Mahon v. Luzerne County
46 A. 894
Pa.
1900
Check Treatment

Opinion by

Mb. Justice Mitchell,

The very interesting question suggested by the opinion of the learned judge below, whether even the legislature can divert public property dedicated to a specific public use to another and wholly different use, though also public, is not necessarily presented in this case. The title to spaces left open by the original plans of towns or by subsequent general dedication for similar purposes is in the commonwealth for the benefit of the *17whole public, and the uniform course of decision has been that central squares in the laying out of towns were meant as much, perhaps primarily more, for public buildings than to secure space, and therefore the commonwealth may authorize their occupation in that manner without altering their original use.

When our forefathers were gathering here and there into little centers of population and business, they paid small attention to what is now known and valued as breathing space. That was all around them in the neighboring wilderness, and what they sought was concentration for mutual protection and convenience. It was said by Justice Rogers in Rung v. Shoneberger, 2 Watts, 23, that “in this state there are low ancient towns in which squares such as this do not form part of the plan. They are generally located at the intersection of the streets; and are intended as sites for the erection of buildings for the use of the public; such as courthouses, market houses, school houses and churches; sometimes they are designed as ornaments ; and at others they are intended for the promotion of the health of the inhabitants by admitting a free circulation of air.” See also Com. v. Bowman, 3 Pa. 202, Com. v. Rush, 14 Pa. 186, and Com. v. Beaver Borough, 171 Pa. 542. These cases are ample authority for holding that the occupation of a public square of the kind referred to by a public building is part of, or at least germane to, the use for which it was originally dedicated. We are, therefore, unable to agree with the learned court below that the proposed occupation of the square by a new courthouse is such an enlargement of an easement to the county of Luzerne as can only be authorized by a further specific grant from the commonwealth.

It must therefore be accepted as settled by the decision in Mahon v. Norton, 175 Pa. 279, that the county commissioners of Luzerne county when authorized by the proper proceedings of the grand jury and the court “ have the right to erect and maintain on the public square in the city of Wilkes-Barre upon the location of the present courthouse, a new and enlarged courthouse of sufficient size to accommodate the business of the county.”

This brings us to the consideration of the authority of the county commissioners as shown in the present case.

By the Act of April 15, 1834, P. L. 539, sec. 10, “ It shall be *18lawful for the commissioners of any county having first obtained the approbation of two successive grand juries, and of the court of quarter sessions of such county, to cause to be erected at the seat of justice thereof when occasion shall require, such building or buildings as may be necessary for the accommodation of the courts and of the several officers in the county, and for the reception and safekeeping of the records and other papers, in charge of such officers, and also such other building or buildings, as may be necessary and proper for the purposes of a county jail and workhouse, and if need be to purchase ground for the erection of such buildings.” By this act the determination of when “ occasion shall require ” the buildings, was vested in the two successive grand juries and the court of quarter sessions, and their approval was complete authority to the commissioners to proceed: App. of Comrs. of Northampton County, 57 Pa. 452. Whether it was mandatory on them has not been decided by this court, but an elaborate opinion in the affirmative was given by the common pleas of Beaver county in Com. v. Marshall, 3 W. N. C. 182. But whether mandatory or not, the occasion having been determined to exist, the mode of meeting it, the size, style, arrangement, cost and location of the building were left to the discretion of the commissioners.

But by the Act of April 19, 1895, P. L. 38, “ whenever the commissioners of any county are authorized and required to erect a courthouse, jail, or other county buildings, they shall submit the plans and specifications adopted by them to the judges of the court of common pleas of the proper county for their approval, and when it is obtained they shall let the work by contract .... which contract or contracts shall be made subject to the approval of the said judges.” By this act the control of the commissioners over the details of the execution of the projected improvement, theretofore without other limitation than the common-law remedies against abuse of discretion, was made subject to the supervision and approval of the court. The act names only the plans and specifications and the contracts as requiring submission, but these necessarily involve the size, arrangement, cost, location and other details as well, for no intelligent exercise of the power of approval is possible without .a .conside.ra.tiop of all these elements. The most desirable size *19or arrangement may be rendered undesirable by its undue cost or by its want of adaptability to the most desirable location. The statute puts on the court the duty of .approval or disapproval of the projected building, and in so doing its plain intent is to give the court the final authority over all the essential elements of the completed undertaking.

The occasion for a new courthouse in Luzerne county appeal’s to have been determined in accordance with the act of 1834 by the action of two successive grand juries approved by the court of quarter sessions. And the plan adopted by the commissioners has also been submitted to and approved by the court of common pleas but apparently not in the manner required by the act of 1895. The very important element of location, unfortunately the one most in controversy, was not included in the submission to the court. I find in the notes of testimony that when the proceedings in the court of common pleas, No. 698, May term, 1899, were offered in evidence in the present suit they were objected to by the appellee as irrelevant and immaterial, but were admitted by the court, “ the effect to be passed on later,” with the further remark of counsel for appellee that at the time of the approval of the plans the question of location was not before the court directly or inferential^. And it was said at the argument here, without challenge, that the court below had not approved the plan with reference to the location, and would not do so. Under these circumstances it is clear that the commissioners have not yet obtained the complete authority to proceed, required by the act of 1895.

It is not necessary in the present status of the case to consider the other grounds on which the -injunction was awarded, the unnecessary size and expense of the proposed building, and the unnecessary danger to which the county records would be subjected. Even under the act of 1834 the discretion of the commissioners was within the supervision of the court so far as to prevent its abuse. If the judges should hereafter under the act of 1895 approve the plan, size, etc., with reference to a particular location, the question might afterwards arise whether the same judges sitting as a court in a case brought regularly before them, might reach a different decision. It was held in Comrs. of Northampton’s Appeal, 57 Pa. 452, that the court could not of its own motion withdraw its approval and enter a *20new order suspending further proceedings. But that decision may be readily sustained on the general principle that a court cannot of its own motion reverse its judgment and enter a new one after the term. Interest reipublicae ut sit finis litium. But that is a different thing from reopening a decision or considering the subject-matter again on the motion of a party interested who has never had a day in court. The approval of a plan by the judges under the act of 1895 though done virtute officii is not strictly a judgment on lis mota between competent parties. It is beyond doubt that notwithstanding such approval the court would be bound to entertain a taxpayer’s bill to show that the proposed building would involve an increase of the municipal debt beyond its constitutional limit, and perhaps on other grounds. These questions we leave to be considered when they necessarily arise. For the present we merely hold that the injunction must be sustained for want of complete authority in the commissioners to proceed.

It is greatly to be desired that an amicable agreement should be reached, which Avould terminate the controversy that blocks the accomplishment of what seems to be a conceded need. There is very great force in the remarks of the learned president judge of the court below that the noisy and bustling business center of the town is not intrinsically the best place for the courthouse, and in these days when the enlightened sentiment is everywhere growing that the serried ranks of buildings separated only by party walls and narrow streets should be broken by open spaces for light and health and enjoyment, it is strange indeed to find the most picturesquely beautiful city in the commonwealth tolerating the idea of closing up still further its central breathing spot. But these are matters which its own citizens must settle. They are far more interested than any outsiders, though the latter like other onlookers may sometimes see the points of the game more clearly than the players.

Decree affirmed with costs.