City of Philadelphia v. Evans

• Citation: 139 Pa. 483,21 A. 200
• Decision Date: 19 January 1891
• Docket Number: 409
• Parties: PHILADELPHIA, TO USE, v. S. T. EVANS
• Court: United States State Supreme Court of Pennsylvania

21 A. 200

139 Pa. 483

PHILADELPHIA, TO USE, v. S. T. EVANS

No. 409

Supreme Court of Pennsylvania

January 19, 1891

Argued January 8, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 409 January Term 1890, Sup. Ct.; court below, No. 117 June Term 1889, C.P. No. 2.

On June 19, 1889, the city of Philadelphia, to the use of B. M Shanley, and John M. Mack, trading as Shanley & Mack, filed a municipal claim against Samuel T. Evans, owner, etc., of a certain lot of ground on Girard Avenue, for the paving of said avenue in front of the defendant's lot, "in the space formerly occupied as a market place," with granite blocks; the cost of such paving being assessed at $2.98 per square yard, and the total amount for which the claim was filed being $110.28.

A scire facias upon the claim having been issued, the defendant on December 6, 1889, filed an affidavit of defence, making the following averments:

"The claim on which this writ is issued seeks to enforce a charge against the property therein described, of which deponent is the owner, for paving so much of the unpaved space reserved for market purposes as was in front of the property. The kind of paving which is in the other part of the street now, and before the paving herein charged was directed to be done, is cobblestone, and that sued for is granite block, charged at the price of two dollars and ninety-eight cents for each square yard; and deponent is advised that said paving has been in one of the incorporated districts of the county of Philadelphia, whose authority to file claims for paving was founded on the act of April 16, 1840, § 9, P.L. 412. Said districts exercised said power by paving with cobble stones, until the act of February 2, 1854, and had, in fact exercised the power in this locality by paving that done with cobble stones.

"By the act of February 2, 1854, which extended the boundaries of the city to embrace the whole of the territory of the county no new power was granted, but the then existing practice was confirmed in § 40, which provided that 'it may be prescribed by ordinance that paving of streets . . . shall be done at the expense of the owners of the ground in front whereof such work shall be done, and liens may be filed by the said city for the same, as is now practiced and allowed by law.' The authority to continue paving only of the same character, if the owners are sought to be charged, is also made clear by the limitation of the charge therefor in a supplement to the said act of 1854, that of § 8, act of April 21, 1855, P.L. 266, which fixes the charge 'for street paving at one dollar per square yard, and all extra or further charge . . . shall be paid out of general taxation;' and deponent is advised that although by an act passed March 30, 1866, P.L. 354, said limitation only is repealed, and the power to fix charges conferred upon the councils, yet no power is given to change the character of the paving existing in a street at the expense of the owners. And deponent is advised that there is no authority of law to charge his ground with the cost of paving with granite blocks.

"And deponent further saith that Girard Avenue, at the time the paving of the market plots was authorized to be paved, was occupied by the tracks of the Richmond & Schuylkill Passenger railway which was incorporated by act of March 26, 1859, P.L. 241, and by the sixth section was made subject 'to the provisions of all ordinances heretofore or that may be hereafter passed by the councils of the city regulating city passenger railways;' that, at the time of said charter, the only ordinance in force was that of July 7, 1857, the third section of which provided, among other things, that all passenger-railroad companies 'shall be at the entire cost and expense of maintaining, paving, repairing, and re-paving that may be necessary upon any road, street, avenue, or alley occupied by them,' which duty deponent is advised operated upon said railway company as though in the text of its charter, and that by reason thereof the ground of deponent is relieved from the cost and charge of paving, if otherwise it was liable.

"And deponent further saith that the price charged for said paving is too much, and was paid at the rate fixed, by reason of a capricious exercise of power by the director of public works. It has been the uniform practice to exclude the months of December to March, both inclusive, as unfit months to do paving, and this work was done under the authority of an ordinance passed March 28, 1888, Ordinances, 107, which in nowise sought to change this prudent practice. By the delay of the grading, the contract therefor being made under an ordinance of September 25, 1888, bids were invited by the director of public works so that the paving could not be reasonably done before December 1st, and a provision was inserted compelling the completion of the work before December 31st, under a daily penalty for non-completion. This caused an advance in the cost, of eighty cents a yard, and, the work being done in December, has been the subject of constant repair since. And deponent is advised, if otherwise liable, he would only be liable for the cost of said work, done in the usual manner, which would have been about two dollars and ten cents a square yard."

The plaintiff thereupon entered a rule for judgment for want of a sufficient affidavit of defence, upon the hearing whereof it was agreed by counsel that the court should consider, if relevant, with the same effect as if it were a part of the affidavit of defence, an ordinance enacted by the city on April 1, 1859, containing the following provisions:

"§ 1. . . . That all streets or highways, which are unpaved at the time of laying the rails, shall be kept in good traveling order by the railroad company, until the same shall be paved by the owners of property thereon; after which they shall be re-paved, repaired, and kept in good order at the proper cost of the railroad company occupying the same."

"§ 6. That so much of the third section of the ordinance, approved July 7, 1857, to which this is a supplement, as provides that the railroad companies shall pave any street that has not heretofore been paved, be and the same is hereby repealed."

After argument, the court, without opinion filed, made the rule for judgment absolute, and judgment was thereupon entered for $117.85. The defendant then took this appeal, specifying that the court erred:

1. In entering judgment for the plaintiff.

The judgment is affirmed.

Mr. David W. Sellers, for the appellant:

1. No authority exists to charge the defendant's property with the cost of granite paving. Before the consolidation of the city of Philadelphia with the incorporated districts and townships which occupied the residue of Philadelphia county, all public work on highways, within the area of the old city, was done at the expense of the fund arising from general taxation; while, in the districts, the paving of streets was done by special and local taxation, the ground fronting on the streets being charged at a fixed rate. The proceedings to collect such charges for paving were founded on §§ 9, 10, act of April 16, 1840, P.L. 412. Although that act does not mention the kind of paving, the only kind in use for more than fifty years prior to 1854 was of cobble stones, and the consolidation act of February 2, 1854, P.L. 43, expressly recognized this kind of paving, by providing, in § 40, that paving might be done at the expense of lot-owners, and liens therefor filed by the city, "as is now practiced and allowed by law;" and the first supplement thereto, the act of April 21, 1855, P.L. 266, impliedly does so, by limiting the charge for paving to $1 per square yard, the price of cobble stones. So general was the rule to use paving stones only, that by the act of April 5, 1859, P.L. 360, a "measurer of paving stones" was created. Subsequent legislation recognized the general rule that the city cannot compel property owners to pay for more expensive kinds of paving: Act of April 18, 1867, P.L. 1303; and see Hammett v. Philadelphia, 65 Pa. 157.

2. The paving of the middle of a street with different material from that adopted for the sides, will not justify charging the excess of the cost against abutting properties; having once adopted a certain kind of paving for a street, the city has exercised its discretion and cannot make a change, except on petition of a majority of the property owners, under the act of April 18, 1867, P.L. 1303: Wistar v Philadelphia, 80 Pa. 512; Slocum v. Philadelphia, 11 W.N. 167. But the cost of paving the middle of Girard Avenue cannot be charged against the property owners at all, for the reason that the act of March 26, 1859, P.L. 241, has imposed it upon a street-railway company, as is set forth in the affidavit of defence. Although the primary duty to pave and repair is in the city, the street-railway company is responsible for the cost of the paving: Philadelphia v. Weller, 4 Brewst. 25; Frankford etc. Ry. Co. v. Philadelphia, 17 W.N. 245; Harrisburg v. Railway Co., 1 Pears. 298. Ex necessitate rei, then, the abutting ground must be relieved, as double payment is a thing unknown to the law. The ordinance of April 1, 1859, which it was agreed might be considered by the court, is...