Philadelphia v. Fox , 1870 Pa. LEXIS 336 ( 1870 )

5 The opinion of the court was delivered,

by Sharswood, J.

— The City of Philadelphia is beyond all ques-

tion 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^itsl 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 form, a capacity to contract and be contracted with, to sue and be sued, a persona standi in judicio, to hold and dispose of property, and thereby to acquire rights and incur responsibilities. These franchises were conferred upon it for the purpose of enabling it the better to effect the main design of its institution, the exercise of certain of the powers of government, subordinate to the legislature, over a certain part of the territory of the state. ■ Put all this affects its relations to other persons, natural or artificial: it does not touch its relation to the state, its creator. It is nothing to the purpose, then, to show that a city may act in certain particulars as a private corporation, may make contracts as such, and that it cannot impair the obligation of a contract entered into by it in that capacity, because it may deem it for the benefit of its citizens to do so, nor is it in the power of the legislature, under the provision of the Constitution, to authorize the violation of such a contract: Western Saving Fund Society v. City of Philadelphia, 7 Casey 175, 185. It is equally aside from any question respecting its essential nature and subjection to the sovereign will to discuss its liabilities for the acts or neglects of its officers or agents, or whether it can rightly be made or has been made responsible for such as are not appointed or selected by itself, but by the state, or in some special mode provided by the state : Mayor v. Bailey, 2 Denio 433; Prather v. City, 13 B. Monroe 559 ; Alcorn v. The City, 8 Wright 348. The sovereign may continue its corporate existence, and yet assume or resume the appointments of all its officers and agents into its own hands; for the power which can create and destroy can modify and change. Indeed, the legislature of this Commonwealth, under the Constitution, could not by contract invest any municipal corporation with an irrevocable franchise of government over any part of its territory. It cannot alienate any part of the legislative power which, by the Constitution, is vested in a General Assembly annually convened : Parker v. Commonwealth, 6 Barr 507. If the legislature were to attempt to erect a municipality with a special provision that its charter should be unchangeable or irrevocable, such provision would be a nullity; for Acts of Parliament derogatory from the power of subsequent parliaments bind not: 1 Blacks. Com. 90.

That such political institutions have not and cannot have any vested rights as against the state, is strikingly illustrated and exemplified in The Borough of Dunmore’s Appeal, 2 P. F. Smith 374, where it was held by this court that municipal corporations, being creatures of legislation, have no constitutional guaranty of trial by jury, and such trial may be denied them.

' [ Such a municipal corporation may be a trustee, under the grant or will of an individual or private corporation, byt .only as it seems for public purposes, germane to its objects» The Mayor v. Elliott, 3 Rawle 170; Cresson’s Appeal, 6 Casey 437 ; Vidal v. The Mayor, 2 How. 127. I am aware that it has been said by high authority in England that it may take and hold in trust for purposes altogether private: The Mayor v. Gloucester, 1 House of Lords 285. But the administration of such trusts, and the consequent liabilities incurred, are altogether inconsistent with the public duties imposed upon the municipality. It could hardly be pretended, I think, in this country that it could be a trustee for the separate use of a married woman, to educate the children of a donor or testator, or to accumulate for the benefit of particular persons. It certainly is not compellable to execute such trusts, nor does it seem competent to accept and administer them. | The trusts 'held by the city of Philadelphia, which are enumerated in the bill before us, are germane to its objects. They are charities, and all charities are in some sense public. If a trust is for any particular persons, it is not a charity. Indefiniteness is of its essence. The objects to be benefited are strangers to the donor or testator. The widening and improvement of streets and avenues, planting them with ornamental and shade trees, the education of orphans, the building of school-houses, the assistance and encouragement of young mechanics, rewarding ingenuity in the useful arts, the establishment and support of hospitals, the distribution of soup, bread or fuel to the necessitous, are .objects within the general scope and purposes of the municipality. Í The king himself may be a trustee, though he cannot be reached by the process of any court without his consent: Hill on Trustees 49 ; and so may the state, though as I take'it under the Constitution, only for objects germane to the purposes of government. :The government of the United States has accepted and administered such a trust under the will of James Smithson “ for the promotion of knowledge among men.” When, therefore, the donors or testators of these charitable funds granted or devised them in trust to the municipality, they must be held to have done so with the full knowledge that their trustee so selected was a mere creature of the state, an agent acting under a revocable power. Substantially they trusted the good faith of the sovereign. It is plain — too plain, indeed, for argument, that the corporation by accepting such trusts, could not thereby invest itself with any immunity from legislative action. Such an act could not change its essential nature. It is surely not competent for a mere municipal organization, which is made a trustee of a charity, to set up a vested right in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the ^state from changing it as the public interests may require i. Montpelier v. East Montpelier, 29 Term. 21. This whole question is put at rest, and that as to one of the most important of these trusts and as to this trustee, by the opinion of the Supreme Court of the United States in Girard v. Philadelphia, 7 Wallace 14: “It cannot admit of a doubt,” says Mr. Justice Grier, “ that where there is a valid devise to a corporation, in trust for charitable purposes, unaffected by any question as to its validity because of superstition, the sovereign may interfere to enforce the execution of the trusts, either by changing the administrator if the corporation be dissolved, or if not, by modifying or enlarging its franchises, provided the trust be not perverted, and no wrong done to the beneficiaries. Where the trustee is a corporation, no modification of its franchises or change in its name, while its identity remains, can affect its rights to hold property devised to it for any purpose.” ..With equal plausibility hnight it be pretended that the acceptance by the government of the United States of the bequest of James Smithson limited the power of amendment contained in the Federal Constitution. If it could have such effect, the only logical consequence would be that the acceptance of a trust would be ultra vires and void: and so if the acceptance of a trust by a municipal corporation can operate to impair the power of the sovereign over it as such, the acceptance .is a nullity. ,. i.

In consistency with these views, for which I have forborne to cite cases which might, however, be heaped up ad nauseam,) on what principle can the Act of June 30th 1869 (Pamph. L. 1276) be declared unconstitutional ? It provides merely that one class of the functions of the municipality shall be administered in a manner different from that which has been used heretofore. The head and front of its offending hath this extent — no more. It is a change in internal organization. It provides a separate body of citizens for the administration of the trusts vested in the city. It makes that body a permanent one, holding their offices during good behavior — it imposes upon it all the duties devolved on the corporation itself as trustee — it perverts no one of the trusts— it does wrong to none of the beneficiaries. We have nothing to do with the wisdom of the measure — with the policy of having such a board dissociated from the general government of the city, or with the mode of its selection. Those are questions exclusively for the legislature. No one I think can doubt that it was entirely competent for that authority to vest the entire management and control of all municipal affairs in just such a body as that constituted by this act. If they could do the greater, they can do the less. They could make a similar provision for any other department of the municipality. They might establish a board of police, of highways, of sewerage, of cleansing. They have often done so. The departments of the prison, of health, of the poor and of the public schools have been placed in the hands of bodies of men constituted and appointed just as is “ The Board of Directors of City Trusts,” and no one has ever thought of questioning the constitutionality of these several acts of the legislature. For if the legislature, acting for the state, can resume all the franchises of the municipality into its own hands, which is a conceded premise, it can certainly resume any part. Omne majus continet in se minus. * d ■ ;' ■

It is said, however, that as to some of the trusts under the will of Stephen Girard, there was a contract which the legislature cannot constitutionally impair. If this were even so, it would be no valid ground for declaring the act void as to all the other trusts. But there is no such contract impaired by this act. Mr. Girard left $300,000 to the Commonwealth, to be applied to the purposes of internal navigation, on the condition that certain laws should be passed as to Delaware avenue, Water street and wooden or brick-paned buildings. The money was accepted and the laws were passed. They stand unchanged and unrepealed on the statute book. No alteration or modification of them by any of the provisions of this act has been or can be pointed out. It is a contract, if a contract at all, completely executed and fulfilled on both sides.

It remains to consider one more ground of objection to this act. It is seriously and earnestly contended that it is in contravention of the 11th section of the 9th article of the Constitution, which declares “ that all courts shall be open and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by the due course of law, and right and justice administered without sale, denial or delay.” It is supposed, if I understand the argument aright, that because the judges of this court, and of the District Court and the Court of Common Pleas of Philadelphia, are vested with the function of appointing the directors of the city trusts, of displacing them if unfaithful, and of filling vacancies, they are thereby rendered incompetent to decide any controversies which may arise out of the management of the trusts by them. It is said they are thereby made judges in their own cause. Conceding it to be unconstitutional for the legislature to make a man a judge in a case in which he is a party litigant, it is not easy to comprehend how it reaches this act. As was well said in the argument, this very proceeding is a practical refutation of the idea that this court or any other court is not open to these plaintiffs or anybody else who may have just cause of action at law or in equity against this Board of City Trusts. Nay, can any one doubt that this proceeding might have been anticipated in limine, and a bill filed against the board of appointment itself to enjoin it from proceeding to obey the behests of the legislature? A judge who is actually a trustee of a charity may from delicacy decline to sit in a case in which he is a party as such, but surely, as he has no pecuniary interest in the result, there is no moral or legal reason why he should not. If it is necessary it is his duty to do so. I have no doubt it has been often done, but I will mention one instance within my own experience. The city of Philadelphia in 1859 filed a claim for taxes against the building occupied by the American Philosophical Society on Independence Square under a grant from the Commonwealth, and issued a scire facias thereon in the District Court for the city and county of Philadelphia, and it was necessary that the court should decide upon the liability of the society to pay those taxes. My Brother Hare and myself were both members of the society, and would gladly have excused ourselves from taking any part in the decision. But it was impossible. Without one of us at least there could have been no court. We heard and decided the case in favor of the society, and that judgment was affirmed by this court: City of Philadelphia v. The American Philosophical Society, 6 Wright 9. The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest —where no provision is made for calling another in, or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be. I The rights of the other party require it: 2 Roll. Ab. 93; Dimes v. Grand Junction Railroad, 3 House of Lords Cases 759. The Act of Assembly of April 14th 1834, § 37, Pamph. L. 349, makes provision for special courts in four cases specified — where the president judge is personally interested in the event of any cause depending, when the title of either party is derived from or through him or where he holds under the same title, when any near relation of the president shall be a party or interested, or whenever he has been attorney or counsel for either of the parties in the cause or any other cause touching the same subject-matter; and by the 8th section of the Act of April 4th 1843, Pamph. L. 133, the provisions of the Act of 1834 above referred to, are extended to the judges of the Orphans’ Court, Register’s Court, Quarter Sessions or Oyer and Terminer. It will be observed that the case of a judge being a nominal party is not specified as a disqualification unless he is personally interested. This court has held that an objection to competency, under the act for the establishment of special courts, must be addressed to the discretion of the judge himself, and his decision is not reviewable on a writ of error: Barrington v. Bank of Washington, 14 S. & R. 405; Ellmaker v. Buckley, 16 Id. 72 ; Philadelphia Library Co. v. Ingham, 1 Whart. 72. “ This,” said Gibson, C. J., “ is conformably to the principle of the common law, which exempts a judge from challenge.” That a judge is one of the trustees of a charity is no disqualification, much less where he merely appoints such trustee. No one ever heard before that he was disqualified to sit in the cause of a trustee of his own appointment. In the case directly before us there is nothing in the position of the judges as members of the board of appointment which could possibly influence their opinion or prevent a fair and impartial consideration and decision of any cause which might grow out of their proceedings.

Decree affirmed, and appeal dismissed at the costs of the appellants.