Appeal, No. 180, Jan. T., 1949, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1947, No. 4112, in the Matter of Selection and Appropriation of Certain Tracts of Land in the City of Philadelphia for Playground and Recreation Centers. Order affirmed.
John V. Horan, with him Louis J. Soligon, O. Charles Brodersen, Assistant City Solicitors, and Frank F. Truscott, City Solicitor, for appellant.
Wesley H. Caldwell, with him Roper & Caldwell, for appellees.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE JONES
By due enactment of June 9, 1947, Philadelphia's City council ordained (Section 1) that, by virtue and in pursuance of the authority vested in it by Acts of Assembly, it "does hereby select and appropriate for playgrounds and recreation centers certain sites and tracts of land situate as follows..." Then followed descriptions of forty-nine separate tracts. Tract No. 4 consisted of two blocks of property in the Thirteenth Ward of Philadelphia. In one of the blocks there was situated property of Harry A. Schaefer and Philip C. Schaefer (the present appellees) improved with a four story factory building in which the owners conducted a manufacturing business. Section 2 of the ordinance authorized the City Solicitor "to file in the proper court a petition for the assessment of damages arising from the aforesaid selection and appropriation of land"; and Section 3 directed that the amount of such damages, when ascertained and assessed, be charged against a certain designated fund of the City. The ordinance was duly published as required by law.
Upon petition by the City, the court below appointed viewers to assess the damages due the owners of the condemned property embraced by tract No. 4. The viewers entered upon the discharge of their duties, but, at a hearing on November 22, 1948, fixed for the purpose of receiving testimony as to the value of the property of the present appellees, inter alia, the City Solicitor informed the viewers that the City contemplated changing the ordinance in order to eliminate therefrom the tract of land identified as site No. 4 and to substitute therefore another tract. The City Solicitor thereupon requested the viewers to continue the hearing until City
council had taken further action in the matter. By ordinance passed and approved December 23, 1948, council undertook to amend the original ordinance of June 9, 1947, in the manner forecast by the City Solicitor; and, on February 9, 1949, the City petitioned the court below to discontinue the viewers' proceeding relating to the property embraced by original site No. 4. A rule to show cause was entered on the petition to which the appellees filed an answer denying any right in the City to discontinue the viewers' proceeding or to abandon the condemnation. After argument, the learned court below dismissed the petition. This appeal by the City followed.
The question involved is whether the ordinance of June 9, 1947, worked an immediate taking and appropriation by the City of the property described therein which the City, as condemnor, was thenceforth incapable of abandoning by ex parte action. The answer is necessarily in the affirmative.
The ordinance was no mere authorization to institute proceedings to condemn. It was the condemnation. Cf. Danforth v. United States, 308 U.S. 271, 286. The prior legislative authority was contained in the Act of May 20, 1921, P.L. 957, Sec. 1 (53 PS § 1551), which empowered cities to acquire by condemnation, inter alia, property for playgrounds and other recreational purposes. The words of appropriation employed by the ordinance were in praesenti : City council did "hereby select and appropriate." That those words were meant to be operative forthwith is further confirmed by the fact that the ordinance went on to authorize the City Solicitor to petition the court for the assessment of damages arising from "the aforesaid selection and ...