Appeal of Harper

Decision Date05 October 1885
Docket Number301
Citation109 Pa. 9,1 A. 791
PartiesAppeal of Harper et al
CourtPennsylvania Supreme Court

February 6, 1885

APPEAL from the Court of Common Pleas of Crawford county: Of January Term, 1885, No. 301.

Bill in equity, between Alexander Powers and five others, property owners in the city of Meadville, complainants, and W. S Harper, Mayor, et al., defendants, praying for a perpetual injunction, to restrain the collection of certain municipal assessments or taxes, levied by the city authorities, for the construction of a sewer in front of the complainants' property.

A demurrer to the bill, on the ground that the complainants had a full and adequate remedy at law, was overruled by the court, and the defendants filed an answer, whereupon the cause was referred to J. B. Brawley, Esquire, as examiner and Master, before whom the following facts appeared: --

Meadville is a city, subject to the provisions of §§ 37, 47 and 48 of the Act of Assembly entitled "An Act dividing the cities of this state in three classes," approved May 23d, 1874, and amended by Act of April 11th, 1876 "regulating the collection of municipal claims and sewerage."

In pursuance of the 47th section of the above Act the City Council, on August 3d, 1881, passed an ordinance, No. 222 erecting and defining the limits of sewer district No. 1 in the city of Meadville, which was approved the same day. On October 9th, 1881, the City Council adopted a supplement to ordinance No. 222, by which the southern limits of sewer district No. 1 were somewhat changed.

Immediately after the passage of ordinance No. 222, to wit: August 3d 1881, the City Council passed a resolution providing for the construction of a sewer, along certain streets named, "in accordance with city ordinance No. 222, of such dimensions as the committee shall adopt, and that the city engineer be instructed to prepare a plot or plan of the same to report to the Council as required by § 2 of city ordinance No. 222." In pursuance of the foregoing ordinances and resolution, the street commissioner caused an eighteen inch sewer pipe to be laid on Water street, from Linden to Chestnut streets; also certain branches at the intersection of other streets. This sewer pipe was laid by the city between September 12th and November 20th, 1881; and was the work which gave rise to the present controversy.

The city did not at any time prior to the 20th of November cause the estimates, maps, plans and schedule to be made, which is required to be done by the Act of Assembly, entitled "An Act prescribing the manner in which the councils of cities other than those of the first class may pass ordinances authorizing the grading and paving of avenues, streets or alleys, and the construction of sewers and bridges," approved May 1st, 1876 (P.L. 94); nor were such estimate, maps, plans and schedules attached to any ordinance authorizing the construction of sewers prior to the ordinance of March 15th, 1882, hereinafter set out.

On August 31st, 1881, the City Council appointed assessors to assess the estimated cost and expenses of the sewerage upon the lots and lands in the district. The viewers filed a report, which was subsequently excepted to and set aside. On January 18th, 1882, a new board of assessors was appointed for the same purpose. This board reported on February 25th, 1882, and subsequently the numerous exceptions filed were overruled and the report confirmed.

On March 15th, 1882, ordinance No. 227 was passed and approved by the City Council, which authorized and directed the construction of a complete system of sewerage in the first sewer district. To this ordinance was attached the estimate of the city civil engineer, showing the total cost of this improvement, a map or plan of the property liable to assessment for the cost of the same, the schedule prepared by the board of assessors showing the total cash value of the property liable for assessment for sewerage in district No. 1, and the amount each property would be liable to pay for such improvement. This ordinance, in preliminaries and form, complied with the Act of Assembly of May 1st, 1876.

Under this ordinance, No. 227, the city proceeded to put in a complete system of sewerage in district No. 1, of which the sewer laid in 1881 on Water street, between Linden and Chestnut streets, formed a part. Against the collection of the assessments levied on the property abutting on this last mentioned part of the sewerage the present bill was filed, the complainants contending that it was constructed before any legal ordinance authorizing it was passed.

The defendants claimed before the Master -- first, that after the construction of that part of the sewer between Linden and Chestnut streets, and before the balance of the sewer system was constructed, a formal and lawful ordinance, in compliance with the Act of May 1st, 1876, was passed, under which the complainants and all others were lawfully assessed with the cost of their part of the sewer; and second, that if the complainants were injured they had a full and adequate remedy at law, by appeal from the assessments to the Court of Common Pleas, and that equity, therefore, had no jurisdiction.

As to these points the Master reported, inter alia, as follows: --

"The authority of the city of Meadville to construct the sewer in question and assess the cost of it upon the abutters and other property owners of sewer district No. 1, of said city is found in Act of May 1st, 1876, P.L., p. 94, and in § 47 of the Act of May 23d, 1874, as amended by Act of April 11th, 1876; see P.L. 1874, pp. 250, 259 and 260.

"The Act of May 1st, 1876, P.L. 94, expressly provides that 'any ordinance which shall be passed by the Councils of any city in this Commonwealth authorizing . . . the construction of any sewer or bridge before the provisions of this Act are complied with shall be null and void and of no effect.' The resolution of August 3d, 1881, authorizing the construction by the city authorities of a sewer along Water street, from Chestnut street to Linden street, in no way complied with the Act of May 1st, 1876, and is therefore, in the language of that Act, 'null and void and of no effect.' No other ordinance was passed authorizing and directing the construction until after that portion of the sewer on Water street, between Chestnut and Linden streets, was built. Can the city impose a special tax upon a limited number of citizens to pay for work done simply under the general powers of the city, and not by virtue of a particular or special ordinance, duly authorized by legislative authority? It is true that a city has power to construct a sewer without any special authority given with that view: Fish v. Harrisburg, 2 Grant, 291, but a debt incurred in the construction of a sewer under the general powers of a city would be a general debt of the city, and would have to be paid by general taxation: Com. of Kensington v. Keith, 2 Barr, 218, and not by special tax. . . . The Master is of the opinion that as that portion of the sewer of sewer district No. 1, situate on Water street, between Chestnut and Linden streets, was constructed before any lawful ordinance was passed to authorize its construction, and before the assessors assessed the estimated expense of it upon the lots and lands in that district, there was no lawful authority either in the city or the assessors to assess the cost of its construction upon the lots and lands of that district.

"Has a court of equity jurisdiction to grant relief in the premises? The respondents claim not, for the reason: 1st. That the complainants have a full and adequate remedy at law for the wrongs complained of, and 2d. That the complainants have not presented such a case as authorized equitable interference upon any ground. . . . The legal remedies which it is alleged exist for the wrongs complained of are an appeal from the assessment to the Court of Common Pleas of the county, or, if the right of appeal did not exist, then a review of the proceedings of the Council on certiorari, or by suit against the collector for...

To continue reading

Request your trial
22 cases
  • Huston v. City of Des Moines
    • United States
    • United States State Supreme Court of Iowa
    • 11 Marzo 1916
    ...Ind. 575, 28 N. E. 853, 15 L. R. A. 321;Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541, 45 Am. St. Rep. 339;Appeal of Harper, 109 Pa. 9, 1 Atl. 791;Morris Canal Co. v. Jersey City, 12 N. J. Eq. 252;Southern Express Co. v. Ensley (C. C.) 116 Fed. 757;Chicago v. Collins, 175 Ill......
  • Huston v. City of Des Moines
    • United States
    • United States State Supreme Court of Iowa
    • 11 Marzo 1916
    ...... [156 N.W. 884] . .          . REHEARING DENIED WEDNESDAY, JUNE 28, 1916. . .          Appeal. from Polk District Court.--HUBERT UTTERBACK, Judge. . .          ACTION. to test the validity of a statute and an ordinance of the. ... (Ind.), 132 Ind. 575, 28 N.E. 853; Deems v. Mayor, etc., of Baltimore (Md.), 80. Md. 164, 30 A. 648 (26 L. R. A. 541); Appeal of. Harper (Pa.), 109 Pa. 9, 1 A. 791; Morris Canal Co. v. Mayor, etc., of Jersey City , 12 N.J.Eq. 252;. Southern Express Co. v. Mayor, etc., of Ensley , ......
  • Borough of Green Tree v. Board of Property Assessments, Appeals and Review of Allegheny County
    • United States
    • United States State Supreme Court of Pennsylvania
    • 20 Noviembre 1974
    ...(5th Ed., 1941). See also Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 328--330, 125 A.2d 755 (1956); Harper's Appeal, 109 Pa. 9, 15, 16, 1 A. 791 (1885). The orders of the Commonwealth Court and of the court of common pleas are reversed, and the case is remanded[459 Pa.......
  • Borough of Green Tree v. Board of Property Assessments, Appeals and Review of Allegheny County
    • United States
    • United States State Supreme Court of Pennsylvania
    • 20 Noviembre 1974
    ...... The BOARD OF PROPERTY ASSESSMENTS, APPEALS AND REVIEW OF ALLEGHENY COUNTY, Pennsylvania, et al., Appellees. Appeal of BOROUGH OF BRENTWOOD at No. 159. Nos. 142, 159. Appeal of BOROUGH OF CRAFTON at No. 142. Supreme Court of Pennsylvania. November 20, 1974. . ... § 231 (5th Ed., 1941). See also Pennsylvania State. Chamber of Commerce v. Torquato, 386 Pa. 306, 328--330,. 125 A.2d 755 (1956); Harper's Appeal, 109 Pa. 9, 15, 16,. 1 A. 791 (1885). [ 15 ] . . . The orders of. the Commonwealth Court and of the court of common pleas ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT