Olds v. Erie City , 79 Pa. 380 ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court, November 8th 1875.

This is a scire facias on a municipal claim, filed by the city of Erie against a lot of ground, owned by the defendant below.

The claim is for the cost of paving the street in front of this lot. The authority of the city is supposed to be derived from the Acts of 1861 and 1868, which empower the select and common councils of said city to pave and curb the' streets and collect the cost and expense of the work and materials therefor from the owners of the lots abutting thereon.

To the exercise of these powers, certain conditions precedent are prescribed. The first is that a majority of the property-holders fronting on the street proposed to be improved, shall petition therefor. If there were nothing more it would be a good defence that this condition had not been complied with, for without such compliance the councils had no jurisdiction: Pittsburg v. Walter, 19 P. F. Smith 365. The second section, however, of the Act of 1861, obviates this difficulty, for it prescribes, that when said councils shall by ordinance, direct the paving and grading of any street within the city, the question whether a majority of persons holding or owning property thereon have petitioned for the same, shall cease and determine.

There is, however, this important proviso, to wit: “ That no ordinance for any of the above-named purposes shall be passed until — days notice of the improvement prayed for has been given in the official paper of the city.” We thus observe that inquiry into the character of the petition is barred, but this second condition, to wit, publication, becomes material and necessary to the jurisdiction of the councils inasmuch as it is substituted for that which, but for the preceding part of the second sect, of the Act would be material and necessary. As the action of the councils concludes all precedent questions arising from the petition, this public notice is provided in order that every citizen, who is in any degree interested, may have a chance of being heard: Erie City v. Bootz, 22 P. F. Smith 196, per Sharswood, J. The action of the councils, under this act, was quasi judicial in its character and it is a fundamental rule that all such proceedings where they affect the rights or property of the citizen are nugatory if unaccompanied by reasonable notice. In the case in hand no such notice as that required by the statute was given. The imperative requisition is publication in the official paper of the city for — days. The word “ days ” after the blank being plural, indicates more than one, and we need hardly say that a mere editorial publication of the genei’al doings of the councils is not the notice required by the statute.

Eor these reasons the judgment of the court below is reversed.