Craig v. City of Philadelphia , 89 Pa. 265 ( 1879 )

Mr. Justice Woodward

delivered the opinion of the court, May 7th 1879.

A contract was made between W. W. Dickinson and the City of Philadelphia, on the 26th of November 1872, in which Mr. Dickinson undertook “ to grade, curb and pave Market street, from Forty-third street to the eastern end of the bridge over Cobb’s creek, at Sixty-third street.” The work was done, and after its completion, this proceeding was begun to enforce payment by Robert Craig, the defendant below, of the sum assessed on his property as his proportion of the cost. The claim was filed against a lot of ground on the south side of Market street, having a front on that street of three hundred feet, and extending in depth two hundred and fourteen feet to Ludlow street. The authority to make the contract, and the right to enforce the lien against the defendant’s land, are rested on the provisions of the Act of the 5th of April 1870, by which it was made the duty of the chief commissioner of highways, immediately after the interest of the West Chester Plank-road and Turnpike Company in the road-bed of Market street, should be surrendered to the city of Philadelphia, “ to proceed by giving due notice to property-owners along the line of said Market street,” between Forty-third and Sixty-third streets, “and by all other requisite proceedings, to open the said street between the points named to the full width as laid down on the plan of the city, and to grade said street, and to enter into, a contract with a competent paver to curb and pave the same; said contractor to collect the costs thereof, except the paving of intersections, as by law and ordinance provided.” A verdict was rendered and a judgment entered in the Common Pleas for the full amount of the plaintiff’s claim.

At the trial three offers were made on behalf of the defendant, and were rejected by the court. The first and second were propositions to prove that the defendant’s “ premises, against which this claim was filed, are situated in a rural district in the city of Philadelphia, and that a large part of Market street, from Forty-third to Sixty-third street, passes through rural and farm property, now used for farm purposesand “ that all the property fronting on Market street, from Forty-third to Sixty-third, not exempt from taxation, is assessed as such rural property and farm land.” It was decided in the case of Washington Avenue, 19 P. F. Smith 352, that an Act of Assembly authorizing a local assessment for a general public benefit was unconstitutional, and that, while the assessment of a tax for improving streets in towns, in proportion to the frontage on the street, is a reasonable exercise of the taxing power according to the benefits received, yet such a rule applies only to cities and large towns, whe^e, from the density of the population and the small size of the lots, there is a reasonable certainty of arriving at a true result. In Seely v. The City of Pittsburgh, 1 Norris 360, which was a scire facias on a municipal claim for frontage tax, the facts were disclosed in a case stated. It was agreed that the line of the highway ran in part through the rural or suburban part of the city, and that the defendant’s premises were situated in that rural district. The Act of the 2d of April 1870, which had provided for the improvement and authorized the assessment, was held to be unconstitutional, so far as it applied to lands in such a district. “ The blending of town and country, of city lots and farm lands,” was pronounced by Agnew, C. J., to be “ so plainly, palpably, rankly and ruinously unjust” as to be “ void as against the right of property as protected by the Bill of Eights.” These cases have been followed in Kaiser v. Weise, 4 Norris 366, and recognised in Bidwell v. The City of Pittsburgh, Id. 412. A rule of law settled by this court, in the Western District of the state, must necessarily prevail as a rule of law in the Eastern District. The evidence was legitimate and should have been received.

The third proposition was to prove “that the widening of Market street was not called for by any reason, save as a public imr provement, and to keep a grand avenue through the city of a uniform width to.the Delaware county line.” Perhaps the terms of the offer were vague, but under the rules laid down in the cases that have been referred to, it was admissible. Its object was to show that the improvement was for the benefit of the general public, without producing any local advantage to the owners of lands along its line. “ Local assessments can only be constitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of those benefits. They cannot be so imposed when the improvement is either expressed or appears to be for general public benefit:” Sharswood, J., in Hammett v. Philadelphia, 15 P. F. Smith 146. It may be added that they cannot be so imposed when it is proved to be for the public benefit without advantage to local properties.

A complete system for the improvement of this particular highway was provided by the Act of the 5th of April 1870. The consent of a majority of the property-owners on the line, the selection by them of a contractor, the passage of an ordinance by the councils, and the advertisements under the ordinance of 1862, were all dispensed with. Previous laws and existing ordinances were to be applied only in the collection of the cost of the work. Nothing appears in the record to show that notice was not given to owners, or that there was neglect to take “ all other requisite proceedings to open the street.”

1 In the argument of the fourth assignment of error, the counsel for the defendant discussed the cause as if in the trial the Act of the 19th of April 1843 had been held applicable to this claim. That act, which limited a defence to a claim to a denial that work had been done or materials furnished, to proof of value, or to proof of payment or a release, extended only to the incorporated districts of the county of Philadelphia. Was this part of Market street ever included in such a district ? It seems certain that it was not in 1843. It could scarcely have been in West Philadelphia, which was chartered as a borough in 1844, and incorporated as a district in 1851. Was it within the district of Belmont, which was incorporated in 1853 ? The boundaries describing that district in the incorporating act indicate that it embraced no territory south of a line protracted westwardly from the western end of the northern boundary of West Philadelphia. It has sometimes been said that the Act of 1843 has been extended to the whole city by an ordinance of councils, under the authority of the proviso to the 44th section of the Consolidation Act of the 2d of February 1874. But no instance is recalled in which such an ordinance has been produced. The question was not raised in the trial, and is unimportant now. But it may become material hereafter.

Substantially, the defendant’s points were answered, and in that, as the case was tried, no mistake or inaccuracy has been discovered.

Judgment reversed, and a venire facias de novo awarded.