Commonwealth ex rel. Allegheny City v. Marshall , 69 Pa. 328 ( 1872 )

The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

This case was before us on a former writ of error, and is reported in 9 P. F. Smith 455. It was then decided that the resolution of the councils of the City of Allegheny of the 12th of April 1866, authorizing the committee on streets to enter into a new contract with James Hastings, for the grading of Ridge street, was null and void, because the same was not published and recorded as required by the city charter. An 'act to cure this omission was passed on the 24th day of March 1869. The preamble refers to this resolution as dated July 13th 1866, the date of the new contract, taken by the penman of the act by mistake for the date of the ordinance. It is, therefore, contended that the curative act is inefficient and inoperative. Of this opinion was Nthe court below, which we think was an error. Though the preamble of a law, as often said, is no part of the enactment, and, therefore, does not proprio vigore make the law; it is, nevertheless, a part of the law for some purposes. If it be referred to in the enacting clause to identify the subject-matter of the law, or to explain the motive or the meaning of the legislature,'it can be used for this purpose. In this view of its true character, the mistake here, of the date of the contract for the date of the ordinance, is plainly corrected by the remainder of the preamble. Not only does it refer to an ordinance which authorizes a new or second contract for grading Ridge street by name, and the fact of work done upon it in part, and large sums expended in grading; but this very suit is itself referred to, and the writ of error to the Supreme Court by number and term, the decision, and the recommendation of Justice Read in the opinion, that the want of publication and recording of the resolution should be cured by the legislature. This reference makes it perfectly plain that it was this very resolution or ordinance of April 12th 1866, which the legislature intended to validate. There is no other that concerns the case of A. Marshall’.

It is contended that this resolution was incapable of ratification, because it was wholly void, no action having been taken under it within the thirty days allowed for recording it, as was the case in Schenley v. The Commonwealth, 12 Casey 29, and this it is said distinguishes the cases. That fact was stated in Schenley’s case as adding weight, but not as the ground of decision. The reasoning of Justice Strong makes it clear that the principle, or the true ground of the decision, was that the value of the lots was enhanced by the public expenditure — that the city had the benefit of the work — that there was an imperfect or moral obligation to make compensation; and, therefore, that the non-recording of the ordinance was but a formal or technical defect, which the power of the legislature is competent to remedy. When the ordinance fell by the failure to record it, it was essentially dead — null and void, as though it had not been passed. The fact that the contract was entered into while it had a temporary life gave it no greater efficacy, for it also fell dead for want of authority, the moment the ordinance became null and void. The parties to the contract were bound to know the terms of the charter, by virtue of which they had authority to contract, and that the authority was gone the instant the ordinance fell. Besides, a contract is not essential to the lien against the abutting property — that results from the improvement, which might be done by other means. But the lien cannot be created without a valid ordinance, for such is the law, and this was as much wanting in the Schenley case as in this. The decision in that cáse, therefore, rules this on this point.

It was also contended in the court below that the resolution of 12th April 1866, makes no levy or assessment for costs and expenses incurred under the new contract. This was not essential, for that is provided for in the original ordinance of 5th November 1863. The resolution of April 12th 1866, merely changes the terms of doing the work, but did not otherwise change or affect the provision for levying the special tax contained in the ordinance of 1863. It was but a change in an intermediate step, leaving the final step of charging the cost unaffected.

The last question requiring notice is that raised by the objection to the offers C. and D. set forth in the third and fourth specifications of error. This objection was that an assessment for the improvement cannot be made by portions, but must be upon all the properties along the whole length of the street. The court below seems to have sustained this objection. This was an error. The Act of April 5th 1849, authorizes the grading and paving of any street, or parts thereof. It was to be done under that act, on the petition of two-thirds'of the number of the lot-owners of any section, square, or parts of a square, bounding or abutting on such street, and the cost to be paid by an equal assessment on the feet front bounding and abutting as aforesaid. The Act of 8th April 1851, authorized the councils to grade and pave, without the petition, but left the provision for taxation as it stood in the Act of 1849. As the city may grade and pave in parts, as convenience and the wants of the people require, there is no good reason that the exercise of the assessing power should not accompany the power to grade and pave, and this appeared to be the intent of the law. To require the special tax to be collected along the entire length of the street every time a part is paved, would often make the owners of unimproved or sparsely settled lots pay for grading and paving a distant part of the street. It would also largely increase the burthen, by making numerous assessments of the whole, as each part was graded or paved. The argument urged against this view is the inequality of burthen thrown upon the owners along the line of the street, where one section is expensive and another is not so. It is said there are parts of Ridge street excavated to the depth of twenty feet to bring it to grade. There is a seeming force in this objection, were the fact found to be so, and it no doubt seriously impressed the mind of the learned judge below. But the fact of a gross and palpable violation of right has not been found by the jury under any instructions presenting the character of the ordinance for examination. We cannot assume that the ordinance to grade the remainder of Ridge street, and the assessment upon the lots abutting that part, are palpably unreasonable and unjust. Indeed, the contrary would be the inference, for the whole street was to be graded under this ordinance — excepting a small part which had been done before. We must rather presume that the councils have acted in good faith to the people whom they represent, and who can displace them if they do wrong. The question is, therefore, not before us, and indeed cannot be; unless in so plain a case of an abuse of power as will command the assent of the mind to it at once as a palpable violation of the authority conferred upon them by the legislature. Complete equality cannot be produced in either general or special taxation; and something must be left to the sense of justice and sound discretion of'the governing body. The principles of special taxation have been discussed in the case of Washington avenue (postea p. 353), heard at this term; and the opinion there may be referred to for any further expression of our views that may be desired.

Judgment reversed, and a venire facias de novo awarded.