MITCHELL:

Appellant's argument is divided into three heads, and we may conveniently follow the same general arrangement, though we prefer to put the headings into somewhat different form.

1. The act of April 8, 1864, P.L. 297, incorporating the Union Passenger Railway Company, in express terms, required that the company should "be at the entire cost and expense of paving, repairing and repaving that may be necessary upon any street where the track of said company may be laid." This language is too plain to need interpretation. The argument that the previous words in the same section, "the company, in constructing their road, shall conform to the surveys and grades now established, or hereafter to be established," etc., limit the obligation as to paving, repairing, etc., to the time of first construction, is not tenable. It gives too narrow a meaning to the language used and overlooks entirely the force of the word "pave." If the only obligation meant to be imposed on the corporation was to replace the street in as good condition as before it began its work, then the words "repair and repave" were sufficient, and the word "pave" was not only superfluous, but misleading. It must be presumed to have been used intentionally and with its proper force.

If there were any doubt on this point it would be dissipated by the express effort to repeal this provision of the act by the act of March 16, 1865, P.L. 394. This latter is entitled a supplement to the former act, "authorizing said company to extend their track." It provides that the company may continue and extend their track on certain streets named, and then proceeds to declare that the true intent and meaning of the proviso to the eighth section of the original act, is that the company "shall not be chargeable with the cost or obliged to pay the cost, of paving any street which has never been previously paved. Nor shall the said proviso be construed so as to exempt owners of property from the expense of new paving as is now provided by law." If this paragraph of the act of 1865 were valid the argument of the appellant would be...