City of Reading v. O'Reilly , 169 Pa. 366 ( 1895 )

Opinion by

Mr. Justice Mitchell,

The act of May 1, 1876, P. L. 94, provides that councils of cities not of the first class “ shall not pass any ordinance authorizing the grading or paving of any street .... before they have caused the city engineer to make an estimate of the total cost of such improvement, particularly stating the items and the cost of each, and a map or plan of all the property liable to assessment for the cost of the same, and also caused the board of viewers to view the property and make a schedule showing the total cash value of the same as nearly as can be ascertained, and the amount each property owner will be liable to pay for such improvement; which estimate, map or plan and schedule shall be attached to the ordinance before its passage, and shall remain on file in the proper office for the benefit of all persons interested “and any ordinance for paving, etc. passed before compliance with this requirement shall be void.”

The select council of the city of Reading on Aug. 9, 1886, passed an ordinance, S. C. No. 37, for the grading of South street. This ordinance had the necessary plan, estimate, etc. attached as the act of 1876 required, but on coming up in common council, Sept. 2, 1886, it was defeated.

On Sept. 27, 1886, a new ordinance, C. C. No. 30, was introduced into common council, and on Oct. 11, 1886, it was passed by both chambers. This ordinance was not preceded by any action of councils causing the city engineer to make an estimate, plan, etc., in connection with it, but at some time, which the jury have found was before final passage, the plan, estimate, etc., belonging to the defeated ordinance, S. C. No. 37, were detached therefrom, and attached to the new ordinance, C. C. No. 30.

These facts being undisputed, the question raised by the first point reserved is whether they show a sufficient compliance with the act' of 1876 to make the second ordinance, C. C. No., 30, valid. We are clearly of opinion that they do not.

It would be sufficient objection for the purposes of this case, that the attachment of the plan etc. to the new ordinance was not done at the command, or by the authority of councils, nor so far as appears even with their knowledge as a body, though some of the members knew of it. It was the act of the city clerk of his own motion or on the suggestion of a member as to the necessity of it. This was entirely insufficient. The statute contemplates that it shall be done by council as a body, in their legislative capacity, so that all the members shall have notice or knowledge ,of the facts which are made a prerequisite to their valid legislative action.

But even if the attachment of the old plan to the new ordinance had been by command of councils themselves, that alone would not have been sufficient. The main object of the act of 1876 was to compel councils when passing the ordinance to have before their immediate view the situation of the property-on the street, the probable cost of the improvement, and the distribution of the burden on the lot owners who were to be called upon to pay. Incidentally also the same information was to be for the benefit of lot owners and others interested, and to this end the plan etc. were to remain on file. But the main purpose was to serve as a check on ignorant and inconsiderate legislation, by bringing the most important relevant facts to the direct notice of the members and the body, when in the act of legislating upon them. It is part of the system which is found in the constitutional provisions that the subject of bills shall be clearly expressed in their titles, and that no bill shall be revived, amended, etc. by reference to title only, but by reenactment at length, and which is carried through nearly all of our statutes relating to municipal bodies and their legislative action. When a plan, estimate etc. are made in view of a specific ordinance, and that ordinance with its attachments fails, they all fall together. Of course we do not refer to reconsideration of votes, under the rules of the legislative body, but to new action. When such action starts it must start anew on its own basis. If a plan and estimate made for one ordinance may be taken by councils as a basis for another after two months, it may be so taken after a longer interval, and in the meanwhile there will be no certainty that the situation and value of the property may not have changed. There will be no standard but the discretion of councils, which the act of 1876 intended to restrain within the prescribed limits. It is not meant that the report of the city engineer and others must necessarily be thrown away, and the work all done over again. If the interval is such that there is a fair presumption against any material change in the situation, councils may reasonably direct the city engineer to take up his report again and supplement it with reference to present circumstances. All that we mean to say is that the prerequisites to the passage of an ordinance, must be had with direct reference and in the very course of the legislation itself. Otherwise the main object of the statute is not accomplished.

There is nothing in the cases cited by appellant, which conflicts with these views. Oil City v. Morris, 1 Penny., 420, decided that a view by the commission under the act of 1872 was equivalent to one by a board of viewers under the act of 1876, and the question whether the view was made before the passage of the ordinance was properly left to the jury: Erie v. Brady, 127 Pa. 169, was to the same effect, that a positive averment in an affidavit of defense that no plan was made, would carry that question to the jury. Beaumont v. Wilkes-Barre, 142 Pa. 198, was not on the same question at all. The stress of that case was on the borough act of 1851. A proceeding for paving a street commenced in 1883, but was delayed and protracted by injunctions, protests, changes of plan, etc., until finally the plan and estimate required by the act of 1876 were made in December, 1885, and an ordinance passed in February, 1886. The court held the proceedings continuous, and that a notice to the lot holders in 1884 followed by hearings and remonstrances from time to time, was not too remote under the act of 1851. The act of 1876 was strictly complied with, and the views of Rice, P. J., quoted on pp. 216, 217, are in exact accord with those we have expressed.

The whole ordinance being invalid it is not strictly necessary to consider the other points, but we are of opinion that the lien was bad in form. It is a proceeding in rem, and there is no authority for dividing up the assessment and filing part of it against the “ right and title ” of one joint owner.

The learned judge left to the jury the question whether the land was rural, and they found it was not. But the facts having been stated in a point reserved, the judge was of opinion as matter of law that it was. The question whether urban or rural is usually for the jury because it is one of fact: South Chester v. Garland, 162 Pa. 91; McKeesport v. Soles, 165 Pa. 628. But where the facts are agreed upon it becomes a question of law for the court as in other cases. We cannot say that the learned judge with his superior knowledge of the locality was not right in his view of the point reserved, but we have here two opposite findings on the same facts. This, to say the least, is inconvenient practice. Either the question should have been withdrawn from the jury on the ground that the facts were agreed upon for the court, or having been submitted to and found by the jury the point reserved should have been considered as withdrawn; and the verdict, if against the evidence, should have been set aside, so that on a new trial, if the facts still appeared undisputed, the court might give a binding direction.

Judgment affirmed.