M'Dermond v. Kennedy

1 Brightly 332

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1839
• Status: Published

Opinion

Reed, President,

charged the jury as follows: — The word borough refers only to corporate rights. The corporation can only act in reference to corporate rights and duties. The officers have no power over private property, except for corporate purposes.

Making a rail-road, not within the limits of the borough, cannot touch or affect corporate rights. It may directly or indirectly affect private rights, but the regulation of private rights is not vested in the borough. How could the borough be benefited or injured by the rail-road ? It is not a borough subject. It does not touch the borough. It affects no borough rights. The rights alleged to be affected are private rights, never to be intrusted to the management of the corporate functionaries.

The corporation has personal identity to the extent, or for the purposes indicated in the charter, for borough purposes and none else. Borough rights, corporate rights, are distinct from mere private rights of property. If this right is maintained in the borough of Newville, then the inhabitants of Newville have given over “ the inalienable right of acquiring, possessing and protecting property;’ for, if the council can raise a tax and grant the avails to the rail-road, because they believe it to be to the advantage of the borough, then they may do any thing else which they may deem advantageous, any thing else, for there is no connexion, no relation, between the rail-road and the borough.

The officers of the borough are for the borough, for managing the affairs of the borough. By the third section of the act of incorporation, the general purpose of the act is exhibited; they all refer to the borough, to the corporation; the enumeration of the powers in the sixth section also refers to borough purposes, corporate rights, rights which they are to enjoy as an association; the private rights, and private rights of inhabitants distinct from corporate rights, are not embraced. The increase or decrease of the value of a man’s house and lot, is not an incident of a corporate, but a private right. Things relating to social convenience and safety, are only embraced in the corporate powers.

Though manufacturing silk, establishing forges and furnaces, constructing a bridge over the Connodoguinet or the Schuylkill, or a turnpike over the north mountain, by the burnt cabins, or any thing else — though any of these should be a direct benefit to the inhabitants of Newville, undisputed, it cannot be that a tax may be raised and appropriated at the mere will of the town council, if not exceeding five mills in the dollar.

If they can appropriate money to a road half a mile from the borough, they may do so at a distance of fifty or one hundred miles.

We conclude, that no tax can be laid for any other than borough purposes, and that the construction of this railroad was not one. It had nothing to do with the borough —had no connexion with it, had no reference to it, either directly or indirectly.

We think there pan be no difficulty as to the fact of a tax having been laid mainly for paying this money to the rail-road. The minutes of the board exhibit the whole proceeding, and the accounts of the treasurer show the appropriation.' The appropriation to the rail-road was set forth in the minutes, and the ordinance passed for raising a tax; it was raised, and of the three hundred dollars raised in one year, two hundred and seventy-three dollars, or thereabouts, of it was paid to the rail-road company, in accordance with the ordinance of the town council. If these are the facts, in law, the plaintiff would be entitled to recover. “Whether a recovery can be had against the collector or not, the plaintiffs cannot, do not, insist, as there are others against whom they allege the action must be sustained. It is stated, too, on the notes by consent, that the main object of the action is to try the right. The mere amount paid by the plaintiff is only asked as damages. The whole is two dollars and ten cents.

The learned judge then proceeded to read and answer the points of the defendants, as follows:

The first point was answered affirmatively, with this qualification; that if the laying of the tax was illegal, for an illegal purpose, on the principles stated in the general charge, and the other defendants are liable on the principles we have stated, as we think they are, and on the issues and the form in which the trial has been had, we think that the collector, M‘Dermond, may be liable in law as well as the other defendants. If he had designed to justify under a warrant or authority from the other defendants, he should have so pleaded; but he has mixed his fate with theirs, by pleading only the general issue, and going on to trial with them. The second and third points were answered affirmatively, it being said, however, that “ when the tax is illegal, for an illegal purpose, they may resist, and if their property be forcibly taken and sold, an action of trespass will lie for the damages.”

The jury, under the direction of the court, found a verdict for the plaintiff.

The case was taken to the supreme court, on error, and having been argued by Mr. F. Watts, for the plaintiffs in error, and by Mr. Biddle and Mr. Williamson, for the defendant in error, the judgment was affirmed.

*

The result of the publication of the foregoing case was the passage of the act of the 37th March, 1848, whereby the subscription of the city of Philadelphia to the Pennsylvania rail-road company was legalized, and the county of Allegheny, the cities of Pittsburgh and Allegheny, and the municipal corporations of the county of Philadelphia, were empowered to subscribe for shares of the capital stock of the same company, and to borrow money for that purpose. And the further to facilitate such subscriptions, the act of the 15th May, 1850, authorized a majority of the several boards of commissioners of the districts referred to in the prior act, to make such subscriptions; — the charters of some of the corporations requiring a vote of two-thirds for such an object.