27 A.2d 419 | Pa. Super. Ct. | 1942
Submitted April 23, 1942. In this scire facias proceeding on a municipal lien, the trial resulted in a judgment for defendant. The plaintiff township, in this appeal, asserts that the lien is valid.
Plaintiff, a township of the first class in York County, by ordinance approved July 16, 1934, provided for the grading, curbing and paving of sections of Albemarle Street and Lancaster Avenue in a district which cannot be classified as rural. The ordinance authorized the construction of a macadam pavement of a uniform width of 30 feet in both sections of the improvement, with *582 curbing on both sides of each street, the cost of the improvements to be assessed according to the front-foot rule. The two streets affected run approximately parallel with each other and do not merge nor intersect at any point; the improvement on each was entirely separate and distinct from that on the other. Defendant owned land on each street; seven lots fronting 210 feet on Lancaster Avenue and five lots fronting 251 feet on Albemarle Street. A single assessment was made against all of his land abutting both improvements for the total cost of both pavements at the unit contract price and for all the curbing at its cost per lineal foot. The assessment included the proportionate cost of the grading of both streets lumped together, in the ratio of the frontage of all of his lots to the combined length of both improvements. The lien in question was entered upon the single assessment so computed. Lots of other owners with a frontage, in all, of 200 feet where curbing had been installed before this improvement, were not assessed for curbing. Another lot, owned by one of the township commissioners, with a frontage of 100 feet on Albemarle Street was wholly exempted from assessment for curbing, grading and paving. A pavement and curbing had been constructed in front of his lot, but only to the middle of the street (at the expense of the township) prior to the ordinance providing for the improvement of the remainder of Albemarle Street.
It is at once apparent that there were irregularities in the assessment and, therefore, in the lien. Some of them were validated by the Act of June 2, 1937, P.L. 1326 or other curative legislation; others, we think, were fatal. It is only where the omission to be remedied is an act which the legislature might have dispensed with by a prior statute that a curative statute may have retroactive effect. Malicks' Petition,
This is especially true where the assessment is by the front-foot rule which is but a practical substitute for determination of actual benefits and an assessment by viewers. Where that method is adopted a property may be made subject to a lien only by the proper exercise of powers conferred upon the municipality. The lien falls if it results from an assumption of powers not possessed. Of the rule, it, perhaps, has been best said by RICE, P.J., in Harrisburg v. McPherran,
In the light of these principles, the lumping of the entire cost of both improvements and assessing the lots on each street with a proportionate cost of the improvement of the other street, invalidates the lien. This manner of assessment was more than a formal irregularity. The amount of the required grading on each of the two streets was not the same; 4340 yards of material were removed from Lancaster Avenue and 2134 yards — about one-half that amount — from Albemarle Street to conform with grades established by the engineer. The lots on Albemarle Street thus were made to bear a part of the cost of grading Lancaster Avenue. It is fundamental that the cost of improving one street of a municipality, in whole or in part, cannot be imposed upon properties fronting on another street, though in the same neighborhood. The legislature is without power to authorize the levy of a purely local tax, for general purposes. Local assessments can only be made for improvements which confer peculiar local benefits upon property which adjoin theimprovement. In justifying any assessment for benefits it must be confined to the particular properties which do in fact abut directly *585
upon the line of the improvement. Morewood Ave. Chambers'sAppeal,
Moreover, there is nothing in the record to show that the township paid for any part of the improvement. The roadway in each street was paved to its full width without State or county aid. Under the Act of June 24, 1931, P.L. 1206, § 2060, 53 PS 19092, the township must be regarded as the owner of unassessable property and was obliged to pay the cost of paving street intersections.
Something might be said of the circumstances by which one of the township commissioners wholly escaped payment of his share of the cost of the improvement. It is a fair inference that the original cartway along his lot was at the grade later established by the engineer. When the general improvement was completed, his lot benefited by the whole improvement. The ordinance placed the cost without exceptions, upon owners abutting the improvement "byequal assessment." However, whether his lot must be regarded as abutting the improvement and liable to assessment under the rule of Scranton v. Koehler,
In this case there was no attempt on the part of the township to amend the lien to the extent authorized by the Act of May 16, 1923, P.L. 207, 53 PS 2054. Cf. Allentown v. Ott,
It undoubtedly is the duty of the court to give effect to a lien where there has been substantial compliance with the law, recognizing that every citizen should bear his just share of taxes imposed. But where, as here, a municipality exceeds its powers, it is just as much our duty to declare the assessment invalid. Harrisburg v. McPherran, supra.
The judgment is affirmed.