King v. Philadelphia Co. , 154 Pa. 160 ( 1893 )

Opinion bx

Me. Justice Geeen,

It is not at ail questioned that the proceedings for laying out and opening Negley avenue as one of the streets of the city of Pittsburgh, were entirely regular and according to law in all respects. An ordinance by the select and common councils of the city was passed July ll, 1887, ordaining and enacting that Negley avenue be located by certain designated courses and distances and of a width of fifty-seven feet. Another ordinance was enacted December 27,1887, relocating the avenue for a portion of its distance, also by courses and distances expressed in the ordinance. On the 12th of March, 1888, an ordinance was enacted authorizing and directing the city engineer to survey and open Negley avenue from Bryant street, at a width of fifty-seven feet in accordance with the plan on file in the city engineer’s office, in pursuance of the ordinance of December 27, 1887. Thereupon viewers, appointed by the court of common pleas of Allegheny county, and authorized by the ordinance of March 12,1888, proceeded, after due notice to all parties interested, to assess the damages and benefits occasioned by the opening of the street, and made report of their proceedings in that regard, stating the damages they had ascertained to be suffered by property owners whose lands were taken, and the benefits conferred upon other landowners to whom the opening of the street was an advantage. This report was made on November 17, 1888, and was accompanied by a carefully prepared draft showing the location of Negley avenue from Bryant street to Butler street, with the names of the owners along the line and the boundaries of their several properties, and this draft or plan was duly read and approved in common council on November 26,1888, and in select council on December 10,1888. After this was done all the owners who were assessed for benefits, including Alexander King, the father of the present plaintiffs, paid into the city treasury the several amounts assessed against them, and the city thereupon paid to all the property owners who had sustained damages by the opening of the street the full amounts of the sums awarded to them respectively.

The defendant was duly authorized by its charter and by ordinance of the city councils to lay its pipes in and upon the streets of the city. When they were about to lay them they applied to the chief of the department of public works of the city of Pittsburgh, to receive instructions as to where they should lay their pipes in this part of the city. According to the undisputed testimony before the master, he directed that they should go through, and occupy Negley avenue for that purpose, assuring the defendant that the street was opened, and that they could occupy it for that purpose. In pursuance of this instruction they surveyed and located the line upon which to lay their pipes through this street, and did lay them accordingly. At that time no question was raised as to the legality of their action. The constitutionality of the law of June 14, 1887, P. L. 886, had not then been called in question. The pipes were laid in the fall of 1889 and it was not until January 22, 1891, that a proceeding in the courts was commenced to test the validity of the act of 1887. The report of the board of viewers was never questioned or contested by exceptions, appeal, or in any other manner. The fences crossing the line of the new street were not removed by the city authorities, and the street was not thrown open to travel at the time the defendant laid its pipes, but in all other respects the proceedings for laying out and opening the street were completed and had been so since December, 1888.

It is now objected against the legality of the action of the defendant in laying its pipes, that the city government had no power to proceed in the opening of this street, because the act of 1887 was unconstitutional in certain respects. However this contention might suffice to prevent the city from laying out and opening streets in the future, it does not follow by any means that it will suffice to overthrow such work previously done under color of the authority conferred by the act. If no question of the constitutional power of a city to do municipal work, such as the opening or grading and paving of streets, the construction of drains and sewers, the erection of municipal buildings, the introduction of gas and water works, arises until years have elapsed after such work is done, it could not be tolerated that because the power is ultimately held to have been in excess of the lawful authority of the city, that such streets must be closed and abandoned, or the sewers and drains destroyed, or the gas and water works closed, or the municipal buildings torn down. Such municipal works having been done under color of lawful authority, when no question as to the validity of the authority was raised, must be regarded as lawfully done. The opening of a street ordinarily is followed by the erection of buildings on both sides, by the laying of gas and water pipes, and the construction of sewers. If after all this has taken place, it is discovered, and judicially decided, that the law under which the municipal authorities have acted in the premises, is unconstitutional, surely it cannot be that all the improvements, works and buildings, carried on and constructed under apparent legal authority, must be abandoned or destroyed.

There is a veiy well established principle applicable to such cases, which holds valid the acts done by persons exercising official functions, by virtue of legislative authority, which is subsequently declared void. Thus in Clark v. The Commonwealth, 29 Pa. 129, where a person had been convicted of murder in the first degree, and had pleaded to the jurisdiction of the court that tried and sentenced him, that the presiding judge had not been lawfully elected under the provisions of the constitution, we held that the title of the judge to his office could not be called in question by a private suitor, but only by the commonwealth, that he was a judge de facto, and as against all parties but the commonwealth a judge de jure also. It was said by Mr. Justice Woodward, in delivering the opinion, that, “ the notion that the functions of a public officer, or of a corporation existing by authority of law, can be drawn in question (I do not mean as to the mode of their exercise, but as to their right of existence), except at the pleasure of the sovereign is a mistake that springs from the too prevalent misconception that it is the duty of everybody to attend to public affairs.”

In Campbell v. The Commonwealth, 96 Pa. 344, in an indictment for arson, a question was raised in this court as to the title of the two associate judges to their office under the constitution of 1874. The defendants were convicted and sentenced, and in this court they claimed that the oyer and terminer which sentenced them was not a legally constituted court, but we declined to entertain the question on the ground that the associates were judges de facto. Mr. Justice Mercur said: “ Under due forms of law they hold their offices by title regular on its face. They are performing the duties thereby imposed on them and enjoying the profits and emoluments thereof. Thus they are judges de facto, and as against all parties but the commonwealth are judges de jure. Having at least a colorable title to these offices their right thereto cannot be questioned in any other form than by a quo warranto at the suit of the commonwealth.”

In Keyser v. McKissan, 2 Rawle, 139, the action was brought by the commissioners of a county against the county treasurer and his sureties on the treasurer’s bond, and it was alleged in defence that the plaintiffs had never taken the oath of office required by law, and were therefore disqualified to act in their official capacity, or to maintain the action. Rogers, J., conceding that the oaths were never taken, said: “ The rule which governs the case is, that the commissioners who appointed the treasurer were officers de facto, since they came into their office by color of title. It is a well settled principle of law that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done: The People v. Collins, 7 Johns. Rep. 554; King v. Lisle, Andrews’ Rep. 163. And this rule has been adopted to prevent a failure of justice. . . . The reason given for the rule is most satisfactory. That the act of an officer de facto where it is for his own benefit is void, because he shall not take advantage of his want of title, which he must be cognizant of; but where it is for the benefit of strangers or the public who are presumed to be ignorant of such defect of title, it is good: Cro. Eliz. 699; King v. Lisle, Andrews’ Rep. 163; Hippsly v. Tucke, 2 Lev. 184.”

'In Riddle v. The County of Bedford, 7 S. & R. 386, this court said, Duncan, J.: “ There are many acts done by an officer de facto which are valid. They are good as to strangers, and all those persons who are not bound to look further than that the person is in the actual exercise of the office, without investigating his title.”

To the same effect are Kingsbury v. Ledyard, 2 W. & S. 41, and Gregg Township v. Jamison, 55 Pa. 468.

Applying these principles to the present case it will be seen that the proceedings for the extension and opening of Negley avenue were conducted in a regular and orderly manner, by the select and common councils of the city of Pittsburgh, who were officials in the actual exercise of their functions. One of the instrumentalities employed was the board of viewers, who were also the properly constituted officers for that purpose, according to the law supposed to be applicable to the case. These several officials acting in their official capacity carried through to completion all the proceedings necessary to the extension and opening of the avenue for public use. The councils in their official capacity gave consent to the occupancy of the avenue by the defendant for the purpose of laying their pipes. The chief of the department of public works, the proper officer for that purpose, not only gave consent, but gave directions to the defendant, to occupy Negley avenue in laying its pipes. All of these officials held their offices and exercised their functions so far as the proceedings in regard to the extension and opening of Negley avenue were concerned, in strict conformity with the law' as it was written. With those proceedings the defendant had nothing to do, but, acting in perfectly good faith, so far as appears upon this record, did the acts complained of in the plaintiffs’ bill in the matter of laying their pipes. In our opinion it is not practicable to hold that their acts in the premises were entirely illegal and void. They were not responsible for the law as it stood, nor were they responsible for errors or defects, if there were any, in the exercise of the official functions of the several city officials. They had a right to assume that the officials whose action was involved were legally constituted officials, with full power to do just what they did do, with regard to the subject of the present contention.

Nor, even if there were some defects in the manner in which the pipes were laid, would those defects suffice to invalidate the entire action of the defendant in laying their pipes. The defendant can easily be compelled to relay any portions of its pipes which are defectively laid. We do not consider that any question of estoppel arises against the plaintiff by reason of the payment by him of the assessed benefits. We decide the case upon the ground that there was a compliance with the existing law in the laying of the pipes, and that the defendant is not responsible for the law of 1887, or for its want of conformity to the constitution. Acting within the limits of that law and by the sanction of the properly constituted officials, who were officers de facto in the exercise of their official functions, they are protected from an allegation of illegality in their action.

Decree reversed and bill dismissed at the costs of the plaintiffs.