Sharpless v. Mayor of Philadelphia

• Decision Date: 01 September 1853
• Citation: 21 Pa. 147
• Parties: Sharpless and Others versus The Mayor, &c., of Philadelphia.
• Court: Pennsylvania Supreme Court

21 Pa. 147

Sharpless and Others versus The Mayor, &c., of Philadelphia.

Supreme Court of Pennsylvania.

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B. H. Brewster and Mallery, for complainants.—It was contended that the Acts authorizing the subscriptions referred to, were unconstitutional,

1. Because they confer upon the city of Philadelphia a high function, which the legislature cannot transfer to it or to any municipality for such a purpose, and with which the legislature cannot part to any one.

2. Because the powers given by these statutes permit the city to take private property without compensation.

3. Because they authorize the city to tax for a purpose not within the scope of the necessary duties of a municipal corporation, thereby granting it such a power as it cannot acquire, or the legislature impart to it.

It was said that the city councils are not the agents of the state; they are the agents of the people of this city, elected for a certain purpose, well understood and ascertained at the time of their election, and their powers cannot now be enlarged at the arbitrary pleasure of the legislature. Even though the legislature possessed the power to authorize the subscription, still the people of Philadelphia would have a right to accept or reject, not by a direct action upon the subject, but by the voice of new councilmen elected to pass upon this question. It was said that the legislature cannot permanently transfer its power of making laws to other hands; for being but a delegated power from the people, they who have it cannot pass it over to others: Locke on Government 291; Rutherford's Institutes 273; Parker v. Commonwealth, 6 Barr 507; 4 Harrington 485; 5 Call 140; 10 Howard 534.

The legislature does not possess unlimited power: 4 Peters 517, Providence Bank v. Billings; 5 W. & Ser. 173, Norman v. Heist; 4 Wheaton 558; 2 Peters 413, Fletcher v. Peck; 5 Paige 146; Saxton's Ch. 695-6.

The right of taking private property for public use was originally founded on state necessity. The right has since been more liberally construed, the term public use has been substituted, but what shall be considered as public use is unsettled: Saxton's Ch. 695.

All public taxation, to be fair, should be equal in proportion to the value of property, so that no one class of individuals and no one species of property may be unequally or unduly assessed: 2 Kent 332. Though the legislature have the constitutional authority to confer the taxing power upon local corporations, for such purposes only as are necessary for the local convenience, B. Munroe 338, a town in its corporate capacity will not be bound even by a vote of the majority, to the performance of contracts or other legal duties not coming within the scope of the objects and purposes for which it was incorporated: 11 Pick. 396; 13 Mass. 272; 16 Id. 48; 12 Pick. 272; Id. 480. It was said that by the subscriptions in question, the citizens of Philadelphia were to be charged with a debt in order to secure a remote advantage, to carry out an object which was independent and foreign from its municipal duties.

The case of McDermott v. Kennedy, Brightly's Rep. 335-6, was referred to for the position that making a railroad not within the limits of the borough, did not touch or affect the corporate rights; that it may affect private rights, but that the regulation of private rights was not vested in the borough. It was stated that the cases decided out of Pennsylvania did not justify the statutes under which the subscriptions in question in this case were made. These authorities may be found in 15 Conn. 475; 9 Humph. 252; 9 B. Munroe 330, 526; 8 Leigh 120; 3 Grattan 247; 9 Dana 517; 5 Id. 28; 5 Call 139; 24 Wend. 66, 68. That the principle decided in them is, That a statute authorizing subscriptions to railways or other public improvements as indirect corporate purposes, must be for works that have a direct connection with a corporate town claiming them as corporate purposes, more direct than that which would result from the general increased prosperity of the country by reason of such improvements made, without a direct reference to or in direct connection with the town. It was intimated that the subscriptions, in the cases in question, were not for a usual and necessary corporate purpose, for the immediate and direct advantage of the city, or for its exclusive benefit; that their objects were general and their benefits local, applying mainly to those sections of country wherein they lie; and it was said that they were not within the limits of the city of Philadelphia.

If an Act of the legislature be repugnant to the constitution, it is ipso facto void, and the Courts have the power, and it is their duty, so to declare it: 2 Peters 522; 12 Wheaton 270; 3 Dallas 386; 1 Kent 447-455; numerous other authorities were cited.

As to the exercise of the right of eminent domain, were cited 14 Wend. 51; 5 Paige Ch. 137, Varrick v. Smith; 3 Id. 72; 5 Gill 390; 11 Wend. 151; 19 Id. 659.

As to the power of the legislature to impose taxes: 4 N. Hamp. 565; 2 Mass. 276; 6 Id. 408; 13 Id. 272; 16 Pick. 572; 12 Id. 227; 11 Id. 396; 13 Id. 61; 5 Gill 390; 2 Id. 11; 2 Shepley 379; 8 Blackford 361; 24 Wend 66; 3 Grattan 247; 11 Vermont 402.

As to what is public use: 12 Pick. 467; 2 Shepley 379; 6 Geo. 130; 4 Ham. 286; 3 Paige Ch. 72; 5 Id. 143; 2 Wend. 66; 7 Cow. 606.

As to powers of municipal corporations: 15 John. 358; 2 Mass. 27; 13 Id. 199; Id. 272; 9 Wend. 384; 13 Id. 331; 12 Pick. 193; Id. 227; 24 Id. 355; 8 Blackford 361; 9 Conn. 175; 11 Verm. 402.

On part of the respondents, were Olmsted, Solicitor, and Dallas, Brock, and Read.—The individual states of the Union possess all the rights of sovereignty which were not exclusively delegated to the general government by the constitution of the United States, with an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. Each state government exercises all such rights of sovereignty in the manner pointed out in its constitution, subject only to the limitations therein. There is no provision in the constitution of the United States, which conflicts with the laws in question. The only question is whether they conflict with the constitution of this state. Either by the 9th article (the declaration of rights), or any other of the articles of it, there is no limitation upon the legislative power of borrowing and raising money, and of laying taxes for any purpose. The power is not controlled by the last clause of the 10th section of the 9th article in these words: "Nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being made."

A similar provision is to be found in the constitution of the United States, and in almost every state constitution, and is but an enunciation of a right recognised by the law of nations, and which is called sovereign or transcendental property, or the right of eminent domain. This right or power was originally exercised in time of war, as where a town was to be fortified, and the gardens, lands, or houses of private citizens were taken where ramparts or ditches were to be raised, or materials owned by private individuals were taken and made use of in public fortifications. So in times of general scarcity, where the storehouses and granaries of private individuals are set open; or, in the extremities of the state, where moneys intrusted with the government are seized.

This right of eminent domain, in modern times, has been principally applied to the taking of land for public works, either by the state or its delegated agents, upon just compensation being made; and is well described in Erskine's Principles of the Law of Scotland, page 108. "Every state or sovereign has a power over private property, called by some lawyers dominium eminens, in virtue of which the proprietor may be compelled to sell his property for an adequate price, where an evident utility on the part of the public demands it."

The existence of this right in the several states, uncontrolled by the constitution of the United States, is fully recognised by the Supreme Court of the United States, in the case of the West River Bridge Company v. Dix, 6 Howard 507.

The right of eminent domain is not to be confounded with the power of taxation, or with the power of borrowing money. The same rules are applicable to it as to the loss of merchandise thrown overboard to save a vessel. The property taken is not the contribution of its owner to the public, as his share of the public burden; but is that which he is forced to sell for a just price, and without reference to the amount exacted from others. The right of eminent domain is an extraordinary power exercised only in case of necessity, or manifest public utility; whilst taxing and borrowing are the ordinary and usual modes of supporting all branches of the government: 4 Comstock 419.

The state or its agents, whether corporate bodies or individuals, had always taken lands for public use under the 10th section of the 9th article, but it sometimes happened that after the property was taken the corporations became insolvent, and the compensation was never paid. To remedy this evil, the convention added the 4th section of the 7th article, in these words: "The legislature shall not invest any corporate body or individual with the privilege of taking private property for public use without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor before such property shall be taken. This has no relation to the taxing power, nor is it any limitation of it. The legislature of Pennsylvania have the power to borrow money, 4 Wheaton 651; 8 Id. 584; 2 Peters 410-414; Id. 656; and the power to tax; and they have exercised the right to devolve portions of these...