The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-07-23

in their broad, general meaning of all
contractual obligation TO pay in the
future for considerations received in
the present.
CONTENT MAY TELL.
1t may be that in other sections Of
the instrument the context may indi-
cate that the same words are used in
more limited and technical sense. 1t
will be time enough to consider those
questions when they arise. For the
present it is sufficient that the mean
ing of Section is clear.
1t is true that the constitution does
not exempt municipalities, how great
soever their indebtedness, from liabil-
ity for wrongful and tortious acts. But
it does not authorize the voluntary as
sumption of obligation to pay money
by the scheme of tort. The distinc-
tion between real or unprecedented
torts and voluntary acts under the
technical name of torts, done by agree
ment for the accomplishment of pur-
pose prohibited to be done by contract,
is clear and substantial. And that is
what we have here. The taking or in
jury to land by eminent domain is not
tort in the sense of wrongful act.
When the broad distinction of actions
into those ex contractu and those ex
delicto was established, damages from
the exercise of eminent domain were
unknown. When they came into exist
ence they did not strictly fit into either
class. but as they were certainly not
founded on express contract with the
land owner, they were put in the only
other class, as torts. But when, as in
the present case, the act which is
called a tort is done under a contract
and the assumption of the consequent
DANA ges is an express term of such
| contract, we have perfectly clear case
| outside of the principle that makes
municipalities liable for their wrongful
acts, without regard to their indebted
ness, and within the constitutional pro-
| hibtion of a contractual obligation to
| pay in future for consideration in the
present We are, therefore, obliged to
| hold that the ordinance in question is
void as increasing the indebtedness of
| the city of Scranton beyonds it's con-
stitutional limits. The other objections
| to the ordinance are not sustained.
| WHAT HE FOUND.
| The learned judge below found inter
| ALA that while the debt of the city of
| Scranton was above the two per cent.
| limit, yet part of ii had been author
| lied by a vote of the electors, and If
this part should be excluded from the
| computation, the damages under the
| ordinance for the viaduct would not in
| crease the dept DeyOnu tne limit, Dut lie
| held that the whole debt, authorized by
vote or not. must be taken together in
computing the two per cent. 1t is now
| suggested by the appellees that this
| ruling was incorrect, and If 1t should
| be reversed, the final decree could be
| affirmed, though for different reasons
| from those of the court below. This.
| however, could not be done on the
| present appeal. The ruling was in
| favor of the appellant and, of course,
is not assigned for error. The question
therefore, is not raised by the record as
| IL is now before us for action, and we
| express no opinion upon 1t.
| 1t is not improper to say that we
| have reached our conclusion in this
case with reluctance. The improve
ment intended is one of great import
| ance and value to the public in doing
away with a dangerous grade crossing
and the terms are very advantageous tC
the city But the bar of the constitu-
| tional prohibition is clear and we may
| not permit it to be evadc',
| Decree reversed and bill directed tc
be reinstated, and injunction issued as
prayed. Costs to be paid by appellees
The plaintiff in this case was repre-
sented by Attorneys NJ. w. Lowry, II
NJ. Streeter and |. II. Burns. The city
was represented by ex-City Solicitor A
A. Vosburg and Major Everett War
| rem.