City of Philadelphia v. Field , 58 Pa. 320 ( 1868 )

The opinion of the court was delivered, July 2d 1868, by

Read, J.

The whole law making power of the state is committed to the legislature with certain restrictions and limitations imposed on that body by the constitution. Independently of those limitations the legislative power is supreme within its proper sphere.

In the exercise of this power the legislature have dug canals, built bridges and railroads, and paid for them by money raised by loans and taxation. This power is indisputable, and upon its constitutionality depends our large state debt. The legislature could undoubtedly build this bridge over a navigable river at South street, and pay for it by moneys proceeding from loans or taxes, and in doing it they might employ commissioners to erect it. This must be conceded, and it is but one step further, to impose the cost of erection on the city and county, through which the river passes and empties itself into the Delaware, and across which the bridge is thrown, connecting the east and west banks of the Schuylkill, upon which Philadelphia is built.

It becomes in fact a bridge of necessity, connecting two growing portions of the city, and forming a part of a continuous highway from the Delaware to the remotest parts of West Philadelphia. The city has an area of one hundred and thirty square miles and eight hundred thousand souls, and the question is, cannot the state place the cost of this great public improvement upon a locality and a population directly benefited by it ? This does not appear to admit of argument, for the mere statement of it is sufficient.

But we are not wanting in direct authority upon this point. In Thomas v. Leland, 24 Wendell 65, it was held, that an act of the legislature imposing a tax upon a local district of the state, in reference to a public improvement, such as a canal, is valid and constitutional, notwithstanding that previous to the passage of such act, a number of individuals of such district had entered into a bond to the state, by which they bound themselves to pay the whole expense of the improvement. In answer to some objections Mr. Justice Cowen says, “ But the argument proves quite too much. It would go to cut off entirely many acknowledged powers of taxation; such as that which raises money to relieve the poor, or establish and keep on foot common schools, to build bridges, or work the highway. It confounds two distinct legislative powers: a simple power of taxation with the power of taking private property for public use. The former acts upon communities, and may be exerted in favorof any object which the legislature shall deem for the public benefit. A tax to build a lunatic asylum may be mentioned as one instance. If the power to impose such a tax were to be rested on the ground of individual pecuniary benefit to each one who should be called on to contribute, it is quite obvious that it would not be maintained for a moment. Yet who would doubt that sueh might be imposed on a local community, a county or even a town ? I admit that this power of taxation may be abused; but its exercise cannot be judicially restrained-, so long as it is referable to the taxing power.”

The same doctrine is laid down in Norwich v. County Commissioners of Hampshire, 13 Pickering 60, and Hingham and Quincy Bridge and Turnpike Corporation v. County of Norfolk, 6 Allen 353. “ It has been the practice,” says C. J. Shaw, “ from the earliest times to charge the costs of certain large and expensive bridges, in whole or in part upon counties; and it is impossible to deny the equity of these provisions.” “ One of the main purposes,” says C. J. Bigelow, “of this .general grant of power, was to vest in the legislature a superintending and controlling authority, under and by virtue of which, they might enact all laws, not repugnant to the constitution, of a police and municipal nature, and necessary to the due regulation of the internal affairs of the •Commonwealth. It is obvious, that the exercise of such a power is absolutely indispensable, in a wisely governed and well ordered community; and among the purposes for which it is to be exerted, none is more essential than a wise and careful distribution of certain public burdens or duties. Of these a leading one is the construction, support and maintenance of roads ahid bridges.” Mr. Sedgwick, in his Treatise on Statutory and Constitutional Law, says, p. 554, “ As a general rule the taxing power has been treated by the judiciary as vested in the .absolute discretion of the legislative bodies. This doctrine has been repeatedly declared both by the state and Federal tribunals.” “ So the Supreme Court of the United States have said, that there is no limitation whatever upon the legislative power of the states, as to the amount or objects of taxation.”

The act before us imposes the cost of erecting this bridge upon the county of Philadelphia, and the money is to be raised by a loan created by the commissioners, and to be deposited with the treasurer of the city of Philadelphia, to be checked out by the officers of the commission, and expended on the construction of the bridge. By the 4th section the councils are to provide for the principal and interest of this debt, which thus will become a part of the city debt. In King & Ross v. The City of Brooklyn, 42 Barbour 627, we find a similar statute in New York for widening Fourth avenue in Brooklyn, by a board of commissioners, the difference being that the city, and not the commissioners, were to issue the bonds.

The object of this act is to build a free bridge over the Schuylkill at the cost of the county. All the present bridges over that river from the Girard avenue bridge to its mouth are free, and they have been made so wholly or partially at the cost of the county.

There were four principal ferries over the river Schuylkill, one at High or Market street vested by the Colonial Act of 1723 in the then corporation of the city, the Upper or Roach’s Ferry as it was then called, at Fairmount, the Lower (then Blunston’s) Ferry, since Gray’s Ferry, and Penrose’s Ferry, near the mouth of the river. The three first named ferries were succeeded by floating bridges which opened to admit vessels. The bridge at High street was superseded by the Permanent Bridge erected under an Act of 16th March 1798, and opened for passengers and .transportation on the 1st day of January 1805, and cost $300,000. The first bridge of a permanent character near where the floating bridge of Abraham Sheridan was, known by the name of “ The Upper Ferry,” was erected under an Act of 28th March 1811, and cost $126,000. This bridge, which had only a single arch of wood of 140 feet span, wyas burned down, and the present wire bridge built at the expense of the county by Charles Ellet, civil engineer, for $50,000, the abutments of the former bridge having been purchased by the district of Spring Garden for $15,000.

Under two Acts jf Assembly of the 24th February and 7th March 1837, the Philadelphia, Wilmington and Baltimore Railroad Company purchased the Gray’s Ferry floating bridge and estate, and erected the present bridge' for railroad and other travel-ling and transportation with a draw in it. By an act to authorize the erection of free bridges over the river' Schuylkill at or near Philadelphia, passed 16th March 1839, the wire bridge at Fair-mount was erected by the county commissioners with the consent of the county board, one-third of the expense being provided by voluntary subscription, and the Permanent Bridge at Market street was freed by the county commissioners paying the company $80,000, one-third of which was provided by private subscriptions. The bridge and site were conveyed to the city. This purchase rendered the provision for a free bridge at Mulberry or Arch street nugatory. By the last section the county commissioners with the consent of the county board were authorized to and did contract with the railroad company for a free passage for ever of the Gray’s Ferry Bridge for $55,000; by an agreement dated the 10th November 1847, the company to maintain the structure in good order.

The bridge at Market street was rebuilt by the city to suit the uses of the city railroad.

Under the Act of 27th March 1852, to authorize the erection of free bridges over the river Schuylkill, the Girard avenue bridge was built by the county commissioners, and finished by the city at a cost of $93,560.

Under the same act, and the 8th section of the Act of 21st April 1855, and the 3d section of the Act of 16th May 1857, the Chestnut street bridge was erected by the city at a cost of $500,477.79, of which sum the Philadelphia City Passenger Railway Company provided $100,000 in their bonds. It was commenced on the 19th September 1861, and completed July 4th 1866. There will be found an interesting discussion in relation to this bridge in The Board of Wardens v. The City of Philadelphia, 6 Wright 209.

The Rope Ferry, near the mouth of the Schuylkill, was superseded by the Penrose Ferrybridge, erected by the Penrose Ferry Bridge Company, under Acts of April 9th 1853 and 13th April 1854, as a toll-bridge, and was purchased by the city under the ordinance of December 17th 1862 for the sum of $30,000, and was made a free bridge. Since that period it has cost the city in repairs $15,000, and in an entire rebuilding, $66,261.11.

The Peter’s Island bridge was built by the state for the Columbia railroad, and was purchased and is owned by the Philadelphia and Reading Railroad Company, and one side of it is used as a toll-bridge for passengers and carriages and other vehicles.

The Schuylkill Ealls bridge was built by a company as a toll-bridge, and was purchased by the city and made a free bridge under the Acts of 5th April 1855 and 15th March 1859, and the ordinance of March -3d 1860. The amount paid was $15,000, and it was afterwards rebuilt by the city at a cost of $17,500 in 1861.

All the bridges, therefore, from the Ealls to the mouth of Schuylkill are free, excepting the Peter’s Island and the railroad bridges of the Connecting Railroad and Pennsylvania Railroad, and have been made so at a very heavy expense to the county of Philadelphia, whether called by that name or its present name of the city of Philadelphia.

By an act to authorize the erection of a free bridge over the river Schuylkill, at South street in the city of Philadelphia, passed May 16th 1861, the councils of the city were authorized and required to erect a good and substantial bridge over the river Schuylkill, at or opposite to South street, its cost not to exceed $250,000, provided for by a loan to be raised as therein directed, said bridge to be free, and kept in repair, lighted, watched, altered, remodelled or renewed, if necessary, at the proper costs and charges of the city of Philadelphia.

The city having taken no action under this law, a supplement to it was passed 5th April 1866, appointing commissioners to build the bridge, with authority to create a loan not exceeding $600,000, payable by the city of Philadelphia. After further opposition by councils, the legislature, on the 5th April 1867, passed a further supplement making it the duty of the chief engineer and surveyor of the city to direct the building of the bridge under the supervision and control of the commissioners. The bridge was to have a sufficient and convenient draw for masted vessels, and to defray the additional expense the commissioners are authorized to create an additional loan of $200,000. These loans to be at 6 per cent, and payable by the city in forty years, and the proceeds paid to the city treasurer. The councils are to provide for the payment of the interest, and a sinking fund to extinguish the principal in forty years. The mayor, the presidents of councils and other gentlemen are created additional commissioners. The councils contest the constitutionality of these acts, and under a resolution of those bodies the city solicitor has filed this bill to test that question, and has made a very learned and elaborate argument to show that these laws are violations of the constitution, and that this court is bound to enjoin the erection of this bridge as directed by those acts.

“It will not be denied,” said Judge Woodward, “that the legislature may rule over the Schuylkill by whatever agency is most satisfactory. Nor can it be doubted that a subsequently appointed special agent supersedes and displaces a previously appointed general agent, and this without express words declaratory of the intention to substitute. Counsel invoke those principles of strict construction which apply to grants to private corporations, as if the city of Philadelphia were a bridge company claiming a valuable franchise in derogation of the public rights; but it must be manifest that this is not the case for the application of these principles. The city is not a private but a municipal corporation, and is to derive no profit whatever from the bridge, for it is to be a free and not a toll-bridge. The city like the county commissioners are a selected agency for carrying out the purposes of the legislature to bridge the Schuylkill for the benefit of all the people of the Commonwealth:” 6 Wright 218.

This is strictly applicable to the present case: the city declined the agency, and a special agent is appointed to do what she has refused to perform. The legislature, in the legitimate exercise of its power, has imposed the cost of bridging the river, as she has done before, on the county — the present city. “ The only interest involved is the public interest, and no other is concerned in their” (municipal corporations) “ erection, continuance, alterations or renewals. The nature and operation of these corporations repudiate the idea of vested rights.” “We know of no vested rights of political power in any citizen or body of citizens, except those conferred by the constitution:” 13 Wend. 337. The corporation of the city can be changed, altered or repealed by the legislature, and it would be a singular anomaly if that body could not by its own officers erect abridge over a navigable river which is certainly not a duty of a city, unless required by the sovereign power of the state, and put the costs on the city.

Our opinion therefore is that these acts are constitutional and must be obeyed.

The decree is affirmed, and appeal dismissed at the cost of the appellants.

Thompson, C. J., and Sharswood, J., dissented.