Sheets v. Armstrong

• Citation: 161 A. 359,307 Pa. 385
• Decision Date: 09 May 1932
• Docket Number: 31,32
• Parties: Sheets et al., Appellants, v. Armstrong et al
• Court: Pennsylvania Supreme Court

161 A. 359

307 Pa. 385

Sheets et al., Appellants, v. Armstrong et al

Nos. 31, 32

Supreme Court of Pennsylvania

May 9, 1932

Argued January 6, 1932

Appeals, Nos. 31 and 32, March T., 1932, by plaintiffs, from decree of C.P. Allegheny Co., July T., 1931, No. 736 dismissing bill in equity, in case of Ada L. Sheets and Syria Improvement Assn. et al. v. Joseph G. Armstrong et al commissioners of Allegheny County, et al. Affirmed.

Bill for injunction to restrain defendants from carrying out county contract. Before MACFARLANE, P.J., McNAUGHER and STADTFELD, JJ.

The opinion of the Supreme Court states the facts.

Bill dismissed in opinion by MACFARLANE, P.J.

Syria Improvement Association, one of plaintiffs, and Ada L. Sheets, another of plaintiffs, appealed.

Error assigned, inter alia, was decree, quoting record, in each appeal.

The decree of the court below dismissing the bill is affirmed at appellants' cost.

Oliver K. Eaton, with him Ralph C. Davis, for appellants. -- The observance of a zoning ordinance, enacted in a proper exercise of the police power, ought to be punctilious: Ward's App., 289 Pa. 458; Bowers et al. v. Wright, 4 W.N.C. 460.

The contract is against public policy and illegal: Stewart's App., 56 Pa. 413; Ley v. Huber, 3 Watts 367.

A town hall at this location will constitute a nuisance: Neff v. Gorman, 303 Pa. 186.

There was an abuse of administrative discretion: Pearlman v. Pittsburgh, 304 Pa. 24; Kratz v. Allentown, 304 Pa. 51.

The price was excessive.

William Watson Smith, of Smith, Buchanan, Scott & Gordon, with him Mortimer B. Lesher, Miles H. England and Leon E. Hickman, for appellees. -- Discretionary powers of public officials will be interfered with by the courts only when it is made apparent that their discretion has been abused: Roth v. Marshall, 158 Pa. 272; Lamb v. Redding, 234 Pa. 481; Hibbs v. Arensberg, 276 Pa. 24; Fayette Co. Comrs. Petition, 289 Pa. 200; Phila. Electric Co. v. Phila., 301 Pa. 291.

There was no abuse of discretion in the purchase of the property: Girard Trust Co. v. Phila., 248 Pa. 179; Penna. Co. for Ins. on Lives, etc., v. Phila., 268 Pa. 559.

The contract for the purchase of the land need not be let to the lowest bidder: Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Yingling v. Dunlap, 68 Pa.Super. 425; Stratton v. Allegheny Co., 245 Pa. 519; Com. ex rel. v. Tice, 272 Pa. 447; Phila. Co. v. Pittsburgh, 253 Pa. 147.

No question of nuisance is involved: Burke v. Hollinger, 296 Pa. 510; Thoenebe v. Mosby, 257 Pa. 1.

A town hall may be erected on the property without an amendment of the zoning ordinance: State Hospital for Criminally Insane v. Water Co., 267 Pa. 29; Consolidated Cigar Corp. v. Corbin, 285 Pa. 273.

Ralph H. Smith and Thomas E. Whitten, for Charles C. McGovern, one of the county commissioners.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SCHAFFER:

This is a taxpayers' bill to restrain the county commissioners and other public officials of Allegheny County from carrying out the terms of a contract entered into by a majority of the commissioners with the Schenley Farms Company, providing for the purchase of a tract of ground as the site for a public auditorium. After hearing, the court below dismissed the bill. Two of the plaintiffs appeal.

At an election held June 26, 1928, a majority of the electors of the county voted in favor of the increase of its indebtedness in the sum of six million dollars for the purpose of acquiring land and erecting thereon a public auditorium as authorized by the Act of April 27, 1925, P.L. 340, substantially repeated by the General County Law of May 2, 1929, P.L. 1278, which provides (section 605): "Counties shall have power to take, purchase or acquire, through condemnation proceedings, property for the purpose of erecting thereon public auditoriums, public libraries, public memorial buildings and monuments."

The chancellor found that, following the popular mandate for the purchase of the ground, the commissioners had the matter under consideration for at least two years, during which time more than twenty-five properties were brought to their attention and many public hearings were held. The Allegheny County Planning Commission recommended to the commissioners the purchase of the plot here in question.

On March 19, 1931, in pursuance of a resolution theretofore passed by a majority vote of the county commissioners, two of their number, Joseph G. Armstrong and E. V. Babcock, entered into the contract now called in question for the purchase from the Schenley Farms Company of its land. Charles C. McGovern, the remaining commissioner, did not sign the contract and is opposed to the acquisition of the lot in question by the county.

The grounds for the attack on the contract laid in the bill and urged upon us are: (1) That the price to be paid is grossly excessive; (2) that there was a bartering of the county's power of condemnation for the benefit of the Farms Company; (3) that the proposed building will, if erected, violate the zoning ordinance of the City of Pittsburgh; (4) that the building will constitute a nuisance to the damage of the plaintiffs, owners of real estate in the vicinity; (5) that the site is inadequate and that a building for the uses intended cannot effectively function thereon; (6) that in agreeing to buy the property in question there was a gross abuse of administrative discretion by the commissioners; (7) that the contract permitted speculation in the real estate of others; and (8) that there will be a great waste of public money if the contract is carried out.

As to the alleged excessiveness of price fixed by the contract at eight dollars per square foot, or a total price of $1,127,911.28, the chancellor found as a fact that it was not excessive. There was testimony to the contrary, but reputable and competent real estate experts testified that the price to be paid is a fair one. We consider ourselves bound by the finding of the chancellor approved by the court in banc as to this: Houghton v. Kendrick, 285 Pa. 223; Silverstein v. Boyle, 306 Pa. 544.

Is there a bartering of the county's power of eminent domain for the benefit of the Farms Company? In order to understand the import of this question, an explanation of the physical situation of the property to be acquired is necessary. The block of ground to be purchased is bounded by Fifth Avenue, Bigelow Boulevard, Tennyson Avenue and Ruskin Avenue. Two comparatively small parcels of the land going to make up the block, both of them fronting on Bigelow Boulevard, the Farms Company did not own. One of these, belonging to Shanahan, the Farms Company had optioned prior to the execution of the contract of sale to the county. The other was owned by Keefer. This property the Farms Company was endeavoring to acquire. The contract provides that in the event the Farms Company cannot obtain it and the county in order to secure it shall be required to condemn, the county agrees to accept from the Farms Company a deed for all the rest of the land and the Farms Company agrees to indemnify the county against any payments it may be required to make for the condemned property in excess of eight dollars per square foot and to give the county an approved bond as security for such payment. Just how it can be said that this constitutes a bartering of the county's power of eminent domain for the benefit of the Farms Company, we are at a loss to see. The condemnation is not to be for the benefit of the Farms Company, but for the benefit of the county. If the condemnation price is higher than that fixed by the contract at the square foot rate, the Farms Company must pay to the county the excess.

The part that the zoning ordinance of the City of Pittsburgh plays in the controversy was much discussed in oral argument and is also a subject quite elaborately treated in the briefs. In our view it plays no part and has been eliminated so far as the proposed building is concerned by legislation and the ordinance of the city. The portion of the block of ground fronting on Bigelow Boulevard and extending back one hundred and twenty feet is in the class "B" residence district as fixed by the zoning ordinance. This classification does not permit the erection of such a building as is contemplated, a public auditorium. The remainder of the block is in the "A" residence district. Whether such a building can be constructed in that kind of a district may be open to debate, but no determination need be reached as to this owing to our conclusion that the entire zoning ordinance is now inapplicable. The law authorizing the fixing of zoning restrictions in cities of the second class is the Act of March 31, 1927, P.L. 98, 53 Purd. section 9183 et seq., which took the place of an earlier act and modified in respect to procedure the Act of May 1, 1923, P.L. 122. Under the original act, the zoning ordinance in Pittsburgh was adopted. The General County Law of 1929, heretofore cited, after empowering counties to acquire property and erect thereon public auditoriums, stipulates in section 608 that no county...