Keller v. Scranton

• Decision Date: 17 July 1901
• Docket Number: 35
• Citation: 200 Pa. 130,49 A. 781
• Parties: Keller, Appellant, v. Scranton
• Court: Pennsylvania Supreme Court

49 A. 781

200 Pa. 130

Keller, Appellant, v. Scranton

No. 35

Supreme Court of Pennsylvania

July 17, 1901

Argued February 26, 1901

Appeal, No. 35, Jan. T., 1901, by plaintiff, from decree of C.P. Lackawanna Co., Jan. T., 1901, No. 1, on bill in equity in case of Luther Keller v. City of Scranton, the Delaware Lackawanna and Western Railroad Company and the Scranton Railway Company. Reversed.

Bill in equity for an injunction, to restrain the construction of a viaduct.

From the record it appeared that the Scranton Railway Company and the Delaware, Lackawanna and Western Railroad Company on August 24, 1900, submitted a proposal to the city of Scranton to pay the cost of a viaduct to avoid a grade crossing provided that the city would build the viaduct and pay all the damages to abutting owners. Subsequently the city passed an ordinance accepting the offer of the railroad companies. The plaintiff, who was a taxpayer, filed this bill to restrain the construction of the viaduct.

KELLY, J., filed an opinion in which he found, inter alia, the following facts:

6. The viaduct which the city councils of Scranton propose to authorize by the ordinance of November 17, 1900, will carry the tracks of the Scranton Railway Company over the tracks of the Delaware, Lackawanna and Western Railroad Company and will eliminate the present grade crossing of said tracks on Lackawanna avenue, substituting an overhead crossing for the grade crossing. The present grade crossing is a dangerous crossing and a great obstruction to the travel of the people, not only on the tracks of the Delaware, Lackawanna and Western Railroad Company and on the tracks of the Scranton Railway Company, but the general travel of the public on West Lackawanna avenue. The said viaduct will be a great public improvement.

7. The erection of the viaduct will cause damage to the abutting property owners, and the amount which may be recoverable by them may aggregate the sum of $100,000, whenever the same may be liquidated according to law.

8. The damages which may result to the property owners by the construction of the viaduct are unliquidated damages, and their amounts have not as yet been ascertained.

9. At the time the ordinance which is set forth in the bill was adopted, to wit: November 17, 1900, the debt of the city of Scranton was $582,000.

10. Of the above debt of $582,000, the sum of $299,000 had been approved and authorized by a vote of the electors, and the balance of the debt, to wit: $283,000, had been incurred without a vote of the electors.

11. On the above date, to wit: November 17, 1900, the assessed value of the taxable property within the city of Scranton was $23,121,000, and two per cent thereof is $462,420.

12. The damages resulting from the construction of the proposed viaduct will not create an indebtedness which added to the present indebtedness of the city equals seven per cent of the assessed valuation of the taxable property.

13. The erection of the proposed viaduct will be of great advantage to the Delaware, Lackawanna and Western Railroad Company, the Scranton Railway Company and to the general public.

14. Under the terms of the ordinance above set forth the making of the detail plans and specifications is left to the discretion of the city engineer subject to the approval of the engineers of the Delaware, Lackawanna and Western Railroad Company and the Scranton Railway Company.

The court dismissed the bill.

Error assigned was the decree dismissing the bill.

Decree reversed and bill directed to be reinstated and injunction issued as prayed. Costs to be paid by appellees.

I. H. Burns and H. M. Streeter, of Streeter & Lowry, for appellant. -- The creation of a debt and the permitting one to accrue is the same thing: McCracken v. City of San Francisco, 16 Cal. 591; Litchfield v. Ballou, 114 U.S. 190; City of Spring-field v. Edwards, 84 Ill. 626; Law v. People, 87 Ill. 385; Prince v. City of Quincy, 105 Ill. 138.

Indebtedness means an agreement of some kind by the city to pay money where no suitable provision has been made for the prompt discharge of the obligation imposed by the agreement: Sackett v. New Albany, 88 Ind. 473; Lake County v. Rollins, 130 U.S. 662; City of Erie's App., 91 Pa. 398.

The words "debt" and "indebtedness" should be construed as covering all things within the object and intent of the framers of the constitution and statutes: Endlich on Interpretation of Statutes, sec. 76; Balliet v. Brown, 103 Pa. 546; Pike County v. Rowland, 94 Pa. 238; Pepper v. Phila., 181 Pa. 566; Mayor and City Council of Baltimore v. Gill, 31 Md. 375.

A. A. Vosburg, city solicitor, and Everett Warren, of Willard, Warren & Knapp, with them Joseph S. Clark, for appellee. -- The claims of the property owners for unliquidated damages which may result from the construction of the viaduct are not debts within the meaning of the constitutional provision: Wade v. Oakmont Boro., 165 Pa. 479; Appeal of City of Erie, 91 Pa. 398; Lehigh Coal & Navigation Co.'s App., 112 Pa. 360; Fisher v. Consequa, 2 Wash. C.C. 382; Pepper v. Philadelphia, 181 Pa. 566.

Before McCOLLUM, C.J., MITCHELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MITCHELL:

The single question which needs discussion is whether a municipality, already in debt up to its constitutional limit of two per cent on the assessed valuation of its property, can without a vote of the electors, enter into a contract for the building of a viaduct without expense to itself, but which will make it liable for damages to the owners of abutting land. Or to reduce the question to a briefer and more general form, are unliquidated damages to landowners from a public improvement, a debt within section 8, article 9, of the constitution?

The language of the section is, "the debt of any county, city, borough, township, school district or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof at a public election in such manner as shall be provided by law."

The learned judge below found as facts that "the erection of a viaduct will cause damage to the abutting property owners and the amount which may be recoverable by them may aggregate the sum of $100,000...