Bidwell v. City of Pittsburgh
| Decision Date | 07 January 1878 |
| Citation | 85 Pa. 412 |
| Parties | Bidwell v. City of Pittsburgh. |
| Court | Pennsylvania Supreme Court |
November 8, 1877
Where a party is active in procuring an ordinance from the councils of a city directing the grading and paving of a street, is elected a commissioner under such ordinance and charged with the superintendence and control of the improvement, sells the bonds of the city and expends the proceeds thereof to defray the cost and makes the assessments upon properties abutting on said street after a particular mode of assessment, he is estopped from denying the validity of the Act of Assembly in accordance with which said ordinance was passed and the mode of assessment thus adopted.
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.
Scire facias sur municipal claim, issued by the city of Pittsburgh against D. W. C. Bidwell, to recover the cost of grading and paving Ellsworth avenue, done under the provisions of the Act of April 2d 1870, Pamph. L. 796 entitled " An Act for the improvement of Penn avenue and other avenues and streets in the city of Pittsburgh." The 26th section of this act made it general, by providing that its provisions might be extended to other streets and avenues, on a petition of a majority of the property holders whose properties fronted thereon.
By this act it was provided that five commissioners should be selected by the property holders along said avenue, who were to be charged with ascertaining the cost of the proposed improvement, have control of the same, and make the assessments to defray the expenses. These assessments were to be made according to the number of feet each property abutted upon said avenue, and were to remain a lien upon said property, to the extent of one hundred and twenty feet in depth, until they were paid. These assessments were made payable in ten annual instalments. The work, while it was in progress, was to be paid for with city bonds, to be issued upon the requisition of said commissioners, which bonds were to be redeemed by a fund made up from the assessments.
Ellsworth avenue, which extends through a rural district, was graded and paved under the provisions of this act, a petition having been presented to the councils of the city of Pittsburgh, an ordinance enacted, and commissioners elected in pursuance therewith.
The cost of the improvement was $166,000, for which city bonds were issued.
Mr Bidwell, who owned property on this avenue, was among those who signed the petition to councils to have the same graded and paved, and having been elected one of the commissioners he acted as such in directing and superintending the work, selling the bonds, expending the proceeds thereof on the streets, and in making the assessments on the various properties, including his own.
On the announcement of the decision in Seely v. The City of Pittsburgh, 1 Norris 360, wherein the Supreme Court held that the Act of 1870, in so far as it applied the frontage rule of valuation to rural property, was unconstitutional, the city councils of Pittsburgh instructed their solicitor to proceed upon a lien against property-holders who had taken part in procuring some improvement to be made, so that it might be determined whether there was not some estoppel by which these owners of property might be made to pay their respective assessments. Mr. Bidwell having been active in the promotion of the improvement of Ellsworth avenue, was selected as one of these owners of property, and against him this suit was then brought.
The defendant resisted the claim on various grounds, among which were these: that the Penn Avenue Act was unconstitutional; that the frontage rule of valuation, as applied to rural lands, such as these along Ellsworth avenue, was illegal and unjust; that said avenue is a great public thoroughfare mainly for public use, and it is unjust and illegal to assess private property abutting thereon for the cost of improving it for said public use; that it was inequitable to impose the liability upon those who were active in promoting the improvement, while others are relieved therefrom who made no protest while the work was in progress but acquiesced therein, and who derive an equal benefit therefrom; that in some cases there had been no petition for grading and paving, and in some no petition was required by law, and the cost of these improvements must be paid by general taxation, and if defendant is compelled to pay this assessment his property will thus be made liable for an excessive and unjust share, while his efforts in behalf of this improvement had been made with the understanding that each street should pay for its own improvement, and each property-holder in proportion to the number of feet his property abutted on said street.
It is better that this case should go up to the Supreme Court, on the question of estoppel. For that reason I have ruled out nearly all the evidence offered by the defendant. If this point is decided against him, his offers become immaterial.
I therefore instruct you, that, if the defendant signed the petition to councils 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 the defendant 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 making the assessments upon the properties, including his own, for which this suit is brought; he is now estopped from denying the validity of the Act of Assembly, or its applicability to Ellsworth avenue, or the legality and validity of the mode of assessment provided in the act, and your verdict should be for the plaintiff."
The verdict was for plaintiff, and the defendant took this writ assigning this instruction of the court for error.
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...
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