111 Pa. 604 | Pa. | 1886
delivered the opinion of the court, February 15th, 1886.
This is a scire facias upon a municipal claim, filed by the city of Philadelphia, to the use of Joseph Johnson et al., against all that certain lot of ground in said citj;, whereon the building, No. 1009 Market Street, is erected, and of which
Market Street, in front of defendant’s premises, was then, and for many years had been, a highway of the city of Philadelphia, paved- with cobble stones in accordance with the manner in which most of the streets of the city were and are paved, and the sidewalk in front of defendant’s premises was supported by a curbstone, well and properly set, at defendant’s expense, on the proper line, in accordance with the style in common use, and was in good order and repair. A contract was entered into between the city of Philadelphia and the claimants, Johnson, Holgate and Horter, for the paving of the cartway of Market Street with Belgian blocks, and said pavement was duly laid. The defendant having neglected to comply with notice given to replace his curb with a new cut granite curb, the Highway Department ordered and directed the claimants to set such curb, which was accordingly done by them, and for the price or charge thereof this claim was filed.
The curb is placed at the outer edge of the sidewalk, and serves to hold the pavement in place; it is therefore on the line of the sidewalk and of the cartway. From the facts admitted it appears, however, that the re-curbing, under the ordinance, was required, not as a repair or re-paving of the sidewalk, but as incident to the repairing of the cartway. The property owner, Mr. Wistar, was required by this ordinance, by reason of the re-paving of the street by the city, to take up a curbstone which he had previously set, and with which no fault could be found, and to substitute for it a more costly one of a particular kind, in order to add to the appearance, or to the efficiency perhaps, of the pavement which the city had seen proper to put upon the cartway; and for his default in so doing the citj'- seeks to charge him with the cost.
In Hammitt v. Philadelphia, 15 P. F. S., 146 ; Washington Avenue, 19 P. F. S., 364, and other cases, it has been held that the repairing of the streets of a city, being for the general good, is the duty of the municipality, and that the expenses cannot be provided by local assessment. This doctrine has recently been greatly emphasized in the case of the appeal of the Protestant Orphans’ Asylum, 43 Leg. Int., 59, where it was held that an Act of Assembly allowing this species of local taxation is unconstitutional.
In the case at bar the alignment of the curb was not changed, the defendant was simply required to lift the curb then in place, and set another and a different kind in the same place; and if the city cannot require the re-setting of the curb when the curb line has been changed and the footway widened, it is difficult to see how the power can be exercised when the line is unchanged. When the city may see proper to require a still different curb, to take the place of the cut granite, must depend of course, upon the judgment or caprice of the city councils, and it seems reasonable and just, if such a requirement shall be made when no repairs are needed, that the city should pay the price. If the law was correctly stated in Wistar v. Philadelphia, supra, this lien cannot be sustained, and we see no reason why the rulings in that case should not be adhered to.
Judgment re versed.