Bowser v. Philadelphia

• Decision Date: 03 March 1910
• Docket Number: 238-1908
• Citation: 41 Pa.Super. 515
• Parties: Bowser, Appellant, v. Philadelphia
• Court: Pennsylvania Superior Court

41 Pa.Super. 515

Bowser, Appellant, v. Philadelphia

No. 238-1908

Superior Court of Pennsylvania

March 3, 1910

Argued October 5, 1909

Appeal by plaintiff, from judgment of C.P. No. 4, Phila. Co.-1908 No. 4,035, for defendant on case stated in suit of Seward L Bowser v. City of Philadelphia.

Case stated to determine liability for charges for permit to connect with sewer.

The facts are stated in the opinion of the Superior Court.

Error assigned was in entering judgment for defendant on case stated.

A. U Bannard, with him Wm. E. Caveny, for appellant. -- The liability for public work is prima facie with the public. Without the special benefit there can be no special tax: Phila. to use v. Market Co., 161 Pa. 522; West Third Street Sewer, 187 Pa. 565; City of Erie v. Russell, 148 Pa. 384.

There was no liability aside from the assessment and the lien: City v. Matchett, 116 Pa. 103; Lawrence v. City, 14 W.N.C. 421; Com. ex rel. Taylor v. Wagner, 24 W.N.C. 171; Miller v. Meadville, 14 Pa. Dist. 27.

Ernest Lowengrund, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee. -- No one can read the terms of the ordinance of 1895 without being convinced that the charges prescribed were for the breaking of the street alone, together with such incidental services, in supervising the connection, etc., as had theretofore been the subject of separate charges: Gilham v. Real Estate Trust, etc., Co., 203 Pa. 24.

The difference between assessments or taxes and such a charge as is here in question is manifest. Such taxes or assessments operate in invitum. They must be paid by the person or property against which they are assessed, whether willingly or not: Borough of McKeesport v. Fidler, 147 Pa. 532; Fisher v. Harrisburg, 2 Grant, 291; Erie v. Church, 105 Pa. 278; Olive Cemetery Co. v. City, 93 Pa. 129.

Charges like the present one have often been sustained by the Supreme Court of this state, and by the county courts, as valid and proper regulations: Gilham v. Real Estate Trust, etc., Co., 203 Pa. 24; Com. v. Wagner, 24 W.N.C. 171; Boswell v. City, 15 W.N.C. 169; Opinions City Solicitor, Phila., 1884, pp. 80, 84; 1887, p. 45; 1889, p. 45.

That an owner desiring gas, water or sewer connections must conform to reasonable regulations with respect to payment therefor is decided among other cases in Altoona v. Shellenberger, 6 Pa. Dist. 544; Bower v. U. G. I. Co., 37 Pa.Super. 113; Miller v. Gas Co., 206 Pa. 254; Reading v. Shepp, 13 Pa. C.C. 634; Com. v. Phila., 132 Pa. 288; Girard Life Ins. Co. v. Phila., 88 Pa. 393; Brumm's App., 22 W.N.C. 137.

Ordinances allowing an abatement to those who have paid assessments upon municipal improvements, from their taxes on the same property, are valid and constitutional if duly authorized: Franklin v. Hancock, 204 Pa. 110; Erie v. Griswold, 5 Pa.Super. 132.

In many cases outside of this state similar regulations have been sustained, requiring contribution to the cost of sewers upon connection therewith, irrespective of any right to levy a municipal assessment upon the laying of the sewer, or in addition to such assessment. See Carson v. Brockton Sewerage Commission, 182 U.S. 398 (21 S.Ct. 860); Hill v. St. Louis, 159 Mo. 159 (60 S.W. 116); Hermann v. State, 54 Ohio, 506 (43 N.E. 990); Ranlett v. Lowell, 126 Mass. 431; 2 Dillon, Municipal Corp. (4th ed.), secs. 805 et seq.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

PORTER, J.

The parties agreed upon a case stated which set forth the following facts material to the determination of the question involved: Bowser is the owner of a tract of land at the corner of Wingohocking and North Sixteenth streets in the city of Philadelphia. He erected upon this property, in 1906, thirteen houses fronting on Wingohocking street and twenty-nine houses fronting on North Sixteenth street; no one of said forty-two properties had a frontage exceeding sixteen feet. The city in the exercise of its police power had ordained that these houses, respectively, must be connected with the public sewer in the street upon which they fronted. The plaintiff, on August 16, 1906, applied to the city authorities for permits to make the sewer connections for said forty-two houses, thirteen of the connections to be made with the Wingohocking street sewer and twenty-nine with that on North Sixteenth street. He tendered to the proper officers the sum of $ 42.00, contending that the sum of $ 1.00 for each permit was all that he could lawfully be required to pay; the streets being unpaved. The officer of the city asserted that the amount which the plaintiff was by the law required to pay for said permits was $ 357, that is $ 8.50 for each permit, the said amount being made up of $ 1.00 charged for opening the street and $ 7.50 charged for making the sewer connection; and refused to issue the permits unless that amount was paid. The plaintiff would have been liable to a penalty if he had failed to connect the houses with the sewer, and he would have been liable to a penalty if he had made the connections without obtaining the permits. It was thereupon agreed between the plaintiff and the city that if the plaintiff would pay the $ 357 which the officer of the city demanded, such payment should not be considered voluntary, and the plaintiff should be entitled to sue for and recover any part of the charge which was excessive. The plaintiff then paid the amount under protest, and the permits were issued. It was further agreed, in the case stated, that the sewer in Wingohocking street had been constructed by the city in the year 1899, that the entire cost thereof had been paid by the city, and that no abutting property had been assessed for said construction, the same being then rural property. The sewer in North Sixteenth street had been constructed, in 1884, by William F. Shaw, the owner of a property to the south of that now owned by plaintiff; that Shaw had constructed this sewer at his own expense, under the provisions of sec. 8 of an ordinance of May 12, 1866, p. 142, by force of which the sewer became a public one after the lapse of ten years, which period expired in 1894. The ordinance of the city approved March 9, 1867, p. 68, provided: " That from and after May 1st, 1867, any person who shall be the owner or lessee of premises, desiring to connect with any of the sewers in a street, shall make application at the Department of Surveys, upon a book prepared for that purpose, and shall pay for such privilege of connection the sum of $ 7.50 for all premises not exceeding sixteen feet in width, . . . . except they shall have paid proportionately for the construction of said sewer, in which case the sum of $ 3.00 shall be paid." The second section of the ordinance of the city approved March 30, 1895, provided that no roadway of any street shall be opened, nor any street tunneled " for the purpose of making connection with or repairing any underground service laid thereunder until a permit to do so shall have been obtained" by application to the bureau of highways. The chief of said bureau is thereupon required to furnish the applicant with a certificate setting forth the charges and costs of permit as provided in sec. 3. Upon payment of the sum, " and upon the presentation of a receipt therefor, duly signed by the receiver of taxes, the applicant shall be entitled to receive a permit from the bureau or bureaus having charge of the particular part or parts of the underground service desired to be connected with or repaired, which permits, duly signed by the chief of the bureau shall be full and sufficient authority for such applicant to break the street, subject only to the supervision of the various bureaus as provided by law." By sec. 3 of this ordinance the charges are regulated according to the various kinds of paving laid in the streets in which the connection is to be made, which is to be repaved by the city authorities, and the charge for a permit where the street is unpaved is fixed at $ 1.00. Both Wingohocking street and North Sixteenth street at the location in question, are unpaved. The city bases its right to retain the amount which it compelled the plaintiff to pay upon the provisions of the ordinances above recited, contending that applicants for permits must pay the aggregate of the amounts fixed as the charge for a permit under each ordinance. The plaintiff acquired the property in question long after the city had constructed and paid for the sewer in Wingohocking street and after the sewer constructed by Shaw in North Sixteenth street had become a public sewer. He had not contributed to the cost of the construction of either of these sewers, nor had any of his predecessors in title so contributed. The court below, being of opinion that the city was entitled to exact the entire amount paid by the plaintiff entered judgment in favor of the city, and the plaintiff appeals.

The case stated, while particularly reciting the provisions of the ordinances hereinbefore quoted, specifically agreed that all acts of assembly and all other ordinances of the city bearing upon or relating to the question involved should be taken to be a part of the case stated, as if the same had been set forth at length. The counsel for both parties have under this provision of the case stated, referred to and commented upon the effect of the provisions of an ordinance approved March 30, 1889, which ordained that thereafter " all persons desiring to connect with any water-pipe, sewer, drain or conduit, or desiring to open any public highway for any other purpose, shall pay four dollars for a permit therefor . . . . which payment shall include all privileges of connections, all services to be rendered by any...