1871 Pa. LEXIS 302
Pa.
1871

The opinion of the court was delivered, October 23d 1871, by

Sharswood, J.

It is not disputed that Mahon street, for grading which the municipal claim in this case was filed, is within the territory comprehended in the terms of the proviso to the 11th section of the Act of April 1st 1868, Pamph. L. 567, which declares that no street or highway shall he opened, graded or paved in any part of the territory consolidated with the city of Pittsburg, under the Act of April 6th 1867, “unless upon the written application of a majority in interest of the owners whose property is situated or abuts thereon.” To the scire facias upon the claim filed the defendant pleaded nwnquam indebitatus. To this the plaintiffs did not demur, but went to trial upon it. It must be considered now, as it imports by its terms, that it put in issue whatever facts it was incumbent upon the plaintiffs to prove in order to support the assessment made upon the property of the defendant. There may not in strictness be any general issue in a scire facias upon such a claim, and the defendant ought perhaps to traverse by special pleas all the facts essential to the case of the plaintiffs. But if that were done it would not shift the onus probandi. It is not like an affirmative plea of payment — which is in confession and avoidance — which to a scire facias upon a mechanic’s claim was held in Lybrandt v. Eberly, 12 Casey 347, not to put in issue the formal validity of the lien. Nwnquam indebitatus is a traverse — a negative plea — not indeed as comprehensive as non assumpsit, for payment or a release could not be given in evidence under it — but nevertheless it is a denial of the plaintiffs’ cause of action, and therefore not within Van Billiard’s Administrator v. Nace, 1 Grant 233. The main question then recurs, unembarrassed by the particular form of pleading adopted, whether it was incumbent on the plaintiffs to prove affirmatively that Mahon street had been graded upon the written application of a majority in interest of the owners of property situated or abutting thereon. This question must now be considered as put at rest by the decision of this court in The Commissioners of Kensington v. Keith, 2 Barr 218, in which a proviso to an Act of Assembly, conferring a similar power of assessment, declared that the curbing should “ be not less in length than one nor exceeding three squares at once.” It was held to be a limitation of the power of the municipality — that it did not affect merely the regularity of the proceeding, but the jurisdiction. “ That the restriction,” said Mr. Justice Rogers, “assumes the form of a proviso cannot alter the ease, as the intention of the legislature, which furnishes the only safe rule, is too plain to admit of question or dispute. The proviso is a limitation of power, and amounts to a negation of all authority beyond its prescribed and clearly-defined limits. It cannot be that the proviso is directory merely, as that would be to set at nought all the guards provided by the legislature against the abuse of authority conferred by the act. It is *368in truth a question of power; and how a corporation, municipal or pecuniary, can acquire a right of action against a citizen, however humble, by a palpable usurpation, passes my comprehension.” In the ease now under consideration, the Act of Assembly declares that no street shall be opened, graded or paved unless upon a written application of a majority in interest of the owners of property abutting on the street. Without such application the city had no power or jurisdiction in the premises. It follows that the maxim omnia jorcesumuntur rite esse acta cannot be invoiced. That principle heals only apparent irregularities or omissions where jurisdiction or power over the subject-matter is clearly vested in the tribunal or body. When jurisdiction is proved or admitted, then, indeed, the presumption is that all mere directory provisions of the law have been substantially followed: Fowler v. Jenkins, 4 Casey 176.

Judgment affirmed.