169 Pa. 366 | Pa. | 1895
Opinion by
The act of May 1, 1876, P. L. 94, provides that councils of cities not of the first class “ shall not pass any ordinance authorizing the grading or paving of any street .... before they have caused the city engineer to make an estimate of the total cost of such improvement, particularly stating the items and the cost of each, and a map or plan of all the property liable to assessment for the cost of the same, and also caused the board of viewers to view the property and make a schedule showing
The select council of the city of Reading on Aug. 9, 1886, passed an ordinance, S. C. No. 37, for the grading of South street. This ordinance had the necessary plan, estimate, etc. attached as the act of 1876 required, but on coming up in common council, Sept. 2, 1886, it was defeated.
On Sept. 27, 1886, a new ordinance, C. C. No. 30, was introduced into common council, and on Oct. 11, 1886, it was passed by both chambers. This ordinance was not preceded by any action of councils causing the city engineer to make an estimate, plan, etc., in connection with it, but at some time, which the jury have found was before final passage, the plan, estimate, etc., belonging to the defeated ordinance, S. C. No. 37, were detached therefrom, and attached to the new ordinance, C. C. No. 30.
These facts being undisputed, the question raised by the first point reserved is whether they show a sufficient compliance with the act' of 1876 to make the second ordinance, C. C. No., 30, valid. We are clearly of opinion that they do not.
It would be sufficient objection for the purposes of this case, that the attachment of the plan etc. to the new ordinance was not done at the command, or by the authority of councils, nor so far as appears even with their knowledge as a body, though some of the members knew of it. It was the act of the city clerk of his own motion or on the suggestion of a member as to the necessity of it. This was entirely insufficient. The statute contemplates that it shall be done by council as a body, in their legislative capacity, so that all the members shall have notice or knowledge ,of the facts which are made a prerequisite to their valid legislative action.
But even if the attachment of the old plan to the new ordinance had been by command of councils themselves, that alone would not have been sufficient. The main object of the act of 1876 was to compel councils when passing the ordinance to
There is nothing in the cases cited by appellant, which conflicts with these views. Oil City v. Morris, 1 Penny., 420, decided that a view by the commission under the act of 1872
The whole ordinance being invalid it is not strictly necessary to consider the other points, but we are of opinion that the lien was bad in form. It is a proceeding in rem, and there is no authority for dividing up the assessment and filing part of it against the “ right and title ” of one joint owner.
The learned judge left to the jury the question whether the land was rural, and they found it was not. But the facts having been stated in a point reserved, the judge was of opinion as matter of law that it was. The question whether urban or rural is usually for the jury because it is one of fact: South Chester v. Garland, 162 Pa. 91; McKeesport v. Soles, 165 Pa. 628. But where the facts are agreed upon it becomes a question of law for the court as in other cases. We cannot say that the learned judge with his superior knowledge of the locality was not right in his view of the point reserved, but we have here two opposite findings on the same facts. This, to say the least, is inconvenient practice. Either the question should have been withdrawn from the jury on the ground that the facts were agreed upon for the court, or having been submitted to and found by the jury the point reserved should have been considered as withdrawn; and the verdict, if against the
Judgment affirmed.