156 Pa. 107 | Pa. | 1893
Opinion by
Under the act of May 23, 1889, for the incorporation and government of cities of the third class, article 5, sec. 3, clause 10, P. L. 288, the councils are authorized to direct by ordinance the paving of streets, etc., but if the cost is to be paid by the abutting property owners, certain conditions are attached to the manner of exercising the municipal authority, one of which is that the paving, etc., shall be petitioned for by a majority of the owners, or the owners of a majority of the feet front on the street. And by article 15, sec. 26, of the same act, P. L. 325, where the paving has been petitioned for, “ the passage by councils of any ordinance directing the paving .... shall be held to be conclusive of the fact ” that the necessary majority of owners have petitioned for it. Under these provisions of the statute the only defence upon this point open to a property holder against a municipal claim for paving is that there was no petition. The affidavit _ of appellant does hot set up any such defence. On the contrary it expressly avers that there was a petition but it was not signed by a majority. That fact was not open to dispute. The argument of appellant on this branch of the case is really an argument against the policy of such a provision. With that we have nothing to do.
The language of the act is perfectly plain and can have but one interpretation. No authority therefore is necessary, but, if it were, the cases of Erie v. Bootz, 72 Pa. 196, and Olds v. Erie, 79 Pa. 380, would be ample, for the language there held to shut out the question was much less certain and mandatory than here.
But it is argued, the act also provides that no such ordinance shall be passed until five days notice shall be given by advertisement ; that this is a question of fact, which cannot be assumed on a motion for judgment; and that the provision of article 15, sec. 22, P. L. 324, that claims “shall be prima facie evidence of the amount thereof, and of the same being due and owing, and of all matters therein set forth,” cannot be extended to cover matters of this kind concerning the manner in which an ordinance has been passed. The claim, which is filed as part of plaintiff’s, statement of its cause of action, recites the fact that the ordinance was petitioned for, and that the petition
The averment in paragraph two of the affidavit that the city of Scranton has no interest in the action, its contract with the use plaintiff, the paving company, limiting its liability to the amount of the.claims recovered against the property owners, is irrelevant and immaterial, but it takes all the force out of the objections raised by paragraphs four and five against the ordinance and the resolution awarding the contract to the use plaintiff. As no liability was imposed by the contract on the city, no provision for indebtedness was necessaiy, and the contract could as well be awarded by resolution as by ordinance.
Judgment affirmed.