City of Meadville v. Dickson, No. 472

No. 472 | Pa. | Oct 14, 1889

Opinion,

Mr. Chief Justice Paxson:

In City of Reading v. Savage, 124 Pa. 328" court="Pa." date_filed="1889-02-25" href="https://app.midpage.ai/document/city-of-reading-v-savage-6239190?utm_source=webapp" opinion_id="6239190">124 Pa. 328, we decided that the fifty-seventh section of the act of May 23, 1874, P. L. 269, providing that any city of the third class may become subject to the provisions of said act, and that the mayor and councils of said city may effect the same by an ordinance thereof duly passed, is valid and constitutional, and is not obnoxious to the charge of being special or local legislation. We need not repeat the reasons there given for this ruling. The decision was made after mature consideration and a re-argument of the case.

We are now required to pass upon the sixteenth section of the act of April 11, 1876, P. L. 20, which amends the fifty-seventh section of the act of May 23, 1874, by providing that any city of the third, fourth or fifth class may become subject to the provisions of the act of 1874, o'r to any portion or portions of said provisions; “ And the mayor and councils of such city may effect the same by an ordinance thereof, duly passed by a majority of the members elected to each branch thereof voting in favor of the same, which ordinance shall recite fully such provisions, or such portion or portions of such provisions, to which it is proposed to make such city subject,” etc.

This claim was filed by the city of Meadville to charge the real estate of the defendants below with the proportional cost of a sewer constructed along North street in said city. The sewer was constructed under the provisions of §§ 47, 48, and 49 of the act of May 23, 1874, which sections were adopted by the city by ordinance of councils, in pursuance of the sixteenth section of the act of April 11,1876. If the latter act is constitutional, the city has a valid lien for the construction of tins sewer.

It was competent for the city, acting through its councils, to have become subject to all the provisions of the act of 1874, by an ordinance duly passed. This much is settled by City of Reading v. Savage, supra. Relying, however, upon' the validity of the act of 1876, councils accepted only a portion of the provisions of the act of 1874, and proceeded to construct its sewer and to ¡Ble liens for the cost thereof against the owners of abutting property. We need not stop to' discuss the question whether the acceptance of a portion only of the provisions of the act of 1874 would be sufficient to bring the case within the reasoning in City of Reading v. Savage, had such power been conferred by a valid act of the legislature. The act of 1876 was carefully considered in Ayars’s App., 122 Pa. 266" court="Pa." date_filed="1889-01-07" href="https://app.midpage.ai/document/ayars-v-westfield-6239050?utm_source=webapp" opinion_id="6239050">122 Pa. 266, and held to be unconstitutional. In speaking of this act, as well as.the later act of May 24,1887, P. L. 204, it was said by our brother Sterrett, in delivering the opinion of the court: “It has been suggested that such provisions of the classification acts as are not in harmony with the constitution, may' be eliminated without destroying other provisions thereof; but that is no answer to the crowning vice of unnecessary and excessive classification which stands out in bold relief on the face of both acts, and of which nearly all their provisions are predicated. Those acts doubtless contain many wise and wholesome provisions, but they are so interwoven with and dependent on others tliat are unconstitutional and void, that neither of the acts of 1876 or 1887 can be sustained even in part.”

An examination of the sixteenth section of the act of April 11, 1876, shows that it comes directly within the above remark of Justice Sterrett. If it stood alone as an independent section of the act of 1876, and unaffected by the vice of that act, it might be supported. In such case it would be our duty to consider the further question above suggested, whether an ac-' ceptance of a portion only of the act of 1874 would come within the ruling in City of Reading v. Savage. As the mat-, ter stands that question is not reached. We adhere to the ruling in Ayars’s Appeal _and under that decision this lien falls.

It was urged however, that the lien may be sustained without the aid of the act of 1874, and Borough of Grreensburg v. Young, 63 Pa. 280, was cited to show that a borough ordinance requiring a lot owner to pay for paving and curbing opposite his lot was valid and reasonable without special legislative authority. That case does not go to the extent of deciding that a lien may be filed without such authority. A lien is strictly the creature, of statute, , and without such authority it cannot “be lawfully pntered. Nor do we think the lien is helped by the act of May 17, 1887, the second section of which provides, inter alia, that “ all taxes heretofore levied in any of the cities of the third, fourth, and fifth classes, in any one year, in amount not exceeding twenty mills on the dollar, and all assessments made in pursuance of the ordinances of such cities, are hereby made valid. Such taxes and assessments may be collected by action of debt, or proceedings by scire facias may be had to collect any liens filed therefor, in a manner similar to proceedings upon mechanics’ claims.”

It will be seen that this act legislates for cities of the third, fourth, and fifth classes. Under the decision in Ayars’s Appeal there are no cities of the fourth and fifth classes. Hence we cannot say that the legislature would have passed the act with the cities of the fourth and fifth classes eliminated. It shows upon its face that it was intended to apply to the three classes. It is so interwoven with illegal classification that we cannot save any portion of it. This view renders it unnecessary to consider any further objections to this act.

Judgment affirmed.