Johnson's Appeal

75 Pa. 96 | Pa. | 1874

The opinion of the court was delivered, January 19th 1874, by

Gordon, J.

This is an appeal from the decree of the Court of Common Pleas, enjoining the city of Philadelphia and others, her officers and employees, from grading, curbing and paving, &c., the sidewalks on Darby avenue or Woodland street, in the 27th, formerly part of ’24th ward, of said city, and from filing or placing on record any alleged lien or claim for any such grading, curbing or paving of said footwalks, on or against the several properties of the plaintiffs to this bill.

This avenue or street is an old highway known as the Darby road. It has been opened and occupied to the width of sixty feet, but is laid out upon the confirmed plan of the city as of the width of eighty feet. The grades for the same have been adopted and recorded, but we understand, except for the distance from 39th to 41st street, there has been no actual opening or grading of the cartway by the city authorities, but that it is occupied by the Delaware County Plank Road Company, and that all but a small portion of this street proposed to be paved, runs through a rural district principally occupied for agricultural purposes.

What is now proposed for our consideration is the authority of the city councils to make the ordinance complained of, dated April 19th 1870, and which reads as follows:—

. “ Whereas, Two citizens of the 27th (late a part of the 24th) ward of the city of Philadelphia, living upon Darby avenue or Woodland street, upon which public lamps have been erected, having been duly qualified before a magistrate to the condition of the sidewalks upon said streets, and asking councils for a curbed and paved footpath, as required by the fifth section of an Act of Assembly of the 22d day of March, a. d. 1865. Now

“ Sect. 1. The select and common councils of the city do ordain that the chief commissioner of highways be and is hereby directed to give to the property-holders on Darby avenue or Woodland street thirty days’ notice, as is required by the Act of Assembly, to grade, curb and pave the sidewalks upon said street, as follows, viz.: on both sides thereof from the city line to Thirty-ninth street, and in case they do not cause the same to be done within thirty days, then he shall cause the same to be done and a lien to be filed against the property in accordance with the second section of same act.”

Now the complainants to the bill, taking it for granted that the councils derived their whole power to grade, pave and curb in the Twenty-seventh ward, from the Act of 1865, complained of this ordinance, forasmuch as, firstly, there was no petition for the paving of such footwalks presented by a majority of the landowners ; Secondly, there was no refusal on part of such owners to petition for such paving, &c., and hence the application by the two citizens, referred to in the ordinance, was nugatory and conferred no power under which the councils could act.

Thirdly, that under this Act of 1865, the paving, contemplated under the petition of the landowners, was but of a temporary character, and to last only until the city had graded the cartway, when, by virtue of the fourth section, the power attached to the councils to order a permanent paving of the footwalks. And it would appear that this was the view entertained of the matter by the Court of Common Pleas. We cannot see the affair in this light. The error into which the court below fell appears to us to proceed from the mistaken idea already adverted to, that the power of the city councils to grade, curb and pave the footwalks, or to order the same to be done, originates in the Act of 1865, whereas, in fact, this power is conferred by the Act of February 1854, known as the Consolidation Act. That act provides: “ That it may be prescribed by ordinance that paving of streets, except at the intersections thereof, and of footways,” &c., “within the limits of the city, shall he done at the expense of the owners of the ground in front whereof such work shall be done,' and liens may be filed by said city for the same as now practised and allowed by law.” This is the nerve through which the consolidated city may and does act in these matters and from which it derives its power. This, however] is no new power conferred upon the city for the first time, as appears not only from the Act of 1854 in its reference to precedent well-known legal formula, but from previous acts passed as well for the various townships and incorporated districts of the county as for the city itself. Passing over the earlier Act of 2d April 1790, which might in itself be construed to be broad enough to enable the city authorities to pave the footwalks, and to raise the money to pay for the same by taxation, we reach, as far back as the 25th of March 1805, an act conferring the power upon the councils to compel the citizens to pave the footwalks. Again, by the Act of 16th April 1838, these same authorities are empowered, at the expense of the owners of the adjacent property, “to regulate, grade, pave and repave, curb and recurb, &c.,'the said footways or sidewalks.”. It also prescribes the method by which such expenses may be recovered from the property-owners.

So in like manner, the Act of 16th April 1840 provides that 'the commissioners and inhabitants of Southwark, and of any other of the incorporated districts and townships within the county of Philadelphia, may file liens for curbing, 'faring and repairing any footway within the same, and also very carefully provides for the collection' and enforcement of such liens.

It is therefore obvious that without the Act of 1865, the power of the city was ample to do what she proposes to do in the case in hand. .

In view, therefore, of this very full and complete pre-existingpower, it may be asked why was the Act of 1865 passed ? We ansAver, because in the outlying rural districts it might well be feared that the wants and conveniences of the'inhabitants thereof in the way. of street improvements, might be overlooked or neglected, and hence this act was intended as a spur upon the tardiness of the city authorities. The imperative character'of the act warrants this reading of it. When a majority of the property-holders petition for a paved footway, stating what kind of pavement they desire, “ councils shall, when such petition is received, direct the highway department of said city to notify the owners of property on said streets to have such footway paved in front of their premises,” &c. So by the fifth section, if a .majority of the property-holders neglect or refuse to move in the matter, any two citizens living upon said street may, by their petition and affidavit, set this power in motion.

Again, the intent of the reservation in the fourth section becomes obvious in this reading- of the act. The paving directed by the citizens is not to abridge the power of the city to order a repaving of the footwalks, when the grade of the cartway is finally settled and made under the city surveys. This is a wise reservation, for the primitive paving, produced by the petition of the landowners, may be of .a temporary character, or on grades that may be found • not to suit the grades of the cartways, and hence requiring radical alterations. This is our interpretation of this act, and whether we are therein correct or not, we certainly find nothing which abridges or curtails the power of the councils, as conferred by precedent acts, to grade, curb.and pave the footwalks in the Twenty-seventh ward. It matters not, ■ therefore, whether they were, moved t.o their proposed action by the petition of two citizens or by their own judgment; in either case, they were acting within the bounds of their own legitimate powers, and ought not to have been dis-. turbed in the exercise thereof.

And now, January 10th 1874, this cause came on for hearing on an appeal from-'the decree of the Court of Common Pleas for the city and county of Philadelphia, and was .argued by counsel, and, on consideration,’ it is ordered, adjudged' and decreed that the said decree of the said . Court of. Common Pleas be reversed and set aside; and. that the plaintiffs’ bill be dismissed at their costs.