Bidwell v. City of Pittsburgh
| Decision Date | 07 January 1878 |
| Citation | 85 Pa. 412 |
| Parties | Bidwell <I>versus</I> City of Pittsburgh. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 256.
T. Mellon, D. Bruce and M. A. Woodward, for plaintiff in error.—The true principles, demonstrated with conclusive reasoning, in the case of Seely v. City of Pittsburgh, 1 Norris 360; Washington Avenue, 19 P. F. Smith 361; and Hammett v. City of Philadelphia, 15 Id. 151, rule this cause. And but for the remark in the conclusion of the opinion in the Seely case, that, "if there be any facts to raise an estoppel or other defence in equity, the parties ought to have stated them," that case, as intended, would have been deemed as settling for ever the law of all this class of cases.
To constitute an estoppel at least three ingredients seem to be necessary: 1st, misrepresentation, or wilful silence by one having knowledge of the fact; 2d, that the actor, having no means of information, was, by the conduct of the other, induced to do what otherwise he would not have done; and 3d, that injury would ensue from a permission to allege the truth. And these three things must appear affirmatively: Commonwealth v. Moltz, 10 Barr 527; Eldred v. Hazlett's Adm'rs, 9 Casey 307; Helser v. McGrath, 2 P. F. Smith 534; Miranville v. Silverthorn, 12 Wright 149; Dezell v. Odell, 3 Hill (N. Y.) 215; Bigelow on Estoppel 9, 473, 480; Herman on Estoppel, § 325, &c. Alexander v. Kerr, 2 Rawle 90; Brown v. Spalding, 1 Pittsburgh R. 361; Hill v. Epley, 7 Casey 331; Crest v. Jack, 3 Watts 240; Epley v. Witherow, 7 Id. 163; McCormick v. McMurtrie, 4 Id. 195; Wilton v. Harwood, 23 Me. 131; Bispham's Prin. of Eq., § 288-9; Barring v. Corrie, 2 B. & Ald. 137; Means v. Henderson, 1 East 335.
It is said we petitioned for the improvement, and acted as a commissioner, doing all required of such officer, and by those acts are estopped from showing that the street is through rural and farming lands, and the method of assessment thereby invalid. But in those acts there was no color of deception, misrepresentation or concealment, and, therefore, there is not and cannot be found in them any element of estoppel.
D. T. Watson and T. S. Bigelow, City Solicitor, for the city.— Under some circumstances a party who is illegally assessed may be held to have waived all his rights to a remedy by a course of conduct which renders it unjust and inequitable to others that he should be allowed to complain of the illegality. Such a case would exist if one should ask for and encourage the incurring of the tax of which he subsequently complains: Cooley on Taxation 573; Cooley on Const. Lim. 181; Baker v. Braman, 6 Hill 47; Embury v. Connor, 3 N. Y. 511; Heyward v. The Mayor, 8 Barb. 486; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586; The People v. Murray, 5 Hill (N. Y.) 468; Lee v. Tillotson, 24 Wend. 337; Kellogg, Treas., v. Ely, 15 Ohio St. 66; The People v. Goodwin, 1 Seld. 573; Ferguson v. Landram, 5 Bush (Ky.) 233; Tash et al. v. Adams, Treas., 10 Cush. 252; Van Hook v. Whitlock et al., 26 Wend. 43; Palmer v. Stumph, 29 Ind. 329; Hellenkamp v. City of Lafayette, 30 Id. 192.
Misrepresentation is not essential to estoppel: Miller's Appeal, 3 Norris 391.
The seventeen assignments of error may be considered together. They all involve the question whether the plaintiff can avoid the payment of the assessments made on his lands on the ground of alleged unconstitutionality of the law authorizing them.
The claim is to recover the cost of grading and paving Ellsworth avenue, on which plaintiff's lands front, under the Act of 2d April 1870, Pamph. L. 796. The main provisions of the act, to which reference need be made, providing for this improvement, are
1. It requires a petition from a majority of property-holders along the line of the proposed improvement, before the councils can act.
2. When authorized by councils, the improvement is placed under the exclusive control of the commissioners elected by the owners of property abutting on the improvement.
3. The cost of the improvement is to be paid in ten equal annual instalments with interest.
The legislative power to apportion a local tax, for a local improvement within the limits of a municipal corporation, has frequently been recognised by this court; so has the validity of municipal claims assessed on lots fronting on streets, their due share of the cost of grading, paving, curbing, building sewers and culverts, in proportion to the respective fronts: Pennock v. Hoover, 5 Rawle 291; Northern Liberties v. St. John's Church, 1 Harris 104; The City v. Wistar, 11 Casey 427; Commonwealth v. Woods, 8 Wright 113; Magee v. Commonwealth, 10 Id. 358; Wray v. The Mayor of Pittsburgh, Id. 365; Smith v. McCarthy, 6 P. F. Smith 359; City of Philadelphia v. Field, 8 Id. 320; Stroud v. City of Philadelphia, 11 Id. 255; Washington Avenue, 19 Id. 352.
In Seely v. City of Pittsburgh, 1 Norris 360, it was held that while the frontage rule of valuation might be a just mode of assessing the cost upon compact city lots where the properties do not materially differ in value, yet it could not be applied to a street made through rural districts, and so far as the Act of 2d April 1870 applied this mode of assessment to the latter districts, it was unconstitutional. The validity of the law generally is there conceded, but the right to apply it to the property in question is denied. Assuming that to be a correct exposition of the law, we will consider its application to the facts in the present case.
It is conceded that Ellsworth avenue was made through a rural district and that the property of the plaintiff sought to be charged was rural land. It would then be relieved from this mode of taxation unless other facts made it so chargeable. What are the other facts? As the first step towards procuring this improvement, a petition, to which the name of the plaintiff and twenty-seven other names were subscribed, was presented to the councils of the city of Pittsburgh. It declared the petitioners were the owners of a majority in interest of the property abutting on Ellsworth avenue, and that they desired to avail themselves of all the privileges of the Act of 2d April 1870, and asked for the passage of an ordinance directing the grading, paving and curbing of the same, and authorizing the election of commissioners. To this petition was added the affidavit of the plaintiff and two other signers thereof, averring the petition to be signed by the owners of a majority in interest of the property abutting on the avenue, and that the signatures were the genuine signatures of the petitioners.
The court substantially charged the jury that if they found the plaintiff in error signed the petition asking for the ordinance directing the grading and paving of Ellsworth avenue, under the Penn Avenue Act; that in pursuance thereof the ordinance was passed; that he was duly elected one of the commissioners, and acted as such in directing and superintending the work, selling the bonds of the city, expending the proceeds thereof on the street, and in making the assessments upon the properties, including his own, for which this suit was brought, he was estopped from denying the validity of the act, or its application to Ellsworth avenue, or the legality and validity of the mode of assessment provided in the act.
It is not alleged that the evidence of these facts was insufficient to submit to the jury, nor that its finding thereof was unjustified. Conceding the facts, it is contended by the plaintiff in error that they are insufficient to prevent his alleging the unconstitutionality of the act for the purpose of relieving himself from its operation.
In Pickard v. Sears, 6 Ad. & El. 469, a leading case of estoppel by conduct, it was said "the rule of law is clear that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time."
It may now be declared as a general rule, that where an act is done, or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what otherwise would be mere matter of evidence. It is not necessary that the party against whom an estoppel is alleged, should have intended to deceive: it is sufficient if he intended that his...
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