220 Pa. 7 | Pa. | 1908
Opinion by
The learned trial judge in the opinion filed by him, has fully vindicated the decree which he entered, and upon that opinion the decree is affirmed. ‘ .
There is another sufficient reason for sustaining the decree. The manifest purpose the city had in view in passing the ordinance was, as clearly disclosed in the ordinance itself, to ultimately widen Yirgin alley. It, therefore, should have enacted an ordinance for that purpose and should not have attempted to evade liability to injured property owners by passing an ordinance ostensibly for another purpose but in reality to widen the alley.
The ordinance in question enacts: “ That the northern building line of Yirgin alley, from Smithfield street to Grant street, be and the same is hereby relocated; ” and locates the line “ at a distance of 24 feet northwardly from the present north building line of Yirgin alley.” The intention of the ordinance is then declared in the following language : “ The intention of this ordinance is to relocate Yirgin alley, from Smithfield street to Grant street, to a width of forty-four feet by taking a strip of ground twenty-four feet in width from the properties on the northerly side of Yirgin alley.”
Yirgin alley is an old street, extending from Liberty avenue to Grant street and crossing Wood and Smithfield streets. By an ordinance, passed about six months prior to the ordinance in question, the city authorized the widening and opening of Yirgin alley from Liberty avenue to Smithfield street, and the assessment of damages caused by the grade of the street. Instead of extending this ordinance to that part of the alley between Smithfield and Grant streets, and thereby authorizing the widening of the alley, as was done in the part of it between Liberty avenue and Smithfield street, the city passed the ordinance in question which is entitled “ An ordinance re
Notwithstanding the title of the ordinance, it is simply an ordinance for the widening of Virgin alley between Smith* field and Grant streets. The “ relocating the northern building line of Virgin alley ” is widening Virgin alley for the distance between the present and the proposed northern line. This difference is declared in the ordinance to be twenty-four feet, and the width of the alley is simply enlarged to that extent ; or the alley is widened, in the language of the ordinance itself, “ by taking a strip of ground twenty-four feet in width from the properties on the northern side of Virgin alley.” The alley remains as it has existed for many years, and it is not proposed in the ordinance to change its location or to vacate it. Its southern line is to remain as it ever has been, and the purpose of the ordinance is simply, as its title declares, to locate the northern line of the alley by a line parallel with and twenty-four feet distant from the present northern line of the alley. These are the facts of the case as declared by the ordinance itself. It is in effect, therefore, and may be said to be an ordinance to widen Virgin alley between Smithfield and Grant streets.
If the city desires to add this additional width to Virgin alley or to change and straighten the northern line of the alley,, the act of assembly prescribes the manner in which it must be done. This power is conferred upon the city by the Act of March 19, 1903, P. L. 35, 3 Purd. (13th ed.) 27M, which authorizes the city, in the manner therein pointed out, “to open, widen, straighten or extend streets or alleys, or parts thereof, within its limits, and to vacate streets or alleys, or parts thereof.” This is specific authority, conferred by an act of assembly, authorizing the city to do the act which the ordinance in question declares it intends to do, namely, to widen Virgin alley between Smithfield and Grant streets. The legislature having thus provided a method for adding an
It is clear from an examination of the legislation on the subject, that the legislature has made ample provision to enable the city to carry out the purpose it had in the enactment of this ordinance. The city, therefore, is not driven to invoke the aid of any implied powers, nor, as we have seen, can it invoke them so long as there is express statutory power authorizing it to accomplish its purpose. There is an abundance of legislation conferring ample power upon the city to locate, lay out and open streets; to widen, straighten, extend and vacate streets; and to grade, pave, curb, macadamize and otherwise improve streets. So long as this authority exists, so long must it be strictly pursued. Nor can the municipality evade a compliance with the method pointed out for exercising the authority. Whenever the municipality desires authority to act, it must proceed in the manner which the facts of the case require. Its council cannot escape the provisions of the statute or ignore the course of procedure directed by the statute by simply declaring in the ordinance a purpose other than the facts disclose. The facts must determine what method the city shall pursue to accomplish its purpose, and those facts requiring it to proceed in the manner provided in certain legislation, the provisions of the legislation will determine the course of procedure.
The assignments of error are overruled, and the decree of the court below is affirmed.
