Kneedler v. Borough of Norristown

• Decision Date: 29 May 1882
• Citation: 100 Pa. 368
• Parties: Kneedler <I>versus</I> Borough of Norristown.
• Court: Pennsylvania Supreme Court

100 Pa. 368

Kneedler versus Borough of Norristown.

Supreme Court of Pennsylvania.

April 18, 1882.

May 29, 1882.

April 18th 1882.

Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. MERCUR, J., absent

ERROR to the Court of Common Pleas of Montgomery county: Of January Term 1882, No. 66.

COPYRIGHT MATERIAL OMITTED

George N. Corson and Jacob V. Gotwalts, for the plaintiff in error.—The ordinance is unreasonable; it is not authorized by the charter of the borough of Norristown; it discriminates between lots of ten acres and smaller ones; it ordains a forfeiture of private property; it is a prohibition and not a municipal regulation; and for these reasons the ordinance is unconstitutional and void: Dillon on Mun. Corp. §§ 253, 261, 55, 259, 279, 280; City v. Rule, 8 W. N. C. 245; Craig v. City, 7 W. N. C. 117; Seely v. Pittsburgh, 6 Norris 360; Washington Ave., 19 P. F. S. 352. Prior to this action on the part of an informer, the ordinance has never been enforced. The building complained of is but an alteration, or an addition, and not an erection within the terms of the ordinance.

H. K. Weand and N. H. Larzelere, for the defendant in error.—The ordinance is authorized under the Acts of April 2d 1831, § 5 (P. L. 390), and April 7th 1845, § 9 (P. L. 329), referring to the borough of Norristown. But apart from this direct legislative authority, every municipal corporation possesses inherent powers to provide for the general good of the inhabitants in all matters relating to the safety of life, and property. The property of the citizens is held subject to the rights of the municipality to regulate its use so as to prevent its becoming dangerous to the community, and all presumptions are in favor of the legality of the exercise of discretion by the municipal authorities: Dillon on Mun. Corp. §§ 353, 358; Vanderbilt v. Adams, 7 Cowen 352; Coates v. Mayor, 7 Cowen, 585; Commonwealth v. Kimball, 24 Pick. 363; Municipality v. Cutting, 4 La. Ann Rep. 335. The erection of wooden buildings on certain streets in. Norristown is prohibited by Act of April 7th 1845, § 8 (P. L. 329): Respublica v. Duquet, 2 Yeates 493. An ordinance imposing a forfeiture and also a penalty may be sustained as to the penalty: Coden v. Gettysburg, 8 Leg. Gaz. 167.

Mr. Justice GREEN delivered the opinion of the court, May 29th 1882.

The charter of the borough of Norristown contains no authority to the council to enact ordinances prohibiting the erection of wooden buildings. Nor is there anything in the grant of general powers conferred upon the borough from which such an authority can be necessarily inferred or to which it is indispensable. Lacking these requirements, the qualities necessary to create the power in question are not present. On the contrary we find that the Legislature, assuming jurisdiction over the subject in question, by the eighth section of an act passed April 7th 1845, P. L. 329, expressly prohibited the erection of wooden buildings on certain streets of the borough of Norristown. This legislation would have been unnecessary if the borough council possessed the authority to enact a prohibitory ordinance. Some inference, though not a conclusive one, may fairly be drawn from this legislation, that in the contemplation of the Legislature itself, the authority of that body was necessary to validate the prohibition. In the case of Respublica v. Duquet, 2 Yeates 493, it was held that the corporation of the city of Philadelphia had power to pass an ordinance prohibiting the erection of wooden buildings in certain parts of the city, under penalties, to be enforced by indictment and conviction as for an offence. The power to enact this ordinance was rested by this court exclusively upon the act of the Legislature. It is true in the present case there is no power to proceed by indictment, as there was there, but there is an equally, if not more, objectionable feature in the ordinance, to wit, the forfeiture of the building erected in violation of its provisions and the power of arbitrary removal, upon a mere notice of ten days without proceeding or trial of any kind. The exercise of such powers requires the authority of legislative enactment. Thus in 1 Dillon on Municipal Corporations, § 279, it is said: "A corporation under a general power to make by-laws cannot make a by-law ordaining a forfeiture of property. To warrant the exercise of such an extraordinary authority by a local and limited jurisdiction the rule is reasonably adopted that such authority must be expressly conferred by the Legislature."

In the case of Phillips v. Allen, 5 Wright 481, we held that under a city ordinance requiring that baskets used for the sale of fruit and vegetables, should have the fractional parts of a bushel contained in each, marked or stamped thereon, or else to be forfeited with contents, inasmuch as no act of the Legislature expressly authorized the forfeiture, the city councils had no power to inflict that penalty for the violation of the ordinance. The same doctrine has been held in many similar cases: Baxter v. Commonwealth, 3 Pa. 253; Cotter v. Doty, 5 Ohio 394; Rosebaugh v. Saffin, 10 Ohio 31; Hart v. Mayor, 9 Wend. 571. It is true that as a general rule the power to impose pecuniary penalties, resides in municipal corporations, and may be exercised without special legislative authority for that purpose. And it may also be true that an ordinance imposing a pecuniary penalty and also a forfeiture may be good as to the penalty and void as to the forfeiture.

In the present case, however, the ordinance in question is subject to another objection, which applies to all its parts, and that is, that it is unreasonable and oppressive. The case stated does not inform us as to the extent of the population of the borough of Norristown, nor...