Chartiers Township v. Langdon , 114 Pa. 541 ( 1886 )

Mr. Justice Trunkey

delivered the opinion of the court,

It is the statutory duty of supervisors of townships to open public roads as soon as practicable after they are laid out,-approved and entered on the record of the court. Also to keep said roads constantly in repair, and at all seasons to keep them clear of all impediments to easy and convenient passing and traveling. Under the general statute, should there be dangerous foot walks constructed on the public roads, if the supervisors would not be bound to put them in repair, it would be their duty to remove them without delay. No man has a right, without authority of the supervisors, to occupy the public road with board walks. The duties of the supervisors are sharply defined, and they are clothed with authority to raise money by taxation for the carrying out of those duties.

At the outset in this case the plaintiff is met by the local statute of April 2d, 1869, entitled “ An Act to provide for the construction and maintenance of foot walks in Chaitiers, Scott, Union and Robinson townships, Allegheny county.” This Act instructs the supervisors “ to deduct from the road taxes of each taxpayer such sum as he may expend in making, and keeping in repair, foot walks on the public roads in said townships, to be constructed in the following manner, viz : It shall be the duty of the taxpayer to furnish the supervisors a bill of the cost of the foot walk constructed by him, stating location, kind of material used, cost of same, et cetera, which bill if not excessive, is to be deducted from his road tax; should the bill exceed the value of the work done, it shall be the duty of the supervisor to put a just valuation on the same.”

The Act does not empower the supervisors to make foot walks or keep them in repair; it authorizes, not requires, taxpayers to make foot walks; and if they do make them it is their duty to keep them in repair. Of course, the intendment is that they shall make only such as are safe. If, instead, they should construct or maintain dangerous man-traps or pitfalls, the law provides a remedy for the public against the wrong-doers; and, also, under some circumstances, for a person who may be specially injured by the nuisance.

But the supervisors are not authorized to determine what material shall be used, or how the walks shall be made. Everything is intrusted to the judgment of the taxpayer who is . required in his bill to state “ location, kind of material used, cost of same, et cetera.” Undoubtedly, if the supervisors found on the location a nuisance instead óf a foot walk, they could refuse to deduct the cost from the tax; but if the work is a foot walk, reasonably safe, the Act compels the supervisors to deduct the cost, or just valuation. Nothing in the Act requires the foot walks to be built subject to the approval of the supervisors; placing a value on work and material does not mean approval. Nor does the Act enable the supervisors to direct who'of the taxpayers may make foot walks, or where they shall be made; all is left to the judgment or caprice of each taxpayer. And it cannot be known until the close of the business of the year how much of the taxes levied in such year, will be put into foot walks. 'The supervisors cannot appropriate a certain proportion, or a certain amount, for that purpose.

The contingent and uncertain receipts which may possibly arise from penalties for trespasses on the foot walks, constitute the only fund that can come into the hands of the supervisors “ for the benefit • of the foot walks of said township.” That provision, whatever it means, does not imply authority in the supervisors to do what is expressly committed to the taxpayers.

In providing “for the construction and maintenance' of foot walks ” in Chartiers township, no duty is imposed on the supervisors to see that said walks are made and kept in safe condition. The liabilities of townships result from omissions of statutory duty. To the extent of the operation of the Act of April 2d, 1869, it interféres with and supplies the provisions of the general statute relative to the powers and duties of supervisors.

The plaintiff contends that the testimony does not indicate who constructed the foot walk; that it may be assumed that it was built by the township; and that the supervisors had assumed charge of the walk for years before he was injured. All that may be so, yet the cause was not tried as if the foot walk had been constructed by the township. Both parties presented points with reference to the local Act of 1869, the plaintiff asking instructions respecting the powers aiid duties of supervisors under said Act.

Judgment reversed.