Lancaster County v. Lancaster City , 170 Pa. 108 ( 1895 )

Opinion by

Mr. Justice Williams,

The first question raised on this appeal is over the exclusion from the jury of members of the city councils of the city of Lancaster. It is a sufficient reply to this assignment of error that the ease presented on the trial in the court below no disputed question of fact for the decision of a jury. The defendant for this reason suffered no wrong because of the exclusion, if it had been erroneous, and under a long list of cases an error that works no harm to the party complaining is not a ground for reversing a judgment otherwise free from objection. But we see no error in the action of the court as it appears upon the facts of this case. The councils of the city of Lancaster represent the city upon all, subjects requiring delibei’ation, and their action is the action of the city. The items of this very claim had been presented to the city councils with a demand for payment thereof. The question of the liability of the city was thus distinctly presented to them for their official decision. They considered it. After consideration they decided it adversely to the plaintiff, holding that the items upon which a recovery is now sought did not constitute a valid claim against the city. The ground for the exclusion was not the simple fact that they were members of the city councils, but that as such they had been called upon to investigate and pass upon this identical claim ; and after investigation had officially determined that the claim was unfounded and that no recovery ought to be had upon it.

The remaining questions may be reduced to two in number: First. Is the city liable to reimburse the county when the pajrments made on its behalf by the county exceed its contribution to the road and bridge fund of the county ? Second. Are the proceedings in the several cases for which reimbursement is sought in this action sufficiently regular to support the claim against the city? The first of these questions was clearly presented in Lancaster County v. Frey, 128 Pa. 593, and distinctly decided in favor of the county. It was again presented in Lancaster County v. Lancaster City, 160 Pa. 411, and we followed and approved Lancaster County v. Frey, supra, holding that the 118th word in the third section of the act of 1854 should be read “ City ” instead of “ County.” We have, at the earnest request of the able gentlemen who represent the city in this case, re-examined both the cases above cited, and the construction of the act of 1854. We are satisfied that the cases were rightly decided, and that the act of 1854 was wisely interpreted in the only manner that could make its provisions consistent and give effect to the evident legislative intent. We follow therefore in this case the rule of construction laid down in the cases cited, not only under the doctrine of stare decisis, but because we are satisfied upon a careful re-examination of the whole subject that the construction adopted in those cases is the proper one. The question ought now to be considered as at rest. The second question requires a somewhat more extended treatment. Before entering upon it however there are at least three preliminary considerations to be borne in mind. First, that the exercise of the right of eminent domain in the opening of the several streets for which damages have been assessed against and paid by the county, has been in every single instance on behalf of the city in which the streets are, and on which the duty of maintenance falls.

The county has made the entry on its own behalf in no single instance. Its duty has been to provide the machinery for laying out and opening roads and streets, and to pay the expenses incident thereto.

Second. All but two of the whole number of streets included in the plaintiff’s claim had been projected by the city and placed upon the city plan some years prior to the proceedings in the court of quarter sessions which resulted in the assessments of damage paid by the county under the operation of the act of 1854 and claimed for in this action. The streets were therefore city streets, laid out or plotted on the city plan by the city engineer; and such laying out was declared by the act of 1873 sufficient to establish the location and width of such plotted streets as public highways of the city. Third, the law cast the duty of payment of 'the assessed damages on the county in the first instance, and the further duty of opening an account with the city so as to ascertain whether the road taxes paid by persons and property within it were equal to payments made by the county on its behalf. The law also in express terms imposed on the city the duty to reimburse the county when the balance shown by the account, so to be kept, was against the city. Keeping in mind the relation of the city to its own laid-out and plotted streets, and the relation of the county under the act of 1854 to the city, and the opening of its streets for public use, let us see what was necessary to such opening and in what manner the proceedings were to be conducted. The act of 1873 furnished the system under which the city projected its streets, had a survey and plan of them prepared, and then filed the plan in the office of the clerk of the court of quarter sessions for the information of the public. It then provided the manner in which these plotted streets should be opened thus: “Inasmuch as the public convenience will for the present be answered by a certain knowledge as to where and in what manner streets, avenues and highways will in future run, but as it may not be necessary immediately to open or widen the same, in order to provide for the opening and widening thereof according to the draft or plan aforesaid, from time to time as the increasing improvement of the city may require, it shall be lawful for the city council by joint resolution, or any six freeholders by petition, to apply to the court of quarter sessions of Lancaster county, for the opening of any such street.” The court is then to inquire if the state of improvements in the neighborhood of the street in question is such as to justify the occupation of the plotted street by the city by opening it for public travel. If this question be decided in favor of the petitioners, viewers are appointed to determine the damages to be sustained by the own ers of lands, houses or other property in consequence of such opening according to the plotted lines appearing on the draft in the hands of the clerk of the court. These damages when assessed represent the injury done to private persons by the city in the opening or widening of the laid-out streets. They are ascertained by the court of quarter sessions, whose machinery may be put in motion by the joint resolution of city councils or by the petition of six freeholders resident within the city, but the county is in no manner connected with the proceedings at any stage, for any purpose, except the payment of the damages as settled by the court of quarter sessions. When final judgment is rendered against the city in favor of any claimant for damages done by the opening or widening of a city street, then the county is charged with the duty of payment in the first instance, and is authorized to call upon the city for reimbursement. The proceedings are thus seen to be to some extent in rem. The duty to give notice to the city is on- the viewers, and not on the county, and the time for the city to object is before the assessment made by the viewers is approved by the court. After final approval the assessment has all the effect of a judgment rendered against the city in an adverse proceeding; and if the county is allowed to pay it under the act of 1854, it may properly charge it up to the city and require reimbursement.

Under such circumstances it is no defense for the city to allege that the damages are too high, or that they might have been greatly reduced by evidence at the trial. The duty to take defense was on the city, and, if it neglected its opportunity it cannot now be heard to complain that the county has paid too much. It has paid just what the law required it to pay, viz, the damages due to private claimants from the city for the exercise of the right of eminent domain by the city in the laying out or widening of its own streets. It has paid these damages just when the law required it, when ascertained by the final order or decree of the court of quarter sessions of Lancaster county. It had no agency in, or responsibility for, the exercise of the right of eminent domain, or the ascertainment of the damages done thereby. Its responsibility began and ended with the payment for the city of the damages finally awarded by the court of quarter sessions to the claimant. The questions of regularity should have been raised by the city at the proper time when the report of the viewers was under consideration.

The city had notice of the proceedings. The reports of the viewers show this. If in any case they had no notice and injustice has been done for that reason, the remed}*- is an application to the court of quarter sessions to open the decree of confirmation and permit the proper defense to be now made. It cannot lie by, allow the report to be finally confirmed, paj-ment to be demanded from and made by the county, and then object when called upon to reimburse the county that it did not have notice of the proceedings pending for the opening of one of its own streets, and ought not thereby to be bound by the judgment standing in full force against it on the records of the proper court.

We decline therefore to enter upon the subject of actual notice to the city in this ease. A judgment has been rendered against the city in each of the cases that go to make np the plaintiff’s claim in a statutory proceeding, conducted in accordance with the directions of the statute, of which the city was bound to take notice. It is bound by that judgment until it is opened, set aside or reversed on appeal. A fortiori, it is bound as to the county of Lancaster which has paid the money for the city after final judgment and under the compulsion of a statutory direction.

The judgment is affirmed.