170 Pa. 108 | Pa. | 1895
Opinion by
The first question raised on this appeal is over the exclusion from the jury of members of the city councils of the city of Lancaster. It is a sufficient reply to this assignment of error that the ease presented on the trial in the court below no disputed question of fact for the decision of a jury. The defendant for this reason suffered no wrong because of the exclusion, if it had been erroneous, and under a long list of cases an error that works no harm to the party complaining is not a ground for reversing a judgment otherwise free from objection. But we see no error in the action of the court as it appears upon the facts of this case. The councils of the city of Lancaster represent the city upon all, subjects requiring delibei’ation, and their action is the action of the city. The items of this very claim had been presented to the city councils with a demand for payment thereof. The question of the liability of the city was thus distinctly presented to them for their official decision. They considered it. After consideration they decided it adversely to the plaintiff, holding that the items upon which a recovery is now sought did not constitute a valid claim against the city. The ground for the exclusion was not the simple fact that they were members of the city councils, but that as such they had been called upon to investigate and pass upon this identical claim ; and after investigation had officially determined that the claim was unfounded and that no recovery ought to be had upon it.
The remaining questions may be reduced to two in number: First. Is the city liable to reimburse the county when the pajrments made on its behalf by the county exceed its contribution to the road and bridge fund of the county ? Second. Are the proceedings in the several cases for which reimbursement is sought in this action sufficiently regular to support the claim against the city? The first of these questions was clearly presented in Lancaster County v. Frey, 128 Pa. 593, and distinctly decided in favor of the county. It was again presented in Lancaster County v. Lancaster City, 160 Pa. 411, and we followed and approved Lancaster County v. Frey, supra, holding that the 118th word in the third section of the act of 1854 should be read “ City ” instead of “ County.” We have, at the earnest request of the able gentlemen who represent the city in this
The county has made the entry on its own behalf in no single instance. Its duty has been to provide the machinery for laying out and opening roads and streets, and to pay the expenses incident thereto.
Second. All but two of the whole number of streets included in the plaintiff’s claim had been projected by the city and placed upon the city plan some years prior to the proceedings in the court of quarter sessions which resulted in the assessments of damage paid by the county under the operation of the act of 1854 and claimed for in this action. The streets were therefore city streets, laid out or plotted on the city plan by the city engineer; and such laying out was declared by the act of 1873 sufficient to establish the location and width of such plotted streets as public highways of the city. Third, the law cast the duty of payment of 'the assessed damages on the county in the first instance, and the further duty of opening an account with the city so as to ascertain whether the road taxes paid by persons and property within it were equal to payments made by the county on its behalf. The law also in express terms imposed on the city the duty to reimburse the county when the balance shown by the account, so to be kept, was against the city. Keeping in mind the relation of the city to its own laid-out
Under such circumstances it is no defense for the city to allege that the damages are too high, or that they might have been greatly reduced by evidence at the trial. The duty to take defense was on the city, and, if it neglected its opportunity it cannot now be heard to complain that the county has paid too much. It has paid just what the law required it to pay, viz, the damages due to private claimants from the city for the exercise of the right of eminent domain by the city in the laying out or widening of its own streets. It has paid these damages just when the law required it, when ascertained by the final order or decree of the court of quarter sessions of Lancaster county. It had no agency in, or responsibility for, the exercise of the right of eminent domain, or the ascertainment of the damages done thereby. Its responsibility began and ended with the payment for the city of the damages finally awarded by the court of quarter sessions to the claimant. The questions of regularity should have been raised by the city at the proper time when the report of the viewers was under consideration.
The city had notice of the proceedings. The reports of the viewers show this. If in any case they had no notice and injustice has been done for that reason, the remed}*- is an application to the court of quarter sessions to open the decree of confirmation and permit the proper defense to be now made. It cannot lie by, allow the report to be finally confirmed, paj-ment to be demanded from and made by the county, and then object when called upon to reimburse the county that it did not have notice of the proceedings pending for the opening of one of its own streets, and ought not thereby to be bound by the judgment standing in full force against it on the records of the proper court.
We decline therefore to enter upon the subject of actual notice to the city in this ease. A judgment has been rendered
The judgment is affirmed.