26 Pa. Super. 459 | Pa. Super. Ct. | 1903
Opinion by
This case grew out of the construction of a lateral sewer in Myrtle street from Twenty-ninth street to' Peach street. We have not been furnished a copy of the ordinance, but we assume from the course of the argument that it provided that the cost be assessed upon the abutting properties “by an equal assessment by the foot front,” etc. .The claim filed against this piece of land was for its proportion of the cost of the construction of the sewer; also for the cost of house connections, and five per cent penalty for nonpayment of the assessment within the time required by the ordinance.
The matters assigned as error are the refusal of the court to strike off the lien, certain rulings upon evidence and instructions given to the jury upon the trial of the sci. fa., and the refusal to enter judgment for the defendant upon the point of law reserved non obstante veredicto. The questions thus raised are summarized in the appellants’ statement of the questions involved under five heads, and we will discuss them in the order there presented.
1. It is suggested, although the' point is not argued in the appellants’ printed brief, that the way described in the claim as Myrtle street was not a legally opened street. This was a mixed question of law and fact. The learned trial judge instructed the jury that although the street was established by ordinance in 1874, yet it was necessary to make it a public street that it “ be opened by the city on the ground and used as a street by the public,” and submitted to them the question whether “ there is a street there on the ground used by the public which has been accepted by the city and opened as a public street.” So far as this proposition involved matter of law there was no error of which the defendants can complain,
2. Section 35 of the Act of May 16, 1901, P. L. 224, provides that whenever the cost of local improvements of any kind in cities of the third class is to be assessed upon the abutting properties, at least five days’ notice shall be given of the time and place of making the assessment, also that notice be published in one or more newspapers for three successive days. Notice was duly published the required number of days, and was served on the owner on April 21. But as the assessment was to be made on April 25, this was one day short. The assessment consisted of an apportionment of the cost of the improvement on the properties abutting upon it by the foot front rule and was made by the city engineer. He put this in tabulated form, showing cost of the improvement, including the itemized accounts of the several amounts charged to each property, and returned it to councils. Having been approved by them and the mayor, the claims for the amounts thus assessed went into the hands of the proper city officer for collection. No question is raised as to the regularity of the assessment, except as to the notice. But it is claimed that the statutory provision as to that matter is mandatory, and must be obeyed under the penalty of having the assessment and all subsequent proceedings declared void. What we have to say upon that subject is to be understood as relating only to an assessment by the city engineer, whose simple duty is to apportion the cost as above stated.. A leading case upon the subject of mandatory and directory provisions of a statute is Bladen v. Philadelphia, 60 Pa. 464, where Justice ShaksWood said: “ It would not perhaps be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. . Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory ; but negative words which go to the power or jurisdiction itself have never, that I am aware of, been brought within that category.” This statement of the general rule, as any statement must, leaves considerable latitude for construe
3. The claim was died in the proper office within the time prescribed by the act, and was entered on the judgment index as directed by the 26th section. Thus far, the statute was complied with literally. But, instead of entering the claim in the mechanic’s lien docket, as directed by the same section, the prothonotary entered it in the municipal lien docket. He also neglected to keep a locality index at that time, as directed by the 27th section. Compliance with these statutory provisions, was not optional with the prothonotary, and we are not to be understood as deciding that the procedure pursued by him was as effectual for all purposes as if he had complied strictly with them. But it is quite clear to us that failure to enter the claim in the mechanic’s lien docket, in addition to entering it in the municipal lien docket, or the prothonotary’s neglect to keep a locality index, was not sufficient to invalidate the lien as between the parties, nor to absolutely bar recovery upon the sci. fa. issued upon it. What may be the effect of these irregularities upon the rights of the plaintiff as against third persons is a question upon which we express no opinion. See Magee v. Com., 46 Pa. 358; Dewhurst v. Allegheny, 95 Pa. 437; Summy v. Hiestand, 65 Pa. 300.
4. It is objected that the claim is defective because it does not properly set forth (a) the authority under and by virtue of which the work was done; (5) the kind and character of work done and materials furnished. As to the latter, we adopt the language of Judge Walling: “I am of the opinion that the lien sufficiently sets out the kind and character of the work done. It gives the size of the sewer, its material and the length in front of defendants’ property and the price per foot; and
5. The only remaining question relates to the charge for two house connections of eighteen feet éach. It seems that in constructing the sewer, branches were laid therefrom to the inner side of the curb in front of these and doubtless other abutting properties. As we understand the case, the cost of these house connections was not included in the cost of the lateral sewer, and therefore was not apportioned according to frontage amongst the several abutting properties. The authority, if it existed, for imposing a charge upon the defendants’ property for the actual cost of these house connections, must be found in Section 5, Article 13, of the Act of May 23, 1889, P. L. 277, as amended by Section 29 of the Act of May 16, 1901, P. L. 224, 246. But that section plainly contemplates notice to the owner and default of compliance with the notice. It is conceded, however, that no notice was given; hence it cannot be said that the defendants were in default, and unless the facts distinguish the case from Pittsburg v. Biggert, 23 Pa. Superior Ct. 540, the principle there decided would seem to be applicable here and to sustain the defense so far as this portion of the claim is concerned. It is urged, however, and the learned judge below took that view of the evidence, that the failure to give notic^ to the defendants to make the house connections
The judgment is modified and amended by deducting from the amount thereof, as of the date when it was entered, the sum of $13.83, this being the cost of the house connections, and interest thereon to the date of judgment and five per cent penalty; and as thus modified and amended the judgment is affirmed.