Dewhurst v. City of Allegheny , 95 Pa. 437 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court,

The defendant below objects to paying the assessment upon his property for the grading and paving of Troy Hill Road, in the city of Allegheny, for various reasons, the first of which is, that the Act of Assembly of May 10th 1871, authorizing the same, and the supplement thereto approved April 1st 1872, are unconstitutional, and the assessments thereunder null and void. In Beckert v. The City of Allegheny, 4 Norris 191, so much of said act was doclaréd to be unconstitutional as provided for the assessment of a part of the cost of the work iipon property in Reserve township, which said township is located wholly in Allegheny county and outside the city limits. The title of said act was “ an act relative to grading, paving, curbing and otherwise improving Troy Hill Road in the city of Allegheny,” and this was held not to be notice to property owners in Reserve township that their property was to be assessed for the cost of the improvement. There was nothing in that .case, however, to throw the slightest doubt upon the constitutionality of any part of the act except in so far as it related to Reserve township. It is no injury to the defendant that property owners in the township have escaped. Their burdens have not been thrown upon his property, but have been very properly assumed by the city of Allegheny. His benefits are the same whether Reserve township pays or not; his burden is only increased by his share of general taxation and of this he has no cause to complain: Bidwell v. City of Pittsburgh, 4 Norris 491. An entire act is not necessarily unconstitutional because the title fails to give notice of some particular matter contained therein. The rule has been to sustain the portion of which the title gives notice: Dorsey’s Appeal, 22 P. F. Smith 192 ; Allegheny County Home’s Appeal, 27 Id. 77; Lea v. Bumm, 2 Norris 237; Wynkoop v. Cooch, 8 Id. 450. Even if there were anything in this objection, the defendant is not in a position to raise it. He petitioned for this road and was active in setting the machinery in operation by which the work was done. His case comes squarely within the rulings in Bidwell v. City of Pittsburgh, supra.

2. It was further objected that the lien was not filed in time. It was evidently filed under section 10 of the supplement which provides that “ said assessments, with the interest accruing thereon, and fees for collection, shall be liens upon the property assessed from the commencement of the work until fully paid; they shall have precedence to all other liens and shall not be divested by any judicial sale.” It may be that as against purchasers or subsequent lien creditors, the city would be required to file the lien as provided by section 9 of the supplement, but as against the defendant the lien continues by virtue of the 10th section.

3. The further objection that no copy of the report of the board of viewers, together with a map or plan of the improvements, was filed in the office of the prothonotary, as required by the act, is without merit. It was not shown that the defendant had been injured by such omission. The report is not made a matter of record. Beside, this provision of the act is directory merely : Magee v. The Commonwealth, 10 Wright 358; Pittsburgh v. Coursin, 24 P. F. Smith 400.

4. No valid objection can be made to the cost of the walls on the north side of the street. The road was constructed along the side of a steep hill, and stone walls appear to have been necessary to protect it. No objection was made to the walls on the south side. They were necessary to hold up the road and prevent its being washed down into the ravine. The walls on the north side were equally important to hold up the hill and to prevent its being washed down upon the road.

5. Equally untenable is the objection that a small portion of the road was improved only of the width of twenty feet. This occurred where the water main crossed the street. The grade, as established, uncovered the main pipe which supplies the city with water. To sink the pipe would require it to be cut, and it was thought unsafe at that particular time to interfere with the water supply. This is a very small matter of a temporary character, and there is nothing to indicate that the city did not act in good [faith, as well as with good-judgment. Besides, the record shows that the defendants, with others, presented their remonstrance to. councils against a change of grade, one of the objects of the proposed change being to avoid this very difficulty about the water main. One of the reasons he gives against a change of grade is, “ that a change of grade would be benefiting but a few to the damage of the many, and also in a great measure detracting from. the glory of the enterprising and public-spirited councils of 1872 and 1873, to whom this road will be a lasting monument, it being in fact the greatest enterprise yet undertaken for the benefit of the great public of our enterprising city.” The grade was not changed.

6. It was not error to reject the evidence embraced in offer “ A.” See ninth assignment. It is sufficient to say in regard to the first part of the offer, which relates to the assessments, that the fourth section of the supplement provides that “ The viewers’ report, when approved by councils, shall be final and conclusive without exception or appeal.” It does not appear that any objection to the confirmation of the report was made to councils. Having failed to bring his complaint before the only tribunal provided by law to hear it, the defendant cannot with justice object that a jury, in a common-law proceeding, were not permitted to revise the assessments. The first portion of the offer being inadmissible, the residue falls with it: Wharton v. Douglass, 26 P. F. Smith 273.

This record is free from error.

Judgment affirmed.

Justices Gordon and Trunkey dissented.