City of Franklin v. Hancock

• Decision Date: 03 November 1902
• Docket Number: S 15
• Citation: 204 Pa. 110,53 A. 644
• Parties: Franklin v. Hancock, Appellant
• Court: Pennsylvania Supreme Court

53 A. 644

204 Pa. 110

Franklin v. Hancock, Appellant

Sno. 15

Supreme Court of Pennsylvania

November 3, 1902

Argued October 16, 1902 [Copyrighted Material Omitted]

Appeal, No. 15, Oct. T. 1902, by defendant, from judgment of Superior Ct., April T., 1901, No. 130, reversing judgment of C.P. Venango Co., Aug. T., 1900, No. 9, on verdict for plaintiff non obstante veredicto in case of City of Franklin v. James Denton Hancock. Affirmed.

Appeal from the Superior Court.

The opinion of the Superior Court by W. D. PORTER, J., reported in 18 Pa.Super. 398, was as follows:

The city of Franklin brought an action of assumpsit to recover from the defendant the amount of an assessment for the paving of Elk street and recovered a verdict, subject to the opinion of the court on a question of law reserved. The question was reserved in this form: "If the court should be of the opinion that there is no evidence on which to rest this verdict, then judgment to be entered upon the verdict. Otherwise judgment to be entered for the defendant, non obstante veredicto." The form of the reservation was not excepted to, and the substance thereof only has been argued on this appeal. The question for consideration is, has the city a right to recover in this form of action, under the undisputed facts as to the manner in which the assessment in this case was made?

An assessment by a municipality for paving a street is a tax and cannot be collected as an ordinary debt by a common-law action, unless such remedy is given by statute McKeesport Boro. v. Fidler, 147 Pa. 532. It is well settled by authority that it is within the legislative power of the commonwealth to grant to municipalities a remedy for collection of taxes against property by a personal action against the owner: Weber v. Reinhard, 73 Pa. 370; In re Center St., 115 Pa. 247; Philadelphia v. Merklee, 159 Pa. 515; Commonwealth v. Mahon, 12 Pa.Super. 616. The city of Franklin asserts statutory authority to maintain this action under the Act of May 18, 1871, P.L. 896, the 1st section of which conferred upon the corporate authorities of the city of Franklin power and authority "to pave in such manner as they may deem for the best interests of said city, any streets, courts or alleys in said city, and upon the completion of such paving, to assess for contribution against the respective properties fronting or adjacent thereto, whether improved or unimproved, and the owner thereof, the pro rata costs and expenses of said paving in front of each respective lot or property, according to the front width thereof, to the middle of every such street, court or alley; and in all cases of neglect or refusal of the owner of said property to pay said city authorities said pro rata costs and expenses within thirty days after notice, said city authorities may proceed to collect the same, with ten per cent additional, by suit in an action at law, or upon liens filed in the nature of a mechanic's lien."

It is contended upon behalf of the defendant that this act is invalid and comes into conflict with the constitutions of the commonwealth and of the United States in the following particulars, viz: (a) The subject of the act is not expressed in its title. (b) It provides for the assessment of the entire cost of the improvement by the foot-front rule without reference to special benefits, and rests the assessment on an illegal basis, and is void as in contravention of the fourteenth amendment of the Federal constitution prohibiting the taking of property without due process of law. (c) It furnishes a means of discrimination between the owners of property abutting on the street to be paved, by the method of rebates or exonerations provided for in the part of the act following that above quoted. The city was incorporated by the Act of April 4, 1868, P.L. 693, entitled, "An act to incorporate the city of Franklin." Nothing more general and comprehensive could have been devised. It included the entire range of the boundaries, organization, functions and powers of the municipality, so far as they were within the legislative control. When the Act of May 18, 1871, P.L. 896, was entitled, "A supplement to an act entitled, 'An act to incorporate the city of Franklin, in the county of Venango,' approved the fourth day of April, Anno Domini one thousand eight hundred and sixty-eight," it was, so far as the title was concerned, as broad as the original act. It comprehended everything relating to the municipal organization and powers that could be the subject of legislative action which was germane to the corporate functions and powers of the particular city with regard to which the title gave direct notice that the legislation dealt. We are of the opinion that the title of this act met the requirements of the constitution: Pittsburg v. Daly, 5 Pa. Superior Ct. 528; Mauch Chunk v. McGee, 81 Pa. 433. The validity of the application of the foot-front rule as the method of ascertaining the proportion in which property owners should contribute to the cost of this improvement is not complicated by any question as to the character of the property or as to whether this was an original paving of the street. It is not disputed that the property fronting upon the street was urban and uniform in character, and it is conceded that there has been no previous attempt to improve or pave the highway as a street. We sustained an assessment made under the foot-front rule for an improvement of this character, under like conditions, in Harrisburg v. McPherran, 14 Pa.Super. 473, and we cannot profitably add anything to the opinion of President Judge RICE in that case.

The provision of the act with regard to rebates out of road taxes to those who had paid assessments authorized by the act, required the corporate authorities to exonerate, from year to year, from the payment of all road taxes on such property, until said property holder had thus been reimbursed for the principal moneys so paid by them upon assessments. In Erie v. Griswold, 5 Pa. Superior Ct. 132, we held that an ordinance of the city, within the limits of authority conferred by the legislature allowing those who had paid assessments of this character an abatement of their general city taxes on the same property, during subsequent years, equivalent to a portion of the assessment for improvements, was not in conflict with the provisions of the constitution. The legislation now under consideration limits the abatement of taxes to be allowed on account of the payment of such assessments to road taxes, but the principle involved is not different. "When in the exercise of the discretion of the municipal authorities a local improvement has been determined upon, and it has also been determined that it would be just to make the city and the abutters bear the expense proportionately, every dollar which one of the latter pays in the first instance beyond his due portion is in relief of the city and goes to the benefit of other taxpayers. A law which in its practical operation permits him to apply this overpayment in discharge of the general taxes against the same property manifestly tends to produce uniformity and equality of taxation rather than the contrary." These considerations lead us to the conclusion that the act of 1871 is constitutional. The city of Franklin never having accepted the provisions of the acts regulating the government of cities, passed in 1875 and 1889, nor of the Act of June 25, 1895, P.L. 275, is not subject to the provisions of these acts, but as to its municipal powers and the authority of its corporate officers and the mode of exercising the same, is governed by its own charter; and it has the right to avail itself of the provisions of the act of 1871 in assessing and collecting the costs and expenses of paving a street: Beaumont v. Wilkes-Barre, 142 Pa. 196; Lackawanna Twp.; Harris's Appeal, 160 Pa. 494.

The appellant contends, however, that even if the legislation is constitutional, the grant of the remedy...