Wheeler v. Rice

• Decision Date: 15 January 1877
• Citation: 83 Pa. 232
• Parties: Wheeler <I>et al. versus</I> Rice <I>et al.</I>
• Court: Pennsylvania Supreme Court

83 Pa. 232

Wheeler et al. versus Rice et al.

Supreme Court of Pennsylvania.

January 4 and 5, 1877.

January 15, 1877.

January 4th and 5th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS, J., absent

Certificate from Nisi Prius; Of January Term 1876, No. 11.

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E. S. Miller, for the appellants.—Baird v. Rice cannot, under the pleadings, affect this case.

The Act of 1846 only applies where public buildings are being erected under a valid Act of Assembly; here, we contend there is no valid act. It also only applies to cases where public works are being erected on private property under a valid act, and the owner seeks to enjoin the building before his damages are paid. The act is only declaratory of the law as laid down in Heston v. Canal Commissioners, Brightly 183.

The act contains three subjects, of which the first and third at least have no necessary connection with each other: Blood v. Mercelliott, 3 P. F. Smith 395; Baldwin v. The Mayor, &c., 42 Barb. 549; Pullman v. The Mayor, &c., 54 Id. 169; Wood v. The Mayor, &c., 34 Howard P. R. 500; Mosier v. Hilton, 15 Barb. 657; Fishkill Plank-road Co., 22 Id. 634.

The act contained a delegation of legislative power to the voters in regard to the disposition of Penn square, and was therefore void: Chenango Co. Bank v. Brown, 26 N. Y. 467; State v. Commissioners of Perry County, 5 Ohio St. 507; Barto v. Himrod, 8 N. Y. 483.

The act provides for giving away Penn square to private corporations; this even the legislature could not do: Le Clercq v. Trustees of Gallipolis, 7 Ohio 218; Barclay v. Howell's Lessees, 6 Pet. 507; New Orleans v. United States, 10 Id. 663; Commonwealth v. Alburger, 1 Whart. 469; Same v. Rush, 2 Harris 187; Warren v. The Mayor, 22 Iowa 351.

Where one part of an act is so necessarily connected with another that they manifestly form parts of a whole, and one is void, the other necessarily falls: Cooley's Cons. Lim. 177; Meshmeier v. State, 11 Ind. 484; State v. Commissioners, &c., supra.

R. N. Willson and C. H. T Collis, for the appellees.—Baird v. Rice, even if not technically a determination of the same question between the same parties, was a suit brought by parties bearing the same relation to the controversy as these plaintiffs, that of tax-payers.

The language of the Act of 1846 is too broad to admit of any exceptions; it applies to all public buildings in process of erection under an act of the legislature.

There is nothing in the Act of 1870 which may not fairly and without straining be referred to one general subject or purpose. "The subject was a compound one involving alternatives mutually dependent or consequential. The title expresses all the purposes of the act except one, which is directly consequential:" Cadwalader, J., in Leger v. Rice, 8 Philadelphia 167. The provisions as to Independence square need not therefore be referred to in the title: Dorsey's Appeal, 22 P. F. Smith 192; Blood v. Mercelliott, supra; Allegheny Co. Home's Appeal, 32 Leg. Int. 4; see also Neifing v. Pontiac, 56 Ill. 172; Prescott v. Chicago, 60 Id. 121; People v. Rochester, 50 N. Y. 525; McCaslin v. State, 44 Ind. 151.

Even if the provisions in regard to Penn and Independence squares ought to have been referred to in the title and are therefore void, the rest of the act stands: Allegheny Home's Appeal, supra.

The disposition of Penn square was not left to a vote of the people; the legislature merely provided for that in the event of Washington square being selected by the people as a site. But even admitting that the people were to vote upon the disposal of Penn square, such a course could be fully justified under Locke's Appeal, 22 P. F. Smith 491, and the cases there cited.

The act did not contemplate a gift of Penn square, but only of a right to occupy it, which is clearly within the power of the people to give: Kittaning Academy v. Brown, 5 Wright 269. Baird v. Rice shows that Penn square was intended for buildings, and under the case of City v. Am. Philos. Soc., 6 Wright 9, the purposes to which the square was contingently devoted by the legislature were sufficiently public to make such a use of the square proper, even though the legislature cannot authorize a sale of the property.

But the rest of the act may stand even though the part of it applying to Penn square is void: Cooley's Const. Lim. 178.

Finally, the mere possibility that the provision as to Penn square might have...