Scranton v. Jermyn , 156 Pa. 107 ( 1893 )

Opinion by

Mr. Justice Mitchell,

Under the act of May 23, 1889, for the incorporation and government of cities of the third class, article 5, sec. 3, clause 10, P. L. 288, the councils are authorized to direct by ordinance the paving of streets, etc., but if the cost is to be paid by the abutting property owners, certain conditions are attached to the manner of exercising the municipal authority, one of which is that the paving, etc., shall be petitioned for by a majority of the owners, or the owners of a majority of the feet front on the street. And by article 15, sec. 26, of the same act, P. L. 325, where the paving has been petitioned for, “ the passage by councils of any ordinance directing the paving .... shall be held to be conclusive of the fact ” that the necessary majority of owners have petitioned for it. Under these provisions of the statute the only defence upon this point open to a property holder against a municipal claim for paving is that there was no petition. The affidavit _ of appellant does hot set up any such defence. On the contrary it expressly avers that there was a petition but it was not signed by a majority. That fact was not open to dispute. The argument of appellant on this branch of the case is really an argument against the policy of such a provision. With that we have nothing to do.

The language of the act is perfectly plain and can have but one interpretation. No authority therefore is necessary, but, if it were, the cases of Erie v. Bootz, 72 Pa. 196, and Olds v. Erie, 79 Pa. 380, would be ample, for the language there held to shut out the question was much less certain and mandatory than here.

But it is argued, the act also provides that no such ordinance shall be passed until five days notice shall be given by advertisement ; that this is a question of fact, which cannot be assumed on a motion for judgment; and that the provision of article 15, sec. 22, P. L. 324, that claims “shall be prima facie evidence of the amount thereof, and of the same being due and owing, and of all matters therein set forth,” cannot be extended to cover matters of this kind concerning the manner in which an ordinance has been passed. The claim, which is filed as part of plaintiff’s, statement of its cause of action, recites the fact that the ordinance was petitioned for, and that the petition “ was duly advertised as required by law.” Of course, even under this provision, the claim is only evidence of such averments in it as are relevant and proper to be included, but this is such an averment, for it is directly relevant and material to the validity of the ordinance on which the claim itself rests. The appellant’s argument on the whole of this branch of the case overlooks the vital fact that claims for paving and other municipal improvements are a species of taxation, and the property owner has only such rights of contest and defence as the legislature chooses to allow him. Councils might have been authorized to order the street paved at his expense without his • consent or even without notice to him. In many cases tlfey are so authorized by law. Such defences as the legislature deemed necessary for the protection of his individual rights are left open to him, but a large measure of discretion is and must of necessity be lodged finally in the municipal body, and just how large that measure shall be is matter entirely for legislative determination. As already said, councils under some circumstances have authority to decide without reference to the individual at all; in others, as the present case, the improvement must be initiated by a majority of the property holders, but in such case the dissenting individual or minority has no cause of complaint. The power to decide is given to the majority, and their action is binding on the others, willing or unwilling. And the law to some extent regulates not only what defences may be made, but when and how. The question whether a majority of the property owners have signed a petition is a question of fact, not always perfectly simple or easy of ascertainment. Lines may be uncertain or undetermined, titles may be in dispute, lots may be in course of transfer, and the owner today when one petitioner signs may not be owner tomorrow when the petition is presented. If these matters are open to dispute in each individual case, then one jury may find a lien invalid against one property, and another jury the same day find another lien under the same ordinance valid against the next door property. The legislature, wisely as it seems to us, has provided that councils shall determine this fact finally before the work is begun, and the passage of the ordinance shall close the question for all parties. For the same reasons, to a lesser extent, the law also provides that the claim itself shall be prima facie evidence of the facts therein set forth. This is but a statutory application to this class of public work of the maxim that all things shall be presumed to have been done rightly, and is little if any harder on the defendant than taking a plaintiff’s statement to be prima facie true, and giving him judgment on it unless the defendant makes a denial by affidavit. In all this there is nothing new, or startling, or subversive of constitutional rights. It is a common and long established method of procedure, and as such was approved by our brother Williams in Scranton v. Whyte, 30 W. N., 74 [s. C. 148 Pa. 419.]

The averment in paragraph two of the affidavit that the city of Scranton has no interest in the action, its contract with the use plaintiff, the paving company, limiting its liability to the amount of the.claims recovered against the property owners, is irrelevant and immaterial, but it takes all the force out of the objections raised by paragraphs four and five against the ordinance and the resolution awarding the contract to the use plaintiff. As no liability was imposed by the contract on the city, no provision for indebtedness was necessaiy, and the contract could as well be awarded by resolution as by ordinance.

Judgment affirmed.