Clothier v. Philadelphia

22 Pa. Super. 608, 1903 Pa. Super. LEXIS 276

• Court: Superior Court of Pennsylvania
• Decided: May 4, 1903
• Docket: Appeal, No. 188
• Status: Published

Opinion

Opinion by

W. D. Porter, J.,

The only shadow of authority for the grant, by an executive officer of the city of Philadelphia, of a special license to a private individual, not an owner of abutting property, to erect a reviewing stand or other building in a public street is to be found in the ordinance of October 17,1898, the material provisions of which are as follows: “ That hereafter any person or persons, firms or corporations, who desire to erect any stand for the purpose of reviewing any parade, procession or festivity of any kind whatsoever, shall first obtain permission so to do from the director of the department of public safety. Upon said permission being granted to the said person or persons, firms or corporations, they shall make application to the bureau of building inspection of the department of public safety for permit to erect the said stand, the fee for the inspection of which shall be two (2) dollars for a stand of superficial area of five hundred (500) feet or less, and the further sum of one (1) dollar for each additional five hundred (500) feet or fraction thereof, superficial area. All such stands must be erected in conformity with the conditions and regulations established by the said bureau of building inspection.” No officer of the city, nor clerk in any of the departments thereof has general authority to issue permits for erections of this character in the public highways; persons who attempt to found a right upon this ordinance must bring themselves within its terms. The plaintiffs being desirous of erecting a reviewing stand on the occasion of the demonstration to celebrate the close of the Spanish war applied for permission to do so, not to the director of the department of public safety but to the engineer in charge of the bureau of building inspection. The engineer approved of the application and thereupon a clerk in the office of that bureau issued to plaintiffs a permit to erect the stand. Plaintiffs thereupon proceeded to erect a stand within the lines of Mt. Vernon street, a public highway of the city. When the work Avas almost completed the director of the department of public safety served written notice upon the plaintiffs that the permit had been issued by inadvertence, that it was withdrawn and revoked, and that they would not be permitted to proceed with the construction. The work was thereupon abandoned and the plaintiffs brought this action to recover the amount of the fee paid for the permit and the damages suffered because of the grant and subsequent revocation thereof, being the amount of money expended in the construction of the stand. It is not in this case necessary to inquire into the power of councils to grant by ordinance to a private individual, not an owner of abutting property, a special license to erect a structure of this character within the lines of a public street, or to delegate to an executive officer authority to grant such a license. The existence of such a power is at least questionable: Commonwealth v. Harris, 10 W. N. C. 10; Reimer’s Appeal, 100 Pa. 182; Betham v. Philadelphia, 196 Pa. 302; but even if this ordinance was valid the plaintiffs had not taken the steps necessary to acquire any rights thereunder. The discretion to determine where and by whom reviewing stands might be erected was, by the ordinance, vested in the director of the department of public safety. The provisions of the ordinance manifestly contemplated that the application should first pass the personal scrutiny of the director before the subordinates of the department could exercise any authority whatever. The ordinance imposed upon the director the duty of determining the places in which and persons by whom stands might be erected. The discharge of this duty required the exercise of the personal judgment of the director. A duty of this character, requiring the exercise of the discretion of a particular officer, cannot be delegated to a subordinate. This ordinance required the applicant to first obtain the permission of the director of the department of public safety to erect any stand at a particular location, it was only after that permission had been granted that the bureau of building inspection had any authority to receive an application. When the director of the department considered it safe and proper to erect a stand at a particular location, he granted the permission. He passed upon the question of the propriety of permitting the obstruction in the street. After the permission of the director had been obtained, a second application must be made to the bureau of building inspection. The duty of the officers of that bureau was simply to' see that the stand was properly constructed and safe; the charge for the permit was simply to cover the cost of inspection. The plaintiffs never obtained the permission of the director of the department of public safety; that officer had never exercised his judgment as to whether a stand erected upon that particular location would unduly interfere with the rights of the public in the street, or create inconvenience and disorder. The bureau of building inspection was without authority to issue a permit and the plaintiffs never acquired any rights under the ordinance. The learned judge of the court below permitted a recovery for the amount paid for the permit.

The judgment is affirmed.