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H. J. WILLIAMS, ) ^ .-,

ELI K. PRICE. ' \ Mr Pet^t^oners.

February 20, 1834.



89 SUPREME COURT [Dec. Term,

(Spring Garden . The Northern Liberties.)

The following rejoinder was filed:

The rejoinder of the commissioners and inhabitants of the in-
corporated district t>f the Northern Liberties to the replication of
the commissioners, &c. of Spring Garden, and the supervisors of
the unincorporated township of the Northern Liberties respect-
fully sheweth:

That the rejoinants do entirely and absolutely deny all the
statements and allegations contained in the said replication, which
are inconsistent with or contradictory to any part of the answer
heretofore made by the rejoinants to the petition in this case, and
the rejoinahts do hereby re-affirm and aver to be true all the facts
set forth in their said answer.

And for rejoinder to the several new but irrelevant matters in
the said replication, or so much thereof as they are -ad vised it is
material for them to rejoin to, the rejoinants say,

1st. That the rejoinants have never at any time admitted or agreed
that before the said act of 1819, the said landings and the funds
derived therefrom were held by the county commissioners in trust for
the inhabitants of the township of the Northern Liberties, nor that
since the said act of 1819, they, the said rejoinants so held them.

2d. That the landing fund in the hands of the county commis-
sioners in 1819, was paid over by them to the rejoinants in pur-
suance of the provisions of the act of 1819, before mentioned,
and that such payment was authorized by that act.
F*401 *^' ^ e re ji nan t s deny that the incorporated district
* of 'the Northern Liberties has ever ceased (for any of the
purposes material in this case) to be a part of the township of the
Northern Liberties.

4th. The rejoinants aver that all the landings at the ends of
streets, within the limits of the district of Spring Garden and
Kensington, are vested in the respective corporations of those
districts, and that they all became so vested without expense to
either of the said corporations.

5th. The rejoinants deny that all the landings at the ends of
the streets, within their corporate limits, have been purchased out
of the binding fund in question ; they have never misapplied or
misappropriated that fund, or any part of it, nor in any respect,
violated the laws of the land, under the sanction of which they
hold the same, and the landings from which it has arisen, as set
forth in the act of 1819, before mentioned.

Wherefore, your rejoinants aver and will prove that the said
replication is uncertain, untrue and insufficient, and again humbly
pray this honourable court, as in their answer they have hereto-
fore already prayed. WM. M. MEREDITH,

CHARLES NAYLOR,
For the Incorporated District of N. Liberties.

February 20, 1834.



1835.] OF PENNSYLVANIA. 40

(Spring Garden v. The Northern Liberties.)

The questions arising upon these pleadings were argued at con-
siderable length, by Mr. Miles, Mr. Price, Mr. J. M. Reed and
Mr. Williams, for the several petitioners, and by Mr. Goodman
and Mr. W. M. Meredith, (with whom was Mr. Naylor^) for
the defendants.

For the petitioners, it was contended that upon the true con-
struction of the several acts of assembly relating to the township
of the Northern Liberties, which were cited and commented upon, (
the district and townships which once formed part of the old town-
ships of the Northern Liberties, though now divided for municipal
purposes, were equally entitled, with the incorporated district, to
the profits of the landing places. The legislature never could
have intended that this large fund should be devoted exclusively
to the comparatively small space occupied by the defendants,
while the remaining fronts on the Delaware, and the whole front
on the Schuylkill were unprovided for. It was clearly the in-
tention that tolls should be taken at the respective wharves, and
applied to the use of some part or whole of the township. Now,
in 1768, the legislature sat in Philadelphia; and the framers
of the act knew that the wharves in the city were rented by the
corporation, and the rents and profits applied to the ease of the
taxes throughout the city. Such was the intention with respect
to the township. Spring Garden *and Kensington have r*,<i-i
both landing places, one on the Delaware, and the other on L
the Schuylkill, to pay for which they are entitled to share in this
fund. If the words of the acts are to be taken literally, the un-
incorporated part of the township of th'e Northern Liberties
would be entitled to the whole. This was the case of a divided
township, but the principle in respect to the common property is
the same as in the case of the division of an empire ; and there
it is well settled that existing rights are not forfeited. 2 Ruth-
erford's Inst., b. 2, c. 10, s. 15 : Grotius, b. 2, c. 9, s. 9 ; Pufien-
dorf, b. 8, c. 12, s. 5 ; Domat, b. 1, tit. 15, s. 8 ; Vattel, b. 1, c.
20, s. 246 ; 3 Kent's Com. 245 ; 9 Cranch, 52 ; 4 Wheaton, 94,
95. The trust, therefore, was intended, for the benefit of all the
inhabitants of the old township ; and there is nothing in the act
of 1819 to lead to the conclusion that the legislature intended
to alter it. But even if they so intended, this court cannot admit
the validity of an act which would divert the fund from its original
and proper objects. To this point were cited TJie Dartmouth
College Case (4 Wheat. 518, 629, 663) ; Turret v. Taylor, (9
Cranch, 50, 332) ; Commonwealth v. Jarret, (7 Serg. & R. 460) ;
Whitman v. Lex, (17 Serg. & Rawle. 88) ; Estep v. Hinchman,
(14 Serg. & R. 457). The following authorities were also re-
ferred to in the course of the argument ; Clifford v. Belsterling,



41 SUPREME COURT. [Dec. Term,

(Spring Garden t>. The Northern Liberties.)

(2 Serg. & R. 108) ; Angel on Corporations, 503; 3 Penn. Rep.
384; 17 Serg. & R. 404; 1 Vernon, 42,55; 2 Vernon 431;
Com. Dig. Chancery, 4 W. 13; 1 Roper, 92; Livingston v.
Moore, (7 Peter's Rep. 546) ; Case of Carnal a Road, (1 P. A.
Browne, 164) ; 2 Madd. Chan. 125 ; M'Girr v. Aaron, (1 Penn.
Rep. 49); Hampshire v. Franklin, (16 Mass. Rep. 83); 2
Kent's Com. 223; 2 Atkyns, 87.

For the defendants, it was argued,

1. That the money raised by the act of 1768, was public money,
and as such, absolutely subject to the control of the legislature.

2. That the landings originally purchased by the county com-
missioners, were expressly in trust for the public generally, and not
for the inhabitants of any particular part of the commonwealth.

3. That the landing subsequently purchased by the county
commissioners out of the proceeds of the same fund, was, in like
manner, held by them in trust for the public.

4. That none of the acts of Assembly passed between 1768
and 1819, made any change in this respect.

5. That by the act of 1819, the landings were vested in the
commissioners of the Northern Liberties, and that the legislature
had the right of so vesting them.

6. That the commissioners of the Northern Liberties held the
landing, under the act of 1819, in trust for the public at large,
so far as that all the inhabitants of the commonwealth were
authorized to use the landings, paying the regular tolls for such
r+4n~\ use ; that *the commissioners of the Northern Liberties

' had, under the act of 1819, the right to receive the in-
come and manage the renting, &c., of the landings. The direc-
tion as to the manner of investing the surplus income, was a mere
legislative direction, and created no trust for any body.

7. The complainants (nor any other part of the territory of
the old Northern Liberties, not included in the incorporated dis-
trict of the Northern Liberties) never were cestui que trusts of
these landings. There never was any express trust declared for
them. The landings were not bought with their money, and
there was, therefore, no resulting trust for them. There was no
trust by implication, for their benefit. They are absolutely with-
out the shadow of a right. As to the township of Penn, and dis-
trict of Spring Garden, they are not even included within the
bounds of the territory, within which, by the act of 1819, the
commissioners of the Northern Liberties were directed to expend
the surplus income. In 1819, Penn and Spring Garden were
not within the township of the Northern Liberties.

The legislature have always been in the habit, in erecting
municipal corporations, of vesting in such corporations the public



1835.] OF PENNSYLVANIA. 42

(Spring Garden v. The Northern Liberties.)

landings within their bounds. They gave to Spring Garden the
valuable public landing at the foot of Coates street. They gave
to Kensington the public landings at the ends of streets within
that district. The Legislature have done no more than this, in
favour of the incorporated district of the Northern Liberties, and
why should they have done less ?

The defendants' counsel cited the following cases : Ehrenzeller
v. Union Canal Company, (1 Rawle, 181) ; Kissler v. Kissler,
(2 Watts, 323); Barterv. The Commonwealth, (3Penn.Rep. 259);
Easton ttoad Case, (3 Rawle, 195); Irvine v. The Turnpike Com-
pany, (2 Penn. Rep. 470); Runyv. Schoenberyer, (2 Watts, 23).

The opinion of the court was delivered by

KENNEDY, J. The proceeding has been instituted in this case,
under a special act of the legislature, passed the 12th of April,
1828, for the purpose of having it enquired into and determined
by this court, whether or not the complainants have a right
to any part or portion of the value or income of the public wharf or
landing place, called the hay scale landing, and the public wharf
or landing on the south of and adjoining Callowhill street, which
lie within the incorporated district of the Northern Liberties, and
are held in trust by the board of commissioners thereof. That
the legal title to these wharves and landing places was vested,
and still continues to be so, in the board of commissioners of the
incorporated district of the Northern Liberties by the thirty-sixth
section of an act of assembly, passed the 16th of March, 1819, is
admitted ; * but the great question raised is, for whose (-#40 -i
use was it so invested ? The complainants contend that *-
it was for the use and benefit of all those who were inhabitants
' within the geographical limits of what was called and known by
the name of the Northern Liberties in 1768, or the township of
the Northern Liberties in 1796, or should at any time become
such, after the .first of these dates. The commissioners of the
incorporated district of the Northern Liberties allege, on the
other hand, that it was vested in them for the use of the public
generally, and not particularly for the use of the inhabitants of
what was then called the Northern Liberties, or the township of
the Northern Liberties at any time, more than for the use of the
inhabitants of any other part of the State.

As to the claim of the complainants, notwithstanding their
counsel have advocated it with great zeal and earnestness, and
refer to many acts of assembly, as well as books on municipal
and international law, in support of it, we still think that they
have failed to sustain it.

Among the acts of assembly referred to, none appear to have
any bearing upon the question to be solved, unless, perhaps, it



43 SUPREME COURT [Dec. Term,

(Spring Garden e. The Northern Liberties.)

may be those of the 20th of February, 1768, (1 Smith's L. 278 ;)
the 4th of April, 1796, (3 Smith's L. 274 ;) the 28th of March,
1803, (4 Smith's L. 35 ;) the 1st of April 1811, the 13th section,
(5 Smith's L. 255 ;) the 22d of March, 1813, (6 Smith's L. 37 ;)
the 16th of March, 1819, (7 Smith's L. 177 ;) and the 6th of
March, 1820, (7 Smith's L. 260.) I do not, however, consider
it necessary to notice them all ; because the act of the 20th of
February, 1768, which the complainants make the foundation of
their claim, when construed according to the natural import of its
terms, and what would seem to have been the intention of the
legislature, does not bear them out. They have endeavored to
show that by this aot the wharves and public landing places in
question, were declared and established to be for the use of the
inhabitants of what was therein called the Northern Liberties,
and afterwards, the township of the Northern Liberties, in the
act of the 4th of April, 1796. For this they rely chiefly upon
the title and preamble of the act. The title is, " An act for
raising, by way of lottery, the sum of five thousand two hundred
and fifty pounds, for the purchasing a public landing in the North-
ern Liberties, and paving the streets of the city of Philadelphia ;"
and the preamble thereof, so far as relied on, is in these words,
" Whereas it has been represented to the assembly of this pro-
vince, by petition from sundry inhabitants of the city of Phila-
delphia, and Liberties thereto adjoining, that the few public land-
ings at the north end of the said city, and in the said Liberties
thereof, are scarcely sufficient for the accommodation of its present
inhabitants and the king's barracks, &c., to provide for which,
Be it enacted," &c. Now, if the enacting part of the act had
not, in express terms, declared that the landing therein men-
f*441 ti ne d should be purchased *for a different use from that
' which, it is contended by the counsel for the complain-
ants, the title and preamble thereof indicate, there might have
been perhaps, some show of plausibility, at least, in drawing the
conclusion which they have done. But the tenth section of the
act, as originally published, or the second section thereof, as pub-
lished in 1 Smith's L. 278, 279, enacts and declares, " that the
commissioners of the county of Philadelphia, in trust for the pub-
lic, by and with the consent and approbation of the justices of the
peace of the said county, in the court of Quarter Sessions, shall,
and they are thereby required and enjoined to buy a landing
nearly opposite the said barracks, and receive the deed thereof,
in trust for the public ; and further to build, or cause to be built
thereon, a good wharf and a pier, for the use of the public."
And by the next succeeding section, it is further made the duty
of the said commissioners, with the approbation of three Justices
of the Peace of the county, to take care of the landing, by letting



1835.] OF PENNSYLVANIA. 44

(Spring Gardens. The Northern Liberties.)

it out for the purpose of repairing and improving it for ever there-
after, as the said commissioners and justices, or a majority of
them, for the time being, may judge most for the public good.

Now, although it may be, as rather seems to be indicated by
the preamble of the act, that the legislature was induced or
prompted to act upon this subject by a representation made in
regard to it by some of the then inhabitants of the city of Phila-
delphia, and liberties thereto adjoining, stating that the few land-
ings at the north end of the city and in the liberties thereto, were
scarcely sufficient for the accommodation of its inhabitants at
that time and the king's barracks, yet it is clear that the legis-
lature did not view the matter as a private grievance, but as one
which concerned the public at large; and therefore expressly
declared and directed, that the purchase of the landing should
not only be in trust for the public, but that the deed of conveyance
from the vendor to the commissioners for it, should also be taken
in trust for the public ; and, again, that the commissioners, after
having purchased the landing, should not only build a wharf and
pier thereon, for the use of the public, but should likewise for ever
thereafter, repair and improve the same as they should judge best
for the public good. Thus we see that the public is brought to
view and designated as the only beneficiary of the landing as
often as it is mentioned, or anything said in relation to it, almost
throughout the act, so that it is impossible to impute this repeti-
tion and uniformity of the declaration of the trust in favour of
the public, to accident or inadvertence on the part of the legis-
lature, or indeed to any thing but settled design. And so it was
taken and considered by subsequent legislatures in their action on
the subject. In the preamble to the act of the 4th of April, giving
further powers to the commissioners of the county of Philadelphia,
in conjunction with three justices of the peace of the county, over
the landings and wharves in dispute, it is stated "that the public
*landings on the river Delaware, in the township of the r^jc-i
Northern Liberties, may be rendered more serviceable >
and productive by giving further powers to the commissioners of
the county of Philadelphia, in whom the same are vested by laiv
for the use* of the public ." And so throughout this act they are
styled public landings and wharves; and are placed under the
control and management of the commissioners of the county and
three justices of the same, without regard to or even mention of
the inhabitants of the township of the Northern Liberties. And
the 3d section enacts, " that it shall be the duty of the said com-
missioners to keep the said landings, wharves, and hay scales, in
good and perfect order and repair, and to improve the same from
time to time in such manner as will most conduce to the public
advantage; and whenever the funds which have arisen, or shall



45 SUPREME COURT [Dec. Term,

(Spring Garden t>. The Northern Liberties.)

arise therefrom, shall over and above the said repairs and im-
provements, be sufficient to purchase other landings, or wharves,
it shall be the duty of the said commissioners, with the consent
and approbation of three justices as aforesaid, to make such
purchases within the township of the Northern Liberties, and to
improve the same ; and the landings or wharves so purchased or
improved, shall be held under the like trusts and subject to the
same rules and regulations as the before mentioned public land-
ings and wharves." The circumstance of the commissioners
being restrained by this section to the purchase of landings and
wharves lying within the township of the Northern Liberties as
it then stood, has been laid hold of also by the counsel of the
complainants, to show that the legislature intended to appropri-
ate not only the profits arising from all the public landings and
wharves then within the township of the Northern Liberties, to
the use of the inhabitants thereof, but the profits likewise of all
that should thereafter be purchased with the funds arising from
those then in being. But, clearly, there is no ground whatever
for this construction, because the township is not mentioned for
the purpose of showing for whose use the purchases should be
made ; nor are there any terms of appropriation connected with
it. It is introduced merely to designate the space or bounds
within which the commissioners should make the purchases en-
joined by the act ; and it is also perfectly obvious, that if the
township had been introduced as the object for whose use the
purchase of the landings and wharves was to be made, the next
clause declaring that they " should be held under the like trusts"
would be worse than useless, because it does not enforce or even
comport with such construction, and therefore ought not to have
been inserted ; but it having been declared in the preamble of
the act that the public landings on the Delaware, then within the
township of the Northern Liberties, were vested by law in the
commissioners of the county for the use of the public, the words
" like trust," must be considered as having a direct relation
thereto, which renders every part of the section perfectly perspi-
f*461 cuous as wc ^ ^ consistent *with itself. Seeing, then, that
' these landings and wharves were held for the use of the
public, and not for the inhabitants of any particular township,
or county, or section of the state, it cannot be questioned but
the legislature had the right, as often as they saw fit, to direct
and change the appropriation of the funds or profits arising
therefrom ; and this was done in 1819, as to the public landings
and wharves at the end of Coates street, and at the end of Cal-
lowhill street. By the 36th section of the act of the 16th of
March, passed in that year, and referred to above, the title to
these wharves and landing places last mentioned, was vested in



1835.] OF PENNSYLVANIA. 46

(Spring Garden v. The Northern Liberties.)

the board of commissioners and their successors, of the incorpo-
rated district of the Northern Liberties, "for the use and benefit
of the inhabitants of the said district" The title to them had
previously been vested in the commissioners of the county of
Philadelphia, for the use of the public. By this same section it is
also declared and enacted as follows, that " the public wharf or
landing place, commonly called the Hay -scale landing, as also
the public wharf or landing place, on the south side of and ad-
joining Callowhill street, (being the wharves and landing places
now in controversy,) heretofore held in trust by the commis-
sioners of the county of Philadelphia, shall be and are hereby
vested in the board of commissioners of said district, (meaning
the incorporated district of the Northern Liberties,) who shall
keep the said landings and wharves in good and perfect order
and repair, and to improve the same from time to time in such
manner, as will most conduce to the public advantage ; and when-
ever the funds which shall arise therefrom, shall, over and above
the said repair and improvements, be sufficient to purchase other
landings or wharves, it shall be the duty of the said commis-
sioners to make such purchase within the township of the North-
ern Liberties, and to improve the same." Thus, although the
title for these wharves and landing places, which are the subject
of dispute here, is taken from the commissioners of the county
of Philadelphia, and vested in the board of commissioners of the
incorporated district of the Northern Liberties, yet we see that
the legislature studiously avoided making any change whatever
in the use of them ; and the commissioners of the incorporated
district of the Northern Liberties were thereby expressly re-
quired to keep them in good and perfect order and repair,
and to improve them from time to time in such manner as
should most conduce to the public advantage without even
the slightest allusion to or mention of the inhabitants of the
township of the Northern Liberties ; and what renders the de-
sign of the legislature at that time to continue the use of these
latter wharves and landing places to the use of the public gener-
ally, the more striking is, that in the preceding part of the sec-
tion, they have declared that the wharves and public landings at
the end of Coates and Callowhill streets, respectively, should be
held for the use and benefit of the inhabitants of the incorporated
* district of the Northern Liberties, without any direction r*A>r-i
given to improve them, as should most conduce to the *
public advantage, as was done in respect to the wharves and land-
ing places in question. There, was, however, a change made by
this section of the act of 1819, as regarded the place, within
which the surplus funds arising from these last mentioned wharves
or landing places should be invested by the commissioners in the



47 SUPREME COURT [Dec. Term,

(Spring Garden t>. The Northern Liberties.)

purchase of other wharves or landing places, by restraining and
confining them within the then existing bounds of the township
of the Northern Liberties; which clearly excluded the district
of Spring Grrden and the township of Penn, but included the
incorporated district of the Northern Liberties and the district
of Kensington ; because the township of Penn, which embraces
the district of Spring Garden, having been erected and taken
off from the township of the Northern Liberties, by a proceed-
ing and order made for that purpose in the Court of Quarter
Sessions, of the County of Philadelphia in 1808, and afterwards
confirmed and established by the 13th section of the act of
Assembly of the 1st of April, 1811, already mentioned, could
therefore form no part of the latter in 1819, as it had done pre-
viously. And as to the reason for introducing the township of
the Northern Liberties in this part of the 36th section of the act
of 1819, it is perfectly manifest, that it was done for no other



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