147 Pa. 461 | Pa. | 1892
Opinion by
The. subject of complaint in each of the first five specifications of error is the rejection of the respective offers of evidence therein recited.
There was no error in refusing either of these offers, for the reason that the proceedings leading up to the alleged assessment, for the recovery of which this suit was brought, were incurably defective in their very inception. The ,47th section of the act of May 23, 1874, P. L. 259, after providing that any city of the third class may divide the same into sewer districts, and direct the city engineer to make an estimate of the costs and expenses of constructing any main sewer, or reconstructing the same, and report to the councils what portion of said costs and expenses is required for main sewerage, and what portion of the same is required for local sewerage, for any lots
It will be observed that the act confers no authority to appoint viewers until after councils shall have determined by ordinance “ to make an assessment for main or local sewerage, or both, according to benefits.” By the terms of the act, as well as in the very nature of things, the determination of councils to make an assessment according to benefits — evidenced by ' the passage of an ordinance to that effect — -is a prerequisite to (the exercise of authority to appoint viewers; and there are ^ good and sufficient reasons why it should be so. Until such s determination of councils is officially declared by ordinance, 1 property owners, to be affected by an assessment according to ■ benefits, are necessarily ignorant of what councils may do, and__
It is an easy matter to follow the plain provisions and requirements of the act, and the sooner municipal authorities realize the necessity of doing so, the better it will be for all concerned. When that is done, less of our time, and the time of the local courts, will be unnecessarily consumed in abortive attempts to correct inexcusable blunders.
The sixth specification, “The court erred in allowing the motion for a nonsuit,” is a nullity. Error does not lie either to the entry of a compulsory nonsuit, or to the refusal to enter such judgment; it lies only to the refusal of the court to take off the nonsuit: Borough of Easton v. Neff, 102 Pa. 474; Handley v. R. R. Co., 10 W. N. 8; Millcreek Twp. v. Perry, 20 W. N. 359; Borough, etc., v. Erdman, 21 W. N. 553.
It was no doubt the intention of the learned counsel for appellant to specify as error the discharge of his rule to take off nonsuit; but, if he had done so, it would have been of no avail. For reasons already suggested, in disposing of the first five specifications, the rule was rightly discharged.
Judgment affirmed.