Wartman v. City of Philadelphia , 33 Pa. 202 ( 1859 )

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 vras 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 the beginning of time. The act in question was approved on the 2d of February 1854. On the evening of that day, and we will presume after the bill was signed, the city councils authorized certificates of loan to be issued to the several vendors of the real estate purchased as sites for the new market-houses. If the debt had not been contracted before that time, it would probably have been too late to be binding on the new city. But the negotiation had been authorized as early as the 8th of December, and the committee on city property had reported a provisional contract with the other defendants on the 30th of January. This report was approved and the purchase ratified by councils the same day. The written contracts, executed on behalf of the city by the mayor, and sealed with the corporate seal of the city, are dated on the 1st day of February. The debt was made at that time, and not when the certificates of loan were issued. It cannot be said, that the contract is illegal, because a law passed the day afterwards, prohibited such contracts in the future. When an argument similar to that now made by the plaintiffs’ counsel was urged upon this court in the case of Dana v. The United States Bank, 5 W. & S. 223, the opinion of Mr. Justice Kennedy declared it to be without the shadow of a foundation.

A more important, if not a more difficult point, is, whether the councils had the power, before the consolidation act was passed, to remove the market-houses from High street to other places within the city. It is argued, that the city corporation is a mere trustee for the farmers and victuallers, or country people, bound to maintain the markets for their use, at the places where they now are, and without authority to remove them except with their consent.

The necessity of a public market, where the producers and consumers of fresh provisions can be brought together at stated times for the purchase and sale of those commodities, is very apparent. There is nothing which more imperatively requires the constant supervision of some authority which can regulate and control it. Such authority in this country is seldom, if ever, vested in individuals. It can never be so well placed, as when it is put into the hands of the corporate officers who- represent the people immediately interested. A municipal corporation, comprising a town of any considerable magnitude, without a public market subject to the regulation of its own local authorities, would be an anomaly which at present has no existence among us. The state might undoubtedly withhold from a town or a city the right to regulate its markets, but to do so would be an act of mere tyranny, and a gross violation of the principle universally conceded to be just, that every community, whether large or small, should be permitted to control, in their own way, all those things which concern nobody but themselves. The daily supply of food to the people of a city is emphatically their own affair. It is true, that the persons who bring provisions to the market have also a sort of interest in it, but not such an interest as entitles them to a voice in its regulation. The laws of a market (I am now using the word in its larger sense) are always made by the persons who reside at the place, and that whether they be buyers or sellers. It is, therefore, the common law of Pennsylvania, that every municipal corporation which has power to make by-laws and establish ordinances to promote the general welfare, and preserve the peace of a town or city, may fix the time or places .of holding public markets for the sale of food, and make such other regulations concerning them as may conduce to the public interest. 'We take this to be the true rule, because it is necessary and proper, in harmony with the sentiments of the people, universally practised by the towns, and universally submitted to by the residents in the country.

The municipal corporation known to the law by the name of “ The Mayor, Aldermen and Citizens of Philadelphia,” had this power, not only by virtue of the general terms of its charter, and from the necessity of the thing, to prevent a principal object of their organization from being defeated, but it was conferred in express terms. In the charter given to the city by William Penn in 1701, markets were authorized two days in the week, without designating the place. This charter was supposed to be annulled by the Declaration of Independence, and during the revolutionary period, the city was governed by wardens. In 1789, a new charter was given, and the privileges relating to markets were granted again. If there were any ambiguity in these acts, those of 1804 and 1810 would put all doubts at rest. They provide that the councils shall have power to erect market-houses where they please, and regulate them as they think proper, so that no existing law of the Commonwealth be violated.

The right to establish a market includes the right to shift it from place to place, when the convenience or necessities of the people demand it. This was decided in 1817, by the Court of King’s Bench, in Rex v. Cottrell, 1 Barn. & Ald. 67, a case very much like the present- If the English law, saturated as it is with conservatism, and particularly hostile as it was at the time to everything which might change the old customs of the boroughs, had regard enough for the public necessities and convenience, to adopt this rule, it will hardly be rejected here, where changes are so rapid, improvement so necessary, and the prejudice against reforms so slight. It would be fastening a strange imbecility upon the government of an American city, to decide that it shall not have new market-houses, whatever may be the need of the people, without also maintaining old ones after they become useless.

But the general right to build market-houses and to shift them from place to place, as occasion may require, does not imply a right to build them on the public highway. High street is a public highway, made so by the words of the Penn charter. The market-houses built in the middle of it were a nuisance previous to the Act of 1804. Those who maintained them might have been indicted, and any citizen could have abated them. It required the supreme legislative authority of the state to take away from them their criminal character. The members of the common council were mistaken when they voted, in 1773, that they were satisfied of their right to obstruct the middle of the street, if they left a proper space on each side of the passage for carriages. They could no more obstruct it partially, than close it altogether, and a nuisance erected and maintained by a public corporation in a highway dedicated to the use of the whole people, is as liable to legal punishment, as the same acts done by private parties. It was so decided by the Supreme Court of Alabama, in The State v. The City of Mobile, 5 Porter 279, a case precisely like this; and our own cases 3f The Commonwealth v. Rush, 2 Harris 186, and Commonwealth v. Bowman, 8 Barr 206, abundantly show that the same principle is part of the law in this state.

When the legislature, in 1804 and 1810, legalized the market-houses on High street, and authorized their extension, it created a privilege, not an obligation. Those laws were merely permissive. If the members of the corporation became convinced, in the course of time, that the unobstructed use of the street as a highway, was of greater public value than its occupation as a market, they were free to leave it to the purpose for which it was originally intended, and fall back on their previously existing right to build market-houses elsewhere. If the privilege of using the street as a market-place, was coupled with the condition that the stalls should be free, that condition would be annulled by the abandonment of the privilege. Besides, we think it very clear that the Act of 1804, making the stalls free to the country people for ever, was repealed by the Act of 1810, which authorized the corporation to let one half the stalls to farmers, and the other half to butchers and victuallers, at an annual rent, not exceeding twenty dollars. It is true, that the words of the act are not absolutely free from ambiguity. It is possible, that the authority to rent stalls was intended to relate to those subsequently erected. But there has not been a free stall in any part of the High street market since 1810. After a uniform construction has been given to the law, for nearly half a century, by all the parties interested, and, among others, by the present plaintiffs themselves, it is too late to expect that we will give another. Mr. Pratt, and the other farmers who complain with him, being mere lessees from year to year, without the right of renewal, are not so interested as to make it necessary for their sakes to stop the progress of a contemplated improvement which concerns so many other persons. If they should be illegally disturbed before the expiration of their present lease, an action at law will give them a full remedy.

It is said, that the old city corporation holds the property it possesses in trust for the new one, and therefore it is disabled from taking down or destroying any part of it. The 87th section of the consolidation act declares, that all the property (markets included) of all the municipal corporations within the county of Philadelphia shall be vested in the consolidated city. But this provision is not to take effect until the first organization of the new city councils. Until then, the title to this property remains where it was before, as completely unaffected by the law as if it had never been passed. When it does come into the hands of the new corporation, it must be held for the same uses to which it is now devoted. In the mean time, the power to manage and administer it remains, Hice the title, unchanged. If it be mismanaged and maladministered, we are powerless to help it. With every inclination to do so, we find nothing in the law which enables us to interfere.

The action of the councils on this subject was within their jurisdiction, and from their decision upon it there is no appeal, except to the public opinion of the new city. To that tribunal, therefore, we remit all parties.

Motion refused.