Philadelphia v. Fox
| Decision Date | 10 January 1870 |
| Citation | 64 Pa. 169 |
| Parties | Philadelphia <I>versus</I> Fox <I>et al.</I> |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Appeal from the decree of the Supreme Court at Nisi Prius.
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E. Olmstead and Meredith (with whom were T. J. Barger, City Solicitor, J. Goforth and F. B. Gowen), for appellants.— The plaintiffs are competent to take and hold these trusts: Vidal v. Girard, 2 How. 127; Cresson's Appeal, 6 Casey 450; Mayor v. Wills' Ex'rs., 3 Rawle 170. The act professes to be what it is not. It declares that the directors shall be considered as agents or officers of the city, while in fact the principal has no power to dismiss much less appoint them. The legislature cannot make this change: Brown v. Hummel, 6 Barr 86. The act is judicial, and beyond the power of the legislature: Bagg's Appeal, 7 Wright 512; Grim v. Weissenberg, 7 P. F. Smith 433; Norman v. Heist, 5 W. & S. 171; De Chastellux v. Fairchild, 3 Harris 18; Spragg v. Shriver, 1 Casey 286; Menges v. Dentler, 9 Id. 495. A municipal corporation may for some purposes be regarded as a private corporation: Saving Fund v. Philadelphia, 7 Casey 175; Bailey v. New York, 3 Hill 521. The trust under Girard's will for laying out Delaware Avenue, &c., having been executed, a money consideration having been paid to the legislature for the authority, the legislature cannot deprive the plaintiffs of their rights under the will. The legislature cannot take away the property of a municipal corporation without providing for the payment of its debts. Every citizen of Philadelphia, and every owner of property in the territorial limits of the old city of Philadelphia, has a pecuniary interest in the devise of Mr. Girard. When the wants of the college are supplied, and the police purposes satisfied, the surplus under Girard's will is to be applied in such a manner as will diminish the burden of taxation. The property of the citizen or landowner or tax-payer in this prospective benefit of the fund, applicable to diminish his taxes, is as much guarantied and secured to him by the Constitution as more visible and tangible property.
Section 11 of the Constitution declares that all courts shall be open, and every man shall have remedy by the due course of law and right and justice administered without sale, denial or delay. The powers of the plaintiffs are to appoint agents to administer these trusts, and to define the duties of such agents. This power the act proposes to transfer to a board composed of all the judges of this court and the judges of the Philadelphia courts, and takes away from the plaintiffs all control over the acts of the appointees of this board. Therefore the real contest in this case is between the plaintiffs and the board of appointment; the members of that board of appointment could have been made proper parties as defendants in a bill asking for an injunction to restrain them from appointing the agents as trustees: McManus v. Phila. and R. Railroad, 9 P. F. Smith 330; Patterson v. Barlow, 10 Id. 54. If the judges, who claim the power of appointment of the officers to manage these trusts, are proper parties to a suit by the city of Philadelphia to determine their right to appoint, the effect of the Act of Assembly has been to deprive the plaintiffs of any tribunal before which their rights might be determined, other than such as are composed of those who claim in opposition to them the very powers, the rightful possession of which is the subject of controversy. The courts are not open, and a remedy by due course of law given to a suitor, when every court is held by those who claim in opposition to him the very property, the title to which is the subject of litigation: Dr. Bonham's Case, 8 Rep. 118; Day v. Savadge, Hobart 87; Dyer 220, B. pl. 14; Littleton, § 212; London v. Wood, 12 Modern 669. A judge may perform ministerial duties or not at his option: Kuhn v. U. S. Bank, 2 Ashm. 174.
The directors are not agents of the city. It has no power to control or dismiss them, and could not be held liable for their malfeasance: Martin v. The Mayor of Brooklyn, 1 Hill 545; Prather v. City, 13 B. Monroe 559; Mayor v. Bailey, 2 Denio 433; Alcorn v. Philadelphia, 8 Wright 348; Story on Agency, § 456 a.
The city, in the administration of the trusts, is to be treated as a private corporation: Lloyd v. Mayor of New York, 1 Selden 374; Milhaw v. Sharp, 15 Barb. 193; Holland v. San Francisco, 7 California 377; Angell & Ames on Corporations, § 767; 2 Kent's Com. 305, 306, n.; Aberdeen Academy v. Mayor, 13 Smedes & Marshall 646; Louisville v. University, 15 B. Monroe 642; St. Louis v. Russell, 9 Missouri 507.
As to Acts of Assembly making changes in private corporations, election and appointment of trustees, &c.: Com. v. Bonsall, 3 Whart. 559; Ervine's Appeal, 4 Harris 264; 2 Story on the Constitution, § 1, 392; Plymouth v. Jackson, 3 Harris 44; Norris v. Abingdon Academy, 7 Gill & Johns. 7; State v. Hayward, 3 Richardson 389; Louisville v. Trustees, 15 B. Mon. 642; Yarmouth v. N. Yarmouth, 34 Maine 411; Sheriff v. Lowdnes, 16 Maryland 357; Edwards v. Jagers, 19 Indiana 407; Vincennes University v. Indiana, 14 How. 269.
As to judges being parties: Anon., 1 Salkeld 396; 1 Kent's Com. 448.
P. McCall and Strong (with whom was J. Fallon), for appellees. —If an Act of Assembly be within legislative power it is valid: Sharpless v. Mayor, 9 Harris 147; Speer v. Blairsville, 14 Wright 150; Com. v. Maxwell, 3 Casey 456.
The Act does not remove the city from the trusts, and appoint other trustees in its place. The city remains the trustee as before. The trust property and estates still remain vested in the city. The board of directors are officers of the city. If the charter of the city were repealed, the board of directors would fall with it. The source of their authority or the manner of their appointment has no bearing on their status as officers. A person may be a city officer, though not elected by the corporation.
The city is not to be regarded as a private corporation. In these trusts the city acts only as a municipal corporation — an instrument or agency of government to which a portion of the sovereign power is delegated for local purposes. It may take real and personal property upon trust: Vidal v. Girard, 2 How. 127; Girard v. Philadelphia, 7 Wall. 1. The objects of the trusts are of a public character, such as education, the care of the poor, &c., which fall within the scope of the duties of the city as a governmental agency: Wills Hospital, 3 Rawle 170. If the trustee corporation holds property clothed with public duties, the court has a right to interfere: Attorney-General v. Mayor of Liverpool, 1 M. & C. 171.
In the case of corporations created by the mere will of the legislature, there being no other party interested or concerned, whose franchises are not the result of contract, the legislature may at all times modify, change or annul their franchises as the public good may in their judgment require: The People v. Morris, 13 Wend. 337; The State v. Branin, 3 Zabr. 497; Reynolds v. Baldwin, 1 La. An. 162; Police Jury v. Shreveport, 5 Id. 661. The People v. Power, 25 Ill. 187; Robertson v. Rockford, 21 Id. 451; E. Hartford v. Hartford Bridge, 10 How. 534; Borough of Dunmore's Appeal, 2 P. F. Smith 374. Nor does it make any difference that the public corporation is organized for purposes of education and not of police: Trustees of Schools v. Tatman, 13 Ill. 27.
The mode in which public functionaries shall be chosen or appointed depends purely on the legislative will, and is a question of expediency addressed entirely to the wisdom of the legislature: People v. Draper, 1 Smith N. Y. 532; People v. Pinkney, 5 Tiffany 377; Baltimore v. The State, 15 Md. 376.
They referred to a number of Acts of Assembly of Pennsylvania authorizing municipal appointments outside of the corporation.
The limit to the power of the legislature over property owned by a municipal corporation is only that the legislature cannot divest the property of the corporation or divert it to other uses: Montpelier v. E. Montpelier, 29 Vt. 21.
The courts are open to all these parties on the rights here involved. A judge might sit, though a party: 2 Roll. Abr. 93; Dimes v. Gr. Junction Railroad, 3 H. of Lords Cases 787.
The opinion of the court was delivered, January 10th 1870, by SHARSWOOD, J.
The City of Philadelphia is beyond all question a municipal corporation, that is, a public corporation created by the government for political purposes, and having subordinate and local powers of legislation: 2 Kent's Com. 275; an incorporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government: Glover Mun. Corp. 1. It is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government — essentially a revocable agency — having no vested right to any of its powers or franchises — the charter or act of erection being in no sense a contract with the state — and therefore fully subject to the control of the legislature, who may enlarge or diminish its territorial extent or its functions, may change or modify its internal arrangement, or destroy its very existence, with the mere breath of arbitrary discretion. Sic volo, sic jubeo, that is all the sovereign authority need say. This much is undeniable, and has not been denied. That while it thus exists in subjection to the will of the sovereign, it enjoys the rights and is subject to the liabilities of any other corporation, public or private, is equally undoubted. This was the very object of making it a body politic, giving it a legal entity and name, a seal by which to act in solemn...
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