Leake v. City of Philadelphia

• Citation: 24 A. 351,150 Pa. 643
• Decision Date: 01 June 1892
• Docket Number: 82
• Parties: Leake et al., Appellants, v. Phila. et al
• Court: Pennsylvania Supreme Court

24 A. 351

150 Pa. 643

Leake et al., Appellants, v. Phila. et al

No. 82

Supreme Court of Pennsylvania

June 1, 1892

[Copyrighted Material Omitted]

Argued March 28, 1892

Appeal, No. 82, Jan. T., 1892, by plaintiffs, E. F. Leake et. al., from decree of C.P. No. 4, Phila. Co., March T., 1892, No. 783, dismissing motion for preliminary injunction, against the city of Phila. and the Vulcanite Paving Co.

Bill for injunction by property owners and taxpayers to restrain the city of Phila. and the Vulcanite Paving Co. from entering into a contract for paving.

The bill alleged that plaintiffs were taxpayers and owners of real estate fronting on Frankfort avenue, Phila. An ordinance of March 11, 1891, authorized the paving of said street in front of plaintiffs' property and the collection of the cost from abutting owners, except for intersections, the cost of which was to be paid out of general taxation, the contractor to keep the street in repair for three years. That the contract was awarded to the Vulcanite Paving Co., and a contract was about to be signed. That the bid contained a sum for cost of keeping street in repair. That the Frankford and Southwark City Passenger Railway Co. was authorized, by acts of April 4, 1854, P.L. 759, June 9, 1857, P.L. 802, and April 9, 1858, P.L. 237, to construct a railroad upon Frankford avenue where it was now proposed to pave. That said railway company filed a written acceptance of the ordinance of July 7, 1857, whereby it became liable for the costs of maintaining, paving, repairing and repaving said street. That about 1858, said railway company tore up the macadam pavement then existing on said street, laid its tracks and paved with cobble stones for the space of eighteen feet in width. That said railway had repaired and kept said paving in repair and had also repaired the macadam road, and entered into a contract with the Frankfort & Bristol Turnpike Co. (whose franchise covered said street, under the act of March 24, 1803) to keep the street in repair from curb to curb. That the city in 1888 had entered bond, duly approved, for payment of damages for taking franchises of said turnpike. That the ordinance and contract relating to this paving was illegal and void. The prayers were for an injunction restraining (1) paving, (2) filing claims and collecting cost from property owners, (3) paying cost of intersections out of city funds, and (4) further relief. The bill was supported by injunction affidavits.

The Vulcanite Paving Co. filed an affidavit denying that there was any increase in the contract price to cover cost of keeping street in repair.

The city filed an affidavit alleging that the ordinance of 1857 was modified by the ordinance of April 1, 1859, so that street railways were not liable for original paving; that the property owners contributed nothing to the paving already done, and that the proposed paving was a first paving under the ordinances of the city.

The ordinance of April 1, 1859, after repealing so much of the ordinance of 1857 as required railway companies to pave streets occupied by them which had not been paved, provided, in § 2: "All streets or highways which are unpaved at the time of laying the rails shall be kept in good traveling order by the railroad company until the same shall be paved by the owners of property thereof, after which they shall be repaired and kept in good order at the proper cost of the railroad company occupying the same."

A motion for a preliminary injunction was dismissed by the court an the injunction refused in the following opinion by WILLSON, J.:

"The plaintiffs, who are taxpayers and owners of real estate fronting on Frankford avenue, filed a bill in this case to prevent the city from entering into a contract with its co-defendant, the Vulcanite Paving Co., for the paving of the said Frankford avenue from Margaret to Adams streets, and to prevent that company from doing the work and filing municipal claims therefor.

"An ordinance of March 11, 1891, provided that the paving should be done, and that the contractor should collect the cost of the same from the owners of the property fronting on the street, as well as enter into an obligation to keep the street in good repair for three years after the work should be finished. The Vulcanite Paving Co. were the successful bidders for the contract.

"The principal ground upon which the plaintiffs' case is rested is that the Frankford & South wark Phila. City Passenger Railway Co., which occupies the said street in part by its tracks, is legally bound to do all necessary paving and repaving there at its own expense, and without expense to the taxpayers of the city or to the owners of property fronting on the highway.

"It is undoubtedly the fact that an act of assembly, (P.L. 1857 p. 802,) supplementary to the act incorporating the company (under its original name of the Phila. & Delaware River Railroad Co.) provided that the corporation should obtain the consent of the city councils before using or occupying any of the streets named in the act; and, further, that such consent should be taken to be given unless said councils should signify their disapproval by ordinance within thirity days from the passage of the act.

"It is also true that councils, in a general ordinance of July 7, 1857, required all passenger railway companies within the limits of the city to enter into a written obligation to comply with the provisions of the said ordinance, one of which was that such companies should be at the 'entire cost and expense of maintaining, repairing and repaving that may be necessary upon any road, street, avenue, or alley occupied by them.' The 9th section of the ordinance provided, that if the said railway company, viz.: the Phila. & Delaware River Railroad Co. (that being the original name of the Frankford & Southwark Phila. City Passenger Railway Co.) should fail to file such an obligation on or before the 8th day of July, 1857, the said councils expressed their disapproval of the before-mentioned act of assembly. On the 8th day of July, 1857, the railway company did file the prescribed obligation with the city solicitor.

"Doubtless the right of the railway company to build and operate its road then became subject to all the burdens which were imposed by the ordinance referred to. If there were nothing else in the case but the matters which have thus been briefly detailed, it would be well worth while to consider whether, under such circumstances, the city could lawfully impose either upon taxpayers or property-owners the burden of paying for any necessary paving or repaving of the street in question, without making the proper effort to impose that duty upon the railway company.

"There is, unquestionably, good reason for the common opinion that such corporations should make a large return to the public for the valuable franchises which they enjoy in the use of the public highways, and where the law imposes upon them the duty of either paving, repairing or repaving the streets, when that is necessary, as a part of the consideration which the public should receive for the grant of the privileges enjoyed, it is eminently proper that the performance of that duty should be exacted, so that both taxpayers generally and abutting owners of property may be relieved of a tax to which the law subjects the railway corporation.

"It is plain, however, that in every such case the question must arise, What does the law require of the railway company? In the case before the court, it appears, from what has been stated, that the railway company became bound, by the terms of its obligation and of the ordinance of 1857, to bear the entire cost of paving that might be necessary upon any street occupied by it. That was its original duty. Is the duty of the company the same at the present time?

"To settle that question we must proceed a step further. On April 1, 1859, an ordinance, supplemental to that of 1857, was approved, which materially modified the requirements of the latter in regard to the paving of streets occupied by passenger railway companies. The 2d section is as follows 'That all streets or highways which are unpaved at the time of laying the rails shall be kept in good traveling order by the railroad company, until the same shall be paved by the owners of property thereof, after which they shall be repaired and kept in good order at the proper cost of the railroad company occupying the same.' And the 15th section reads thus: 'That so much of the 3d section of the ordinance approved July 7, 1857, to...