Wartman et al. v. The City of Philadelphia et al.

• Decision Date: 01 January 1859
• Citation: 33 Pa. 202
• Parties: Wartman et al. versus The City of Philadelphia et al. Pratt et al. versus The Same.
• Court: Pennsylvania Supreme Court

33 Pa. 202

Wartman et al. versus The City of Philadelphia et al. Pratt et al. versus The Same.

Supreme Court of Pennsylvania.

IN EQUITY. Motion for special injunction.^*

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W. L. Hirst and Speakman, for the complainants.

Olmsted, for the defendants.

The opinion of the court was delivered by BLACK, C. J.

The plaintiffs in the first of these cases, are citizens and tax-payers in the Northern Liberties and Spring Garden. The plaintiffs in the other case are farmers, resident in the counties of Delaware, Chester, and Montgomery, and lessees of certain stalls in the High street market of the city. The matter complained of in both bills is, that the city councils have resolved to contract for the erection of new market-houses, with the intention of demolishing those already existing in High street, an act which, if consummated, the plaintiffs aver, will greatly prejudice the legal rights of the farmers, increase the taxation of the newly consolidated city, and be otherwise detrimental to the public interest.

The admitted facts are, that on the 8th of December 1853, the councils authorized the committee on city property to negotiate for sites for new market-houses, in four different quarters of the city, with the view of ultimately removing those in High street. The committee, in pursuance of this resolution, negotiated for certain lots, and reported to the councils, recommending the purchase of them at $650,000. On the 30th of January 1854, the councils ordered them to be purchased, and it was immediately done. On the 2d of February, an ordinance was passed authorizing the issue of certificates of loan, for the payment of the price of the property purchased. The Act of Assembly, consolidating the city and the districts, previously composing the county of Philadelphia, into one city, was signed by the governor and became a law on the 2d day of February last.

This motion for a special injunction ought to be successful, if there be any fair reason for the opinion, that the facts disclose an intention to do that which the city authorities had no legal power to do. All that appears in the bills and answers, and everything that has been said in the argument, on the one side as well as on the other, have tended to impress us with a feeling unfavourable to the justice and propriety of these proceedings. The addition of six hundred and fifty thousand dollars to the public debt, involving the necessity of another large expenditure for building, would possibly not have been made, if the present councils had anticipated that their own constituents would be compelled to pay it. But it was done when the consolidation law was on its passage, and when it must have been known, or at least confidently believed, that the greater part of the burden, thus suddenly created for the benefit of the old city, would have to be borne by a different people, outside of its limits, who were not represented in the councils, and to whom the members were not responsible.

But the case, as it comes before us, is a question of law, and not of morality — of power, and not of propriety. If they kept their action within the bounds of the authority given them in their charter and the general law of the land, and if that authority was not taken away or diminished by any law existing at the time, the motion must be refused. If this was a matter which they had a right to decide, they are not bound to vindicate the propriety of their decision to us; and this, perhaps, we ought to presume, is the reason why they have not attempted to do so. If it be a legal exercise of their power, we must pronounce it legal, without pausing to be satisfied also of its justice. We have no jurisdiction which enables us to control the abuses of such authority. We can only check the usurpation of that which does not exist.

In the view which we take of the subject, it is not necessary to consider the purchase of sites for new market-houses and the demolition of the old ones, as two separate questions. It is true, that one of these acts may be done and the other not, and arguments are made for and against one which do not apply to the other. But by the construction which common sense puts on the resolutions and ordinances of the councils, it seems very plain, that they have purchased the property mentioned in the bill, with a view to the ultimate removal of the structures now standing on High street. This then is to be considered, not as the creation of a debt for building new and unnecessary market-houses, without any abandonment of the old ones; nor is it the demolition of the old ones, without substituting others in their place. It is the removal of the markets from one place to another. It is changing their location from the centre of High street, to the lots purchased in four different sections of the city. It is tearing down the open sheds and building close-walled houses. It is giving up eight squares of stalls, and supplying the public with what is equal in capacity to fourteen squares.

The inquiry into the legal power of the councils to change the places of selling and buying provisions, divides itself naturally and simply into two branches. 1st. Whether the authority ever existed? and 2d. If it existed previously, did the consolidation act take it away? We will consider the latter proposition first.

The act referred to as the consolidation act, provides, that when the government of the new corporation is organized, the debts of the present city and of all the districts shall be consolidated into one, and forbids that any of the present corporations "shall at any time, after the passage of this act, contract any loan or debt, other than for the ordinary supplies, repairs, and payment of labour and salaries." Now it is wholly impossible for us to say that this prohibition to contract extraordinary debts after the passage of the law, applies to debts created before its passage. There is nothing retrospective in it. If the debt in question was legally contracted, the legislature could not annul it by an act of theirs subsequently passed; much less could we annul it by the mere construction of a statute, which in terms does not touch it. We have only to inquire, then, whether the debt was contracted before or after the passage of the consolidation act. An act of the legislature is passed, only when it has gone through all the forms made necessary by the constitution to give it force and validity, as a binding rule of conduct for the citizen. Whether it receives the signature of the governor, or remains in his hands unreturned for ten days, or being vetoed, is carried by two-thirds of both houses, its passage is dated from the time it ceased to be a mere proposition or bill, and passed into a law. It cannot impair a contract made while it was pending before the executive, any more than it could destroy a legal obligation existing a year before it was moved in by the legislature. It would be ex post facto, if it provided for the punishment of a crime committed the day before its approval, as clearly as if it assumed to reach back to...