14 Pa. Super. 293 | Pa. Super. Ct. | 1900
Opinion by
Borbeek street was duly opened as a public highway, on the natural grade of the surface, through the lands of defendants, in 1893. In February, 1894, an ordinance was duly passed authorizing and directing the proper department of the city government to grade the street to the established grade'of the city, and construct the necessary sewers or drains. The ordinance contained this provision, viz.: “ The owners of property fronting on said street shall grade, curb and pave their sidewalks.” The city on May 1, 1894, before any contract had been let for grading the cartway, served a notice on the defendants to grade the sidewalk. On May 23,1894, the city entered into a contract with the use plaintiff for the grading of the street from building line to building line, which contract contained this provision: “ Payments for grading the roadway of the said street shall be made in city warrants, drawn on the city treasurer by the chief of the bureau of highways .... and payments for grading the footway shall be made in assessment bills, prepared in accordance with the provisions of the ordinance, approved July 3, 1893.” The ordinance of July 3,1893, referred to provides : “ Whenever councils shall direct the grading of any street or highway, as provided in section 1, it shall be the duty of the director of the department of public works, immediately upon the awarding of such contract, to notify the owners of property on each side of said street, or highway, to grade the footways of full width to the established grade of the city, so that the same shall be unimpeded and safe for public travel, and in case of neglect or refusal of said owner or owners to comply with the said notice the director of the department of public works shall cause the work to be done under the contract aforesaid.” The ordinance further provided that upon the completion of the work the director should be authorized to estimate the cost and expenses for the grading of said foot-ways, including the filling of slopes necessary to retain the foot-ways, and assess such cost and expense against the properties in front of which the work had been done in the name of the registered owner or owners thereof. Under the terms of the contract the use plaintiff had a right to use the name of the city in filing liens and collecting the claims. In grading through the lands of the defendants a cut of from three to five feet was
At the trial the defendants produced evidence as to the nature and surroundings of the property which would have certainly justified the finding by the jury that the property was rural in character. The learned court below was led to the conclusion that this evidence was so overwhelming and clear that it was for the court, as a matter of law, to pass upon the character of the land, and accordingly withdrew the case from the consideration of the jury and directed a verdict in favor of the defendants. That line of cases which followed Washington Avenue, 69 Pa. 852, and Seeley v. Pittsburg, 82 Pa. 360, has so firmly established that the foot-front rule for the assessment of the costs of municipal improvements, when applied to rural property, is unconstitutional, that discussion is unnecessary. The question whether the property sought to be charged is urban or rural is, however, usually one of fact, to be determined by the jury: McKeesport v. Soles, 165 Pa. 628; 178 Pa. 363; South Chester Borough v. Garland, 162 Pa. 91. These cases affect only the manner of the exercise of the power of taxation. The assessment in this case was not made in accordance with the terms of any statute authorizing taxation; it is not pretended that the benefits were ascertained in accordance with the foot-front rule, or with the rule based upon difference in market value of the property before and after the improvement. The assessment is for cost of the work done immediately in front of defendants’ land, and, in the absence of a. statute authorizing such assessment and the' filing of a liem therefor, it cannot be sustained as an exercise of the taxing' power of the municipality: McKeesport v. Fidler, 147 Pa. 532; Fell v. Philadelphia, 81 Pa. 58; Athens Borough v. Carmer, 169 Pa. 426.
The liability which it was sought to impose upon the prop
The weakness of plaintiff’s case consisted not in the character of the property which it was attempted to charge, but in the lack of authority to assess any property, in the manner here proposed, for the cost of such work as that covered by this assessment. The delegation of the police power, to impose upon property owners duties such as those attempted to be exacted of these defendants, must come from the commonwealth.
Many acts of assembly have been passed which invested the city of Philadelphia with power to regulate its streets and highways, but those which have a bearing upon the question now under consideration, as cited by counsel and discovered by our own researches, are not numerous. The act of March 25, 1805,4 Sm. L. 232, authorized the city'to make ordinances, and among other things provided, that: “Whenever the cartway of anjr street, court or other passage shall be regulated, shaped and formed, or when so formed and laid with gravel or other hard substance, in either of those cases the owners of the several lots which are bounded upon or adjoining any such street, court or other passage shall be obliged to form or shape or lay with hard substance or gravel the respective footways opposite to their several lots, in such manner, at such time, and under such penalties as shall be directed by the said ordinances.” The
" The Act of April 16, 1888, P. L. 626, authorized the councils of the city “to make rules and regulations for the better regulation of porches, porticoes, benches, doorsteps, etc., or other device or thing, projecting over, under, into or otherwise occupying the sidewalks, or other portion of any of the streets, lanes and alleys; in relation to boxes, etc., placed on said foot-ways ; . . . . and at the expense of the owner or owners of the property adjoining to regulate grade, pave and repave, curb and recurb, the said footways or sidewalks; . . . . and the same to enforce by suitable penalty or penalties, and the expense of paving and repaving, curbing and recurbing, as aforesaid, shall be recoverable before any alderman of said city, or before any court having jurisdiction, in the same manner as debts of like amount are by law recoverable.” If the claim of the appellant can be sustained, it must be by virtue of this enactment. The power thus granted to the municipality to regulate sidewalks is to be restrained only by the constitution and laws of the commonwealth, and common law, which requires the by-laws of a corporation to be reasonable and not a burden without some fair equivalent. It was clearly the intention of this legislation to confer upon the city the power to regulate the sidewalks of existing streets, and the authority which it conferred to regu
The Act of April 16, 1840, P. L. 410, sec. 9, affords no foundation for any claim against property, or the owners thereof; it simply provides a remedy for the enforcement of claims authorized by other legislation. The Consolidation Act of February 2, 1854, P. L. 21, preserved the powers then vested in the municipality, and brought within the operation thereof the territory which became incorporated with the city. The 40th section of that act imposes upon owners of property the burden of paving the footways, but confers upon the municipality no authority to make an assessment for grading thereof.
It may well be doubted whether an act of assembly which authorized a municipality, when grading a street, to divide the work into three longitudinal sections and grade the cartway out of the common fund, while compelling lot owners on either side to pay for so much of the grading of the street as came within the lines of the sidewalks, could be sustained as a constitutional delegation of police power. The ground upon which the imposition of the cost of the construction of sidewalks upon the owners of property is sustained as a police regulation, is that the owners of adjacent lots have a peculiar interest in those sidewalks. “When this is done, the duty must be looked upon as being enjoined as a regulation of police, made because of. the peculiar interest such owners have in their walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state and of after-wards keeping them in a condition suitable for useCooley on Taxation, 398. This burden may fairly be presumed to be
Judgment affirmed.