Shenk v. McKennan

Opinion by William W. Porter, J., The plaintiff’s claim is founded upon the letter of August 7, 1896, by which the defendant club accepted the plaintiff’s proposition to rebuild the westerly wall of the club house for $750 “ including all shoring and bracing that may be required, to the extent that the club may be legally liable therefor, and with the distinct understanding however that if under the building [88] law the club is not liable for the payment for this work, then you seek payment therefor elsewhere than from the club.” The work was done. The defendant now claims that under the law it is not liable. Section 8 of the act of June 7, 1895,. provides that the owners of the building to be underpinned are chargeable with the cost of the work when the excavation for the foundation of the new building is fifteen feet (or less) in depth but “ should any owner or owners desire to excavate to a greater depth than fifteen feet he or they shall protect and if necessary underpin the wall of any adjoining structure at his or their own expense.” The testimony shows that the excavation for a considerable part of the foundation for the new building exceeded fifteen feet. The defendant therefore claims that under the terms of the contract and the provisions of the act, he is not liable to the plaintiff. To this the plaintiff answers that the last clause of section 8 of the act of June 7, 1895, offends against section 7 of article 3 of the constitution which provides, inter alia, that “ the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.” The act of June 7, 1895 (of which section 8 is a part), provides a system of building inspection and regulations for building construction for cities of the second class. Legislation for a class of cities is general and valid, when it relates to some municipal purpose. If it does not affect the exercise of some municipal power or the number, character, powers and duties of the municipal officers or the regulation of some subject within the appropriate range of municipal control, the legislation is local and unconstitutional: Van Loon v. Engle, 171 Pa. 157; Ruan Street, 132 Pa. 257; Ayars’s Appeal, 122 Pa. 266. It is unnecessary to refer specifically to the many provisions of the act of 1895. The scope and purpose of the act is to place the construction of buildings in cities of the second class under the supervision and control of municipal officers for the purpose, not of determining or affecting the rights of particular property owners, but that building shall be pursued according to certain general rules to the end that the city may be improved by regularity, safety and symmetry of construction and that the citizens may be protected from the perils of unsafe or improper construction. The act,’ therefore, as a whole affects [89] the exercise of municipal power; the number, character, power and duties of certain municipal officers, and the regulation of a subject-matter within the appropriate range of municipal control. The act speaking generally is therefore constitutional and indeed in Wheeler v. Philadelphia, 77 Pa. 338, Mr. Justice Paxson uses as an instance of what matters may be made the subjects of legislation for cities as a class “ the laws in regard to building inspectors and Mr. Chief Justice Sterrett in Cunningham v. Church, 159 Pa. 620, speaks of building inspectors as being “ officers of the city invested to a certain extent with the police power of the state.” This much need be said in view of the following discussion. The act as a whole is not attacked on the ground of unconstitutionality but only the last clause of section 8 of the act, which is said to be unconstitutional because in ease of excavation more than fifteen feet below the curb line, the building inspector would have no right to interfere and no duty to perform, and the effect of the law would be only to require builders in cities of the second class to protect and underpin an adjoining wall. This reasoning is not sound. The last clause cannot be severed from the balance of the section. So severed it is insensible. Its purpose is not primarily to work the creation of a right or liability as between individuals. It is the creation of an obligation to the municipality enforceable by an officer thereof. The .first clauses of the section provide for the performance of a duty by the owner of an adjoining property where the proposed excavation for a new building is fifteen feet or less. The bureau of building inspection intervene and require (not on behalf of the owner of the new building) but on behalf of the municipality that the adjoining owner properly protect his property and on failure to do so the municipal officer may order it to be done at the owner’s expense. This is the course to be pursued “whenever the owner or owners of the property wish to excavate to a depth not exceeding fifteen feet.” But “should any owner or owners desire to excavate to a greater depth than fifteen feet, he or they shall protect and if necessary underpin” at his or their own expense. It is claimed that this language creates a right as between the property owners and is therefore legislation relating to the property rights of property owners in one class of cities only and that the corporate powers and officers have no part in this case. [90] A reading of the whole clause indicates that the desire of the proposed builder as communicated to the bureau determines the course to be pursued. If the owner of the adjoining property is to be charged, it required the provisions of the first clauses of the section. If the owner of the proposed new building is to be charged, he is already in the control of the bureau by reason of bis application for permission to build. The building permit is issued on performance of all'the obligations imposed by the law. The obligation of the last clause of section 8 enforceable by the municipal officers is primary. The right of the adjoining-owner to protect himself is secondary. A reference to section 5 of the act corroborates this view: “ The Bureau of Building Inspection shall be furnished by the owner, contractor, or architect with a copy of the general drawings, plans and specifications of any proposed erections or alterations of buildings, which shall sufficiently show the character and extent thereof and the purpose of the builder to comply with the requirements of this act and the proper officer of said bureau shall grant permits for such erections or alterations when in conformity with the requirements of this act. .... The said bureau may require any applicant for a permit to give notice of the application to any persons whose property interests may be affected by the proposed work. No building shall be hereafter erected .... without a permit from the Bureau of Building Inspection, nor except when in conformity with the provisions of this act.” It will thus be seen that the municipal bureau of building inspection has the power and upon it is imposed the duty in the first instance, to enforce the provisions of the' act. Upon a failure to abide by and carry out any decision of the bureau or of an inspector, by section 48 of the act, the court of common pleas, may, upon petition of the director of the department of public safety, issue a mandatory decree requiring compliance, and section 44 makes a violation of the provisions of the act subject to a penalty recoverable in the name of the city before a magistrate and payable into the treasury of the city. The whole scope and purpose of the act must be had in contemplation in construing the clause under consideration. It is a provision germane to the general enactment. It is a part of [91] and an incident to, a system, or a set of regulations relating to a subject within the appropriate range of municipal control. Holding these views we find no error committed by the court below and therefore the judgment is affirmed. Rice, P. J., and Orlady, J., dissent.