City of Wilkes-Barre v. Chase ( 1898 )

Opinion by

Wickham, J.,

By section 29 of the Act of May 4, 1871, P. L. 539, incorporating the city of Wilkes-Barre, the receiver of taxes was required to maintain his office in the fifth ward in said city. This part of the act was repealed, however, by the supplemental Act of April 2, 1872, P. L. 740, which provides that the receiver “ may have his office in such place as may be approved by the council.” In construing these acts, it was held by the present president judge of this court, in Gilchrist v. City, 5 Kulp, 289, that the city is under no legal obligation to furnish the receiver with an office, or to repay him for his expenditures for rent, light, and heat.

It appears, from the case stated, that the council, instead of confining themselves to the sphere of action prescribed by the act of 1872, that is, the approving or disapproving of the place selected by the receiver, undertook to make the original selection for themselves, giving him no primary choice or nomina-, tion in the matter. They decided, in advance, that they would approve of no office save the one which they had prepared for his occupancy in the new city building. Concededly, it would have been useless for him to have named any other place, and asked the council to consider it.

Under this somewhat peculiar form of duress, the receiver moved into and occupied the suite of rooms set apart for him. Later, a resolution was passed, by the council, whereof, so far as the case stated shows, he had no notice or knowledge, requiring him to pay $300 per annum for rent. There is nothing on the record to show that he ever assented or agreed to pay this, or any other sum, or that he was given to understand, until after the alleged rent had accrued, that there was any intention to hold him liable therefor. He was, in a manner, coerced by an undue exercise of authority, on the part of the council, to occupy the offices in the city building.

Had they permitted him to name some other place, obtainable for perhaps one half the rent sought to be collected, he might, after a conference, have been able to satisfy them that such place would have been reasonably suitable. But, they prejudged and predecided the matter, determining, beforehand, not to hearken to his wishes, or to consider at all any other place than the rooms in the city building. Likely enough, the result was to promote the convenience of the public, but the officer has legal rights which cannot arbitrarily be disregarded. No doubt, too, the rent, considering the quarters given him, is reasonable enough, but for that matter he might, if the plaintiff’s contention is correct, be compelled to occupy still more pretentious and costly apartments for which $1,000 a year might not be deemed unreasonable. The decision of this case does not turn on the reasonableness or unreasonableness of the rent sued for. The action is for use and occupation and cannot be sustained, unless the plaintiff establishes an express or implied contract, on the part of the defendant, to pay. The relation of landlord and tenant must be shown to have existed: 27 Am. & Eng. Ency. of Law, 908; Pott v. Lesher, 1 Yeates, 576 ; Brolasky v. Ferguson, 48 Pa. 434. “Although the law will imply a contract to pay rent from the mere fact of occupation, yet this action lies only where the relation of landlord and tenant subsists between the parties, founded on agreement express or implied: ” Taylor’s Landlord and Tenant, sec. 636.

The difficulty with the plaintiff’s case is, that the necessary inference from the facts agreed on, shows that the city had no contract with defendant. The whole matter was unilateral. The offices were arranged and fitted up by the city, at its own instance and to serve its own ends, no doubt very proper ones, without any request on the part of the tax receiver, who was then, nolens volens, required to occupy them. Nothing was said or intimated to him about paying rent, and looking at all the circumstances, so far as they are revealed by the case stated, outside of which we cannot go, the plaintiff’s claim is not sustained by either an express or implied agreement. This being the case, it is unnecessary to consider and decide the question of ultra vires, raised at the argument.

The judgment of the court below, on the case stated, is reversed and judgment entered in favor of defendant.