Wistar v. Philadelphia

| Pa. | May 8, 1876

Chief Justice Agnew

delivered the opinion of the court,

What we have to deal with here, is the affidavit of defence. Does it set forth a sufficient ground to defeat the plaintiff’s recovery ? Want of power to impose the alleged liability is clearly a good defence. The question is not whether the legislature might authorize such a claim to be made, but whether this authority has been granted.

The original and supplemental affidavits are diffuse, setting forth many things unnecessary to be noticed. Premising that the claim filed is a naked charge for 121J feet of curbstone laid opposite the defendant’s lot, without circumstances stated, except that the work was done in pursuance of the ordinance of December 31st 1872, after adjustment of the curb line, and a contract made for paving the street, we may gather and condense the following facts from the affidavits of defence : That about three years before the new cm-bing was set, the footway opposite defendant’s lot had been well paved, and the curb set at his expense; that they were of proper and sufficient width, similar in style to those in other parts .of the city, and well done according to the laws and ordinances of the city; that they were in good order and condition, needing no repair or improvement, and no resetting, alteration or substitution; that the new curbing was no repair, but that the city chose, of her own purpose, to change the alignment of the curb and pavement, and to require a new and most expensive granite curb to be set on the new line, costing more than treble the expense of the former curb, without any allowance for the cost of the former curbing. On these facts the question is, did the laws conferring authority on the city to pave footways and curb them at the expense of the owners of the ground in front thereof, confer the power to set new and costly curbs on a new line at the expense of the owners ?

As remarked by Woodward, J., in City v. Tryon, 11 Casey 402: “ This is a power of special taxation, and must have explicit legislation to support it.” The property in question lies on Broad street, between Race and Yine, and is therefore within the old city. The only legislation to which we have been referred, or which I have found, is in the Consolidation Act of February 2d 1854, and in the 40th section, viz : “ That it may be prescribed by ordinance that paving of streets, except at the intersection thereof, and of footways, and laying water-pipes within the limits of the city, shall be done at the expense of the owners of ground in front whereof such work shall be done, and liens may be filed by said city for the same, as is now practised and allowed by law.” It may be conceded that curbing is a necessary part of paving to separate and support the footway from the cartway. It may be conceded also, that a general powrer to pave implies a power to repair and repave when the condition of the cartway or footway requires it; and of this primá, facie the city ofiBcers may judge. The affidavit asserts that this was not a repair but a new alignment and alteration of the curb. Then does the 40th section of the Act of 1854 confer a power at pleasure, to change, take up, alter, and relay pavements, and reset curbs, at the expense of the owner of the front, who has recently paid for a good pavement or curb ; and therefore to do this as often as the city may choose to alter its plans of improvement. Without referring to any power in the legislature to confer such an authority, the question is, is this the true scope and design of the legislation before us; is it the interpretation we should give to the section ? We think not. A power so onerous upon the citizen must be plainly conferred, if, indeed, it is not obnoxious to the charge that it is palpably oppressive and unjust. It is in derogation of the right of private property, seeking to lay a special tax on a small class of citizens. The foundation of this power, \ to tax specially, is the benefit the object of the' tax confers on the owner of the property. The law simply provides for the paving of streets and footways at the expense - of the front owner, What would any one ordinarily understand is meant by paving streets at the expense of the owners of the ground fronting thereon ? Clearly that paving which is customary.

An unpaved street is inconvenient and disagreeable, and property lying on it is less valuable. To remove these evils the city paves, and the owner whose property is thus benefited is required to pay for it. Such a law is not unjust, and as thus understood the legislature passes it and the courts sustain it. Being in this form, it is beneficial to the public and to the property owner. But if we say the city may change its pavements at pleasure, and as often as it please, at the expense of the ground owner, we take a new step, and there must be explicit legislation to authorize such taxation. If the 40th section were before the legislature on its passage, would any member suppose for a moment he was committing to the city a power to alter its pavements, take up, relay, experiment on one kind, then on another, and so toties quoties, as a change of views or of interests might dictate, and that this should be done at the expense of the ground owners, without their consent, and notwithstanding they had paid fully for that improvement of the street, which was the basis of their taxation ? Clearly no one would take such a meaning from the 40th section, or he would at least doubt this intent; and if doubtful it is not explicit. If, while the pavement is good and stands in no need of repair, the city may tear it up, relay, and charge the owner again with one excessively costly, it would be exaction, not taxation. Of course the city may change its plans of improvement, and experiment to suit the views of those in power, and if it be unwise, the corrective lies in the popular vote to remove those guilty of such folly and lavish expenditure. But under the 40th section no such changes and experiments can be made at the expense of the lot owners, who have no power to correct the evil. We are not at liberty to impute such a design to the legislature, unless it has plainly expressed its meaning to do this unjust thing. Whether the legislature can do so is not our question. We must not force the words of the law, but in these times of jobbing and corrupt practices adhere to the strict line of interpretation set before us by our predecessors. There must be explicit legislation to support special taxation. It was in this spirit Justice Woodward wrote in the City v. Tryon, supra, and in which he was led in City v. Hoxie, 2 Wright 339, to say, that there was no authority for the building of culverts within the old city, at the expense of the lot owners. See also Reed’s Ex’rs v. City of Erie, 29 P. F. Smith 346. For these reasons we think the defendant was entitled to a trial by jury of the facts set forth in his affidavit.

It is proper here to advert to the case of Lea v. City of Philadelphia, 1 Weekly Notes 189, see s. c. reported in 32 Leg. Int. 292, which was commented upon in the argument. That was a case of repair, having no bearing on this. It is proper to say that the obscurity supposed to exist in the opinion, does not exist in the original on file, but in the report, and is owing to the attempt to condense it by the reporter. The reported opinion certainly is not clear.

Judgment reversed and a procedendo awarded.

Additional opinion delivered May 22d 1876,

Per Curiam.

Since the filing of our opinion in this case we have been referred to the Act of 16th of April 1838, sect. 3, Pamph. L. 626, authorizing the councils of Philadelphia “ to make and establish so many rules and regulations as to them may seem expedient for the better regulation of porches, benches, door-steps, railings, bulk-windows, areas, cellar-doors,” and a large number of other subjects, proper for city regulation, concluding, “ and at the expense of the owner or owners of the property adjoining, to regulate, grade, pave and repave, curb and recurb, the said foot-ways or sidewalks,” &c. It is evident this section is no more than a collection and consolidation in a short compass of the various subjects of general regulation, and the provision for paving and repaving simply conveys tbe ordinary power for this purpose. It was not intended to subject the property of the citizens to arbitrary changes of policy, or of opinion, or caprice, which follow changes in councils, or in their views of improvement, We cannot suppose the legislature meant to convey any such extraordinary and oppressive authority. If it did, then the later Consolidation Act of 1854, must have been intended to restrict it. Johnson and Freeman’s Appeal, 25 P. F. Smith 96, is no recognition of the Act of 1838, as giving a wider grant of power; but as Justice Gordon remarks, the Act of 1854 is the nerve through which the city derives its power.

We perceive no reason to alter the opinion filed in this ease.