Scranton v. Koehler

14 Pa. Super. 1 | Pa. Super. Ct. | 1900

Dissenting Opinion

W. D. Porter, J.,

dissenting:

That no assessment can be made, nor lien filed, by a municipal corporation to enforce the payment of municipal charges unless in the manner authorized by statute is well settled: Philadelphia v. Gratz, 38 Pa. 339; Mauch Chunk v. Shortz, 61 Pa. 399; McKeesport Borough v. Fidler, 147 Pa. 532. That the street in question in this proceeding was located within the built-up portion of the city of Scranton is not disputed. When it came to paving this street, therefore, the improvement might have been undertaken and the assessment of benefits made upon the abutting property under the provisions of either one of two acts of assembly, viz: the Act of May 16, 1889, P. L. 228, or the Act of May 16, 1891, P. L. 75. The former act provides a code for government of cities of the third class, and under its provisions the expense of paving may be charged, in whole or in part, on the city, or on real estate bounding on the street paved, according to the “foot-front” rule. No manner of making the assessment other than by the foot rule is authorized by this statute. Under the terms of the Act of May 16, 1891, the assessment for such an improvement is made upon the basis of peculiar benefits to the property, without exclusive regard to its frontage, to be ascertained by viewers appointed by the court, from whose report an appeal lies and a jury trial may be had. If the persons interested desire the improvement to be made upon the basis of liability according to benefits, they will proceed under the act of 1891; but if they wish the foot-front rule applied, they will follow the line of procedure marked out by the act of 1889 ; the alternative is for the lot owners to settle: Hand v. Fellows, 148 Pa. 456. The case stated shows that the requisite number of owners, representing the required frontage on the street, presented a petition, in due form, to the councils of the city, praying that the street be paved and the cost of the improvement assessed against abutting property owners according to the foot-front rule. This was an election by the property owners to proceed under the act of 1889, and that the assessment upon the properties when made should be in accordance with the terms of that statute. This petition vested in the city authorities jurisdiction to order the improvement to be made, enter into a contract for the performance of the work and assess the costs thereof upon the abutting property under the foot-front rule. The councils of the city, in pursuance of the terms of the petition, by an ordinance duly approved by the mayor, ordered the work to be done, provided for the payment of the cost and expense thereof by the abutting owners according to the foot-front rule, entered into a contract for the performance thereof, and authorized the city engineer to make the assessments upon abutting property according to the foot-front rule. The contract was duly certified by the proper officer and all the requirements of the various acts of assembly touching such contracts and the execution of the work were accurately complied with. The city engineer made the assessments in accordance with the provisions of the act of 1889, and of the ordinance authorizing the work, in accordance with the foot-front rule. The defendant’s property abutted on the improvement and was assessed according to its frontage, at the same rate per foot which was applied to every lot upon the entire line of the street. The appellee seeks to escape the operation of the foot-front rule, upon the ground that a part of the street in front of his lot was occupied by a double tracked street railway, which had been paved by the company operating it, and therefore there was not so much work done immediately in front of his place as was done in front of some of the other lots which had the same frontage.

The learned judge of the court below, while of opinion that the weight of judicial and text book authority outside of Pennsylvania was adverse to the contention of the appellee, felt constrained, by certain Pennsylvania authorities, to cut down this assessment and charge the defendant upon a basis which is not authorized by either of the acts of assembly under which there was any authority to make an assessment, the judgment entered being upon the basis of the supposed cost of the work done in the street immediately in front of this particular lot. The conclusion at which the learned court below arrived is not, in my opinion, sustained by the cases relied upon. The case of McGonigle v. The City of Allegheny, 44 Pa. 118, which is thought to sustain the position of the appellee, must be considered in the light of the case stated, upon which the court passed. The street in question there was one which from end to end was upon one side bounded by the east common, and on the west side by private property. The title to the common was in the city, subject to the right of common in the owners of in-lots. The improvement was made under an act which authorized the city to grade and pave streets, and to levy and collect a special tax for defraying the expense thereof “ by an equal assessment on the foot front bounding on said street.” It was decided that the east common, the title to which was in the city, was not assessable, and that the entire cost of the improvement must be collected from the properties wliich were assessable. In no sense can that case be said to hold that each property must pay for the cost of the work done immediately in front thereof. The cases in which our Supreme Court sustained judgments entered in default of a sufficient affidavit of defense, cited by the learned court below, were not in any sense attacks upon the manner of assessment: Erie City v. Butler, 120 Pa. 374; Pittsburg v. MacConnell, 130 Pa. 463; Harrisburg v. Baptist, 156 Pa. 526. It is true that in the first named case Mr. Justice Paxson, who delivered the opinion of the court, did use the expression: “ All that the defendant is called upon to pay for is the pavement in front of his own property. He does not allege any special defect in this portion of the work, except in his reference to the work on the street generally.” This expression was used in discussing the allegations of the defendant that.there were defects in tbe work, and had no refence whatever to the manner of making the assessment. The allegations of defect were held to be too general, and upon the authority of Pepper v. Philadelphia, 114 Pa. 96, it was said that “ if the work was substantially done as contracted for and answered the purpose intended, but in some minor particulars, which did not materially affect its usefulness, the contractor had failed, then the property owner might have a deduction for such failure.” The expression above quoted is not to be wrested from its context and made to declare the principle that assessments for paving are to be made in accordance with the cost of the pavement in front of the property. The same expression was used in the other two cases cited, under the same circumstances and in the same connection, but the views of Mr. Chief Justice Paxson are clearly indicated in Pittsburg v. MacConnell, in speaking of the defense of defective workmanship : “ If deficient in some minor particulars, the defendant can only have a deduction for such defects. Here the defendant does not say to what extent she has been injured by the defective work. She says the work was let at a high price, but is silent as to what would have been a fair price therefor.” Thus understood, the expressions by which the learned court below was led to the conclusion that the cost of paving in front of each particular lot was to be assessed against that lot, without regard to the cost of paving in front of other lots, were pertinent to the cases in which the expressions were used, but if they are to be given the meaning attached to them by the court below they are to be considered as mere dicta. The two other cases relied upon to sustain the contention of the appellee are Witman v. City of Reading, 169 Pa. 375, and Park Avenue Sewers, 169 Pa. 433. In the former case the city of Reading had, by ordinance, constituted a sewer district, and provided that a certain portion of the cost of main sewers, as well as the cost of all lateral or branch sewers, should be aggregated and assessed upon the properties abutting on the various lateral sewers according to the foot-front rule. These lateral sewers were necessarily of different sizes and the cost of construction was necessarily influenced by the various localities in which they were situated: the construction of some would involve deep excavations, perhaps, through solid rock, others would have to be carried above the natural grade of low ground, and the cost of one was no criterion whatever upon which to estimate the cost of the construction of another. These lateral sewers were not necessarily connected with or dependent upon each other. It was, therefore, manifest that under the system of assessment provided by this ordinance the small lateral sewers and those of inexpensive construction were paying for a part of the' construction of the larger and expensive lateral sewers, from which they derived no benefit whatever. It was held that the ratio of cost made up of the average of these sewers was not an accurate measure of any one of them. When Mr. Justice Mitcheux, speaking for the court in that case, said, “ If the cost is only $1.00 a foot, that is all that can be assessed on the property, though the benefit may be equal to $2.00 a foot, ’ the expression is to be taken as applying to the system, and meant that if the cost and expense of a lateral sewer amounted to only $1.00 a foot front upon all the property legally assessable, that the city could collect no more. It is a well-settled rule that the city cannot collect assessments which in the aggregate exceed the cost of the improvement, and thus make a profit out of the work. The case of Park Avenue Sewers decided that a property owner could not be assessed with the cost of a fifteen-inch main sewer, when the facts agreed upon by counsel showed that a ten-inch local sewer would have been sufficient to give the property all the benefit it derived from the improvement. This decision was put upon the ground that such an assessment was contrary to the express terms of the act of 1891, section 8, by which the costs and expenses are to be assessed according to benefits, if sufficient property benefited can be found. And for the further reason, that “ the limit of special benefit is the limit of liability to special assessment.” Neither of these cases afford any basis for the contention that each property is to pay for the work done immediately in front of it. The meaning of these cases is that the cost of each sewer must be ascertained separately and the assessments therefor made upon the basis of the special benefits resulting to the-properties liable under the statutes. There is no suggestion in either of the cases that where the construction of a lateral sewer has on one part of its line met with unusual difficulties and involved extraordinary expenditures, that all of those expenditures must be met by the owner in front of whose property the obstacle was encountered, leaving other owners in, perhaps, the same square to pay only for the comparatively small expenditure involved in front of their respective properties. The proceedings for the assessment in the case of the Park Avenue Sewers, above cited, were under the Act of May 16, 1891, P. L. 75, sec. 8, which also applies to the grading of streets. Can it be for one moment contended that when a street is graded the owner must pay for the amount of grading done in front of his particular property ? If so, the property least benefited is certain to pay the highest assessment, for the property which lies practically at the established grade would have little or no work done in front of it, while the properties upon which there were heavy fills or deep cuts might be called upon to pay assessments which would simply amount to confiscation.

The principle of taxation upon which assessments upon property abutting upon a public improvement are sustained is, that such properties have from the improvement received a benefit which is peculiar to them, as distinguished from the benefits which accrue to other properties within the municipality not so situated. If the case is within the principle, the proportion of contribution and other details are within the discretion of the taxing power. Learned jurists have differed as to the convenience or fairness of the different methods of ascertaining the proportion of contribution to be made by owners of abutting property. Mr. Justice Sharswood, in Hammett v. Philadelphia, 65 Pa. 146, expressed a preference for the system which adopted the foot-front rule, while Mr. Justice Mitchell, in Witman v. Reading, supra, declared a preference for the rule based upon difference in market value of the property before and after the improvement. Both of the learned justices -unite in the declaration that “ no system of taxation which the wit of man ever devised has been found perfectly equal.” Whatever rule is adopted by the taxing power, it must be general, certain and uniform, and must apply to all who are under the law liable to the assessment: Hammett v. Philadelphia, supra; Witman v. Reading, supra; Harrisburg v. McCormick, 129 Pa. 213. A city cannot subject its citizens to a legal obligation except by the lawful exercise of its powers, and if the law prescribes the manner in which a corporation or its officers must act, they must follow the requirements of the law under which they propose to act: Athens Borough v. Carmer, 169 Pa. 426; Fell v. Philadelphia, 81 Pa. 58.

The property of the appellee fronted upon this improvement. It is conceded in the case stated that it was subject to assessment for the improvement. The only question involved is the amount which, under the law, he ought to contribute. The pavement was petitioned for, ordained by the city, contracted for and the work done under the provisions of the act of May 23, 1889. The city clearly had jurisdiction to enact the ordinance, contract for the improvement and make the assessment. The work is admitted to have been done in accordance with the contract and specifications. In accordance with the provisions of the 31st section 'of the Act of May 23,1889, P. L. 277, 327, councils authorized the city engineer to make the assessments. The foot-front rule may not be the best which could have been devised for making assessments for street improvements of this character, but it was the only one that this city engineer had jurisdiction to apply; he was bound by the terms of the act of assembly under which the improvement was made. By force of the petition presented to councils and the ordinance passed by said bodies, in accordance with the provisions of the act of assembly, this improvement was made at the expense of the owners of real estate abutting thereon, “ by an equal assessment on said property in proportion to the number of feet the same fronts on the street.” The city engineer made the assessment in strict accordance with the law under which he acted, and the result was that the property of the appellee was assessed in the sum of $286, said amount being in proportion to the number of feet which his property fronts upon the street. This was an assessment made in pursuance of law, is final and conclusive and cannot again be reviewed by any other tribunal : Hammett v. Philadelphia, 65 Pa. 146 ; Commonwealth v. Woods, 44 Pa. 113. The law had in this case fixed the manner in which the peculiar benefits to the property were to be ascertained, and it was not within the jurisdiction of this city engineer or any other tribunal to set aside the legislative mandate. It was not for the city engineer to inquire what that part of the improvement in front of this particular property had cost. If, because of the difficulty of procuring the foundation, or because of the distance which materials had to be transported, this particular piece of pavement had cost twice as much per square yard as any other part of the improvement, the assessment on this particular property could not have been increased; the property was entitled to the protection of the foot-front rule. The property of the appellee was benefited by the improvement as a whole. The small patch of pavement in front of his house would have been of very little benefit to him, or anybody else; but when the entire street was well paved, affording a safe and convenient means of travel upon the roadway to and from the property, the benefits to the property were made manifest. This property was, therefore, within the principle which supports special assessments for special benefits, and being within the principle the proportion of contribution was within the discretion of the taxing power, and the taxing power has enacted and ordained that the property shall be assessed in proportion to the number of feet it fronts upon the street. The assessment by the city engineer is sustained by statutory authority. The assessment made by the learned court below is without any statutory authority whatever. The city authorities were, by statute, vested with jurisdiction in the premises, and in the absence of any allegation of fraud, or defects in the work, or that the engineer had exceeded his jurisdiction in assessing the appellee upon a greater frontage than he owned, I am of opinion that the assessment made by the engineer was conclusive. For these reasons I would reverse the judgment of the court below and enter judgment against the appellee in the amount of the assessment made by the city engineer.

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Lead Opinion

Opinion by

William W. Portee, J.,

The learned judge of the court below has written an exhaustive and able opinion. After a review of the cases in states other than Pennsylvania, he reaches this conclusion: “ Upon the strength of these authorities as well as upon principle, we should have no hesitation in holding that the method of making a local assessment, which they advocate, is, at least as a general rule the true one, and that is, that the improvement is to be treated as a whole, the whole cost of it being distributed among the properties abutting thereon, according to benefits, which, if estimated by the foot-front rule, are to be measured not by the extent or cost of the improvement in front of each property, but by the proportion which the lineal frontage of each bears to the whole frontage of the improvement.” He then proceeds to an examination of the decided cases in Pennsylvania and concludes that they in a measure sanction the converse doctrine, and that the peculiar conditions attending the work to be done in the case of a particular property assessed on the foot-front rule, may be regarded in fixing the amount of the assessment as to that property.

We have considered the cases cited by the court and by counsel, including the elaborate opinion in the case of the City of Shreveport v. Prescott, 46 L. R. A. 193, with the note appended thereto. Some of the cases cited by the learned judge of the court below may be susceptible of a construction different from that put upon them by him, but having regard to the trend of the Pennsylvania decisions, we affirm the judgment upon the opinion of the court below and upon the facts of the case now before us.

Judgment affirmed.