Prescott v. Burgess of Duquesne

The opinion of the court was delivered, by Woodward, C. J. — This was an action of assumpsit originally instituted before a justice of the peace, in the name of John Long, for the use of burgess and town council of the borough of Duquesne, to recover from Prescott, the plaintiff in error and defendant below, the fees or charges for wharfage, which, by [120] Act of Assembly, the borough authorities were authorized to levy and collect from transporters landing on their premises. After judgment for the plaintiffs before the magistrate, the defendant appealed, and on the trial in court, Long’s name was stricken from the -record, and he was admitted as a witness for the borough. This is the first error complained of. It is insisted that Long was not competent as a witness. Why not ? He never had any interest in the moneys sued for, and his name was unnecessarily and therefore erroneously used from the first. Nor was he liable for costs. In these respects he is distinguishable from the witnesses held incompetent in the cases referred to by counsel. The question of competency related to the time of trial, and at that moment it is not pretended he had any interest. But if counsel will have the test applied as of the commencement of the suit, it is equally manifest he had no interest then, for the suit was for charges due to the borough and not to him, and the borough was a legal party, entirely competent to sue for and recover them, and was actually upon the record. The super-addition of Long’s name was a mere blunder, curable at all times, and which left his competency unimpaired when the mistake was corrected on the trial. As to the rest of the case, the Acts of Assembly of 1850 and 1852 authorized the borough to establish and improve the wharf, to make suitable by-laws and ordinances for the regulation of business thereat, to borrow money not exceeding $5000 for the improvement, and to levy and collect a “moderate wharfage” from boats and rafts landing on said improvement, to be placed in a sinking fund for the redemption of the debt occasioned by the improvement. It was in proof that $4600 were expended in 1852, in making the wharf and roads to it, and that it has been in use ever since. Now, in these circumstances, it was not competent for each customer who used the wharf to resist the payment of the “ moderate charges” authorized to be exacted, on the ground that the wharf had not been well built, or needed further improvements. If this defendant might set up a defence on such grounds every transporter might do the same, and the borough would be obliged to prove its work to the satisfaction of successive juries before its moderate charges could be collected. This is not the way to try the question whether municipal corporations have performed public duties. A mandamus would perhaps lie to compel the borough to provide adequate facilities of wharfage, or an injunction, at the suit of some agent of the public, to restrain them from collecting fees for inadequate performance. In either of these modes the question would be tried once for all parties interested. But each individual customer [121] cannot raise the question as a defence ip charges he has voluntarily incurred. If he do not like the facilities furnished he need not use them, but if he use them he must pay for them, so long as the power of assessment vested in the borough is not abused. For these reasons we think the plaintiff in error has no just ground of complaint against the rulings of the court below, and therefore The judgment is affirmed.