City of Allentown v. Hower

| Pa. | Mar 1, 1880

Mr. Justice Sterrett

delivered the opinion of court, May 3d 1880.

The claim against the defendant was for “ water-frontage tax ” regularly assessed for water-pipe laid in front of his property on the south side of Walnut street. The tax, not having been paid within the time required, was registered in the city lien docket; but the defendant contends that the registration was so fatally defective that the court was right in striking off the claim.

The municipal corporation act, providing, among other things, for extending the supply of water, requires the clerk of the department to make a list of all the owners of houses, lots and buildings on each-side of the street through which water-pipes are extended, and charge each respectively such rate per foot front as may he fixed by ordinance. The charge so made is to be collected as city taxes, and if not paid within the time prescribed, the same shall be registered in the manner provided for registering unpaid city and school taxes on real estate, with like force and effect as to lien against such property, and subject in all respects to like mode of" procedure and remedy for recovery of the same: Purd. Dig. 1925, pl. 144 — 45. The 36th section of the act, providing for the annual levy and collection of city taxes, directs the treasurer to receive and collect taxes until and including the first day of January, after which he shall furnish a correct and detailed statement of delinquent taxes respectively due upon real estate to the city solicitor, who shall cause the same to be registered on the city lien docket in the prothonotary’s office, in the name of the city and against the person or persons charged therewith; and all taxes so registered shall be and continue to be liens on the real estate upon which they have been assessed for the term of five years from the date of the levy: Purd. Dig. 1916, pl. 96 — 7. The next section provides that recovery may be had on claims for taxes, water-frontage tax, &c., in the Court of Common Pleas, “ by action of debt * * * or by scire facias, as in the case of mechanics’ claims;” and the claims so registered shall be prima facie evidence of the amount thereof, and of the same being due and owing, &c.

While no particular form is prescribed, the registration should, for the purpose of notice as well as remedy, contain at least a brief description, including location, of the property assessed, corresponding with that which the clerk of the department is required to make when frontage tax is assessed, giving the name of the owner or reputed owner, the amount of the assessment, its date and what it was for. If the claim is for “water-frontage tax,” it may be designated by that name as the act provides. If these matters are briefly noted in the claim, the registration will furnish at least constructive notice to purchasers and subsequent encumbrancers of the nature, extent and duration of the lien. One of the remedies given is a proceeding purely in rem, by scire facias, as in the case of mechanics’ claims. To make this available, it is necessary that the property against which the lien is sought to be enforced should be designated with such certainty as to enable the sheriff to execute the levari facias ; but it is unnecessary to conform strictly to all the requisites of a mechanic’s lien. The name of the contractor or material-man need not be given, nor is a bill of particulars, &c., necessary. In Pittsburgh v. Cluley, 16 P. F. Smith 449, it was said that the mechanics’ lien act furnished only a general and not a specific rule of proceeding. The special act under consideration in that case required the lien to be “filed in the same manner as mechanics’ liens,” and authorized writs of scire facias and levari facias to “ be issued thereon as in the case of mechanics’ liens,” and yet it was there shown to be unnecessary, and in some respects impossible, to conform to all the requirements of the mechanics’ lien law. The municipal corporation act contains no such binding directions as to how the claim shall be registered, nor does it require that it should be even in the form of a mechanic’s claim. It simply directs that' the claim shall be registered, and provides that one of the remedies for its collection may be “ by scire facias, as in the case of mechanics’ claims.”. The manner of assessing or charging water-frontage tax is specially prescribed, as we have seen. The amount of the claim against each particular lot is thus fixed and determined, and hence it is unnecessary to set forth the particulars in detail. The claim, however, should be stated with such certainty and precision as to answer the purpose of notice, and at the same time support the proceeding that is authorized as one of the remedies for enforcing payment.

The court was clearly right in holding that the claim as registered was defective and insufficient to support a scire facias, &c.; but under the ninth section of the Act of April 21st 1858, Purd. Dig. 70, pi. 5, which the court properly held to be a general law, we think it was amendable, and an amendment should have been allowed. That section provides, " that municipal claims for taxes, liens, public assessments or charges may be amended at any time before or at the trial, on notice given the defendant under rule of court, Provided, that if made on the trial, a continuance may be granted by the court on the application of the defendant.” Such acts as this should be liberally construed, and while amendments are not a matter of ri'ght, they should be allowed where it can be done without prejudice to intervening rights. So far as appears there were none in this case. The assessment of water-frontage tax against the defendant’s property, which was no doubt made as directed by the act, would furnish all the data necessary for the amendment.

The order of court striking the claim from the record is reversed and set aside, the rule to amend reinstated, and record remitted for further proceedings.