Daughters of the American Revolution v. Schenley

54 A. 366, 204 Pa. 572, 1903 Pa. LEXIS 852

Opinion

Opinion by

Mb. Justice Dean,

Mary E. Schenley of London, England, is the owner of many pieces of land in and about the city of Pittsburg. One of these is what is known as the “Point property” being about nine and one half acres, at the junction of the Allegheny and Monongahela Rivers. It is bounded on the east by Third street, and on the north, west and south, by Duquesne Way and Penn avenue. On a part of this nine and one half acres, is what is known as the “ Block House,” an outpost of old Fort Pitt; the fort itself has long since disappeared; the block house is twenty by thirty feet and about twenty-five feet in height. Mrs. Schenley, by deed dated March 15, 1894, conveyed the block house with the tract of land one hundred feet by ninety, on which it stood, to the Daughters of the American Revolution a patriotic corporation, for the nominal consideration of $1.00, stipulating, however, that if used for any other purpose than that of maintaining and preserving the “ Block House ” it should revert to the grantor and her heirs ; and further, the grantor reserved the right to represent the property in all proceedings looking to the vacation of Fort or First street and Point alley. The significance and value of this reservation is indicated by a mere glance at the plot of the nine and one half acres; the one hundred by ninety feet plot about the middle of which stands the old “ Block House ” with twenty-five feet of clear space on every side of it; at its length one hundred feet, it extends a few feet over on to First street and slightly over on to Point alley on the other side; all the other part of the nine and one half acres is around and about it and is the property of Mrs. Schenley. Of course, for the improvement of her other property by the opening or vacation of streets and alleys it is of the highest importance, that she should have an influential voice. If the donee of the small “ Block House ” piece of land had the right of a landowner to obstruct public improvements in that locality, all her other land might be made less valuable. This was the situation in the fall of 1901, at which time Mrs. Schenley sought to improve the “ Point ” property, and to that end, desired the vacation of certain streets and alleys, so that the property would be eligible for the kind of improvements she contemplated ; thereupon petitions were presented to city councils to pass ordinances vacating two streets and two alleys running through the property, among them First street or Fort street and Point alley. These petitions were signed by Mrs. Schenley, by her attorney in fact, John W. Herron, also by Frank Nicola, who had an agreement with Mrs. Schenley to purchase part of the land. The petitions, on their face, thus represented the owners of every foot of property abutting on the streets to be vacated, that is, assuming that Mrs. Schenley, under the reservation in her deed to plaintiff, had authority to represent it in such proceedings. Ordinances vacating the streets were duly passed by councils, signed and approved by the city recorder as required by law. The Daughters of the Revolution thereupon presented a petition to the court of common pleas, praying the court to quash the ordinances vacating Fort street and Point alley on the ground that John W. Herron had no authority from Mrs. Schenley to sign for her the petitions to vacate, and that leaving her out as an owner of abutting property, the petition was not signed by a majority of the property owners in interest and number abutting on said streets. The court ordered notice to be served upon all of defendants to appear; all did appear by counsel and denied the averment, of fact in the petition and further denied the jurisdiction of the court to entertain the appeal. The court, on hearing, found as a fact, that Mr. Herron had no authority from Mrs. Schenley to sign the petition, and further affirmed its jurisdiction to entertain the appeal, and thereupon entered this decree; “ It appearing to the court, therefore, that the ordinauce in question was not petitioned for by the requisite majority in interest and number of the owners of property abutting on the line of the proposed improvements, the ordinance founded thereon is quashed.”

Leaving out of view for the present, the question of jurisdiction, it is palpable, as concerns substantial merit, that the decree is founded on the baldest technicality. In the deed of Mrs. Schenley to the Daughters of the Revolution of the 190 feet and the “ Block House ” after expressing the nature of the gift, as one for patriotic and historical purposes and her desire to aid and assist the Daughters of the Revolution in carrying out their patriotic purpose, she expressly stipulates as follows : “ Subject to the right of the party of the first part (Mrs. Schenley) to represent said above described real estate in all proceedings looking to the opening of O’Hara alley, the purpose of the party of the first part being to retain, reserve and not part with the right to petition the city of Pittsburg in behalf of said real estate to open O'Hara avenue and to vacate said Fort street and Point alley, and she hereby reserves the said right to herself, her heirs, executors and administrators, without liability, however, for any assessment of benefits on said real estate by reason of said opening or vacation.” This deed is made part of the petition to quash and therefore part of the record in the court below, as is also Mrs. Schenley’s power of attorney to Mr. Herron, in which is this clause, “ the said John W. Plerron is also hereby authorized and empowered to lay out lots, in such form and fronting on such streets, lanes and alleys or areas as in his judgment may be advisable.” This is the only written authority he had at the time he joined in the petition to vacate. It was evidently a right to establish streets and alleys on the land. Afterwards, however, Mrs. Schenley expressly and formally ratified his authority to sign the petition. We think it clear, that under the reservation in the deed, the appellee had no standing to question the authority of Mrs. Schenley’s representative ; she could then and could now question it if she chose; the city legislature, before acting, might have demanded an exhibition of the authority, but the Daughters of the Revolution by acceptance of the deed with the reservation have no such interest as authorizes them to represent either Mrs. Schenley or the city, in questioning the agent’s authority. The court below decides that the power of attorney to Mr. Herron was not so explicit as to cover the act of signing the petition to vacate, and although she swears in her deposition, “ he had full authority from me to sign in my name the petitions,” yet on its own interpretation of the written power, narrows it so as to exclude any such authority, not heeding the rule, that in case of even doubtful and ambiguous writings, the interpretation put upon them by the parties to them, will be adopted by the courts. The court concedes that subsequent to the action of councils on the petition, Mrs. Schenley expressly ratified her agent’s act, but this the judge argues was too late because the validity of a public ordinance cannot be made to depend upon the subsequent action of a private person. This reasoning confounds her ratification of the act of her agent in representing her on the petition with a ratification of the ordinance; to the validity of this last her ratification was not necessary; it was a perfectly valid ordinance without her consent; she only ratified the act of her agent, and her ratification of his act in signing the petition, even if he had no authority when he signed, was fully equivalent to precedent authority. “ The adoption of a contract made on our behalf by someone we did not authorize is a ratification and relates back to the execution of the contract:” Hare on Contracts, 272.

If the unauthorized act involved a crime or was a transaction opposed to public policy, it could not be ratified at all. In discussing this point on which the decree of the court below is solely based, we do not overlook the fact that this appeal is in substance a writ of certiorari, and that on review we cannot go outside the record. But here as part of the petition and record are brought up, the deed, the power of, attorney and the averment that Mrs. Schenley did not sign the petition to councils, which petition is part of the record. The learned judge in substance, finds as a fact that Mrs. Schenley did sign the petition, though by his interpretation of the law his conclusion is that she did not. His decree is not in accordance with the facts of record but in the teeth of them. We would not go outside the record to ascertain if his finding of fact be correct ; we take the fact as he finds it and say his conclusion was not warranted by the law. And this we have jurisdiction to do under the law as announced in the Diamond Street case, 196 Pa. 254, and the authorities there cited.

But we do not care to rest the decision on this ground alone'; appellant raises another question which is broader, and may rule other cases which will naturally arise under the act of May 16, 1891, the act under which the petitions were framed and on which councils acted. As we said in the Diamond Street case, where the statute does give the right of appeal, “ The jurisdiction of the court below was purely statutory. The legislature might have conferred on councils the right to widen the street without being first petitioned to do so by a majority in interest and number of property owners ; it might have stopped just there, but it went further and not only made the petition a condition precedent but gave a right of appeal to the common pleas within sixty days by anyone interested. The statute, however, gave no further remedy to the discontented property owner.” It is argued, by appellants in support of their first assignment of error that while the act authorizes an appeal to the courts from, the action of councils in enacting ordinances for opening, widening and improving streets, it is silent as to ordinances vacating streets, and, therefore, the court below was without jurisdiction on this appeal because none was given by the statute. In statutory proceedings it has been ruled in very many cases that there can be no appeals to the courts from the action of municipal legislatures except such as are allowed by statute. Section 10 of the act of 1891 expressly gives the right of appeal to abutting owners from ordinances “ opening, widening, straightening, extending, grading, paving, macadamizing or otherwise improving any street or alley.” Not a word is said about an appeal from ordinances vacating streets. It is argued by appellee’s counsel that the words “ otherwise improving ” would embrace the vacating of a street. They do not convey that meaning to our minds, and were doubtless inserted to meet the ever growing new methods- of paving, some of those then well known being-enumerated ; if the act were to be passed to-day, it is probable asphalting would have been named; the word “vacating” could as easily have been inserted as the words opening, widening, etc., altogether eight words, but it was not. “Vacating ” is not suggestive of improvement, but of abandoning, abolishing or destroying. We do not think the words “otherwise improving ” within any reasonable interpretation give the right of appeal for vacating. The act contains twelve sections, and is very comprehensive. It expressly gives the right of appeal only in the110th section, and as we think intentionally, omits giving it there from ordinances vacating streets.

The legislature was doubtless aware of the law as it then stood with reference to this" particular exercise of municipal power. The right of appeal on assessment of damages for private property taken for public use by municipal and other corporations and the right to a trial by jury to either party according to the course of the common law are guaranteed by the 8th section of the 16th article of the constitution. But whether in any given case private property has been taken, and the use to which' it is sought to appropriate it is a public one, are necessarily judicial questions to be determined by the courts ; and this is the declared law in all the states and in the United States courts. The facts here do not, as we have more than once decided, bring the case under the section of the constitution referred to.

In Paul v. Carver, 24 Pa. 207, this court decided, that the legislature had the power to vacate a public street without the consent of the abutting owners; that such an act was in no sense of the word a taking of private property for public use, but was nothing more than a surrender of the public right of way to the owners of the soil. In McGee’s Appeal, 114 Pa. 470, it was held that the power of the legislature to vacate streets and to invest municipal corporations with the same power was not restricted by the constitution. The same was held in Wetherill v. Penna. R. R. Co., 195 Pa. 156. In this last case Justice Mitchell in rendering the opinion of the court says : “ But vacating a street takes no property from anyone. It merely restores to abutting owners their portion of the land freed from the servitude of the public way. There is no constitutional right to damages, even on the ground of injury under the present constitution.”

As under the law thus established the abutting owner could not be damaged in his property by the vacation of a street or highway, he had no tangible interest which gave him a right of complaint; a sentimental interest or artistic taste might be shocked by the closing up of an ancient street or highway, but this affected no property right and the complainant was not given the rights of an appellant. The legislature by the act of 1891 adopted no new rule when it did not confer the right of appeal for vacation of a street on the abutting owner; it merely accepted the law as it stood; he was not damaged and therefore had nothing to appeal from. We think the court had no jurisdiction to entertain the petition, and even if it had on the record, the decree was erroneous ; therefore the decree of the court below in Nos. 136 and 137, October term, 1902, are both reversed and the petitions to the court of common pleas to quash ordinances vacating Fort street and Point alley are botli dismissed.