Erie City v. Willis

• Decision Date: 21 November 1903
• Docket Number: 156-1904
• Citation: 26 Pa.Super. 459
• Parties: Erie City v. Willis, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 459

Erie City v. Willis, Appellant

No. 156-1904

Superior Court of Pennsylvania

November 21, 1903

Argued May 16, 1904

Appeal by defendant, from judgment of C.P. Erie Co.-1903, No. 4, on verdict for plaintiff in case of City of Erie v. A Piece of Land Fronting on Myrtle Street and Flora E. Sharp Willis and E. B. Willis, Owners or Reputed Owners, with notice to Sarah Cochran.

Scire facias sur municipal lien for a sewer.

From the record it appeared that the defendant moved to strike off the lien for the following reasons:

1. No items are given which go to make up the gross amount for which payment is sought to be enforced and for which said lien is filed, as required by law to be given.

2. That the lien filed in this case was not docketed in the mechanic's lien docket. Nor was the scire facias issued from such entry, nor was the case entered in the judgment index of the proper court, as required by act of assembly, in such cases made and provided.

3. That no legal notice of the time and place of assessment of the cost of said lateral tile sewer against the abutting property owners was given to defendants as required by law.

4. That no locality index was kept by the prothonotary of Erie county, in which the claim of the city of Erie, plaintiff was entered as required by act of assembly.

The court overruled the motion.

The court refused binding instructions for defendant.

Verdict and judgment for plaintiff for $ 109.20. Defendant appealed.

Errors assigned among others were in overruling motion to strike off lien; in refusing binding instructions for defendant.

Albert B. Osborne, with him Henry A. Clark and Henry C. Yaru, for appellants. -- A city can create a valid lien for improvement of streets only when the improvement is made in pursuance of law and the mode established by statute or ordinance is strictly followed: Ferguson's App., 159 Pa. 39; Hershberger v. Pittsburg, 115 Pa. 78; Scranton v. Kingsbury, 4 Pa. Dist. 555; Western Pa. Ry. Co v. Allegheny, 92 Pa. 100; O'Byrne v Philadelphia, 93 Pa. 225.

Where the mode of making improvements is prescribed by statute the mode in such cases constitutes the measure of power: Zottman v. City of San Francisco, 20 Cal. 96; Dillon on Municipal Corporations, pages 944 and 946; Election of Little Beaver Twp. School Directors, 165 Pa. 233.

The provisions of the act of 1901 in relation to notice, manner of filing and docketing lien, issuing scire facias and requisites as to the contents of the claim filed are mandatory: Norwegian Street, 81 Pa. 349; Hepburn v. Philadelphia, 149 Pa. 335; Philadelphia v. Stanger, 8 W.N.C. 151; Fanning v. Gregoire, 57 U.S. 524; Parker v. Overman, 59 U.S. 137.

William G. Crosby, for appellee. -- Statutes prescribing time and mode of proceedings by public officers are directory: 23 Am. and Eng. Ency. Law (1st ed.) 461: Pittsburg v. Coursin, 74 Pa. 400; White v. McKeesport Borough, 101 Pa. 394; Beaumont v. Wilkes-Barre, 142 Pa. 198.

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

OPINION

RICE, J.

This case grew out of the construction of a lateral sewer in Myrtle street from Twenty-ninth street to Peach street. We have not been furnished a copy of the ordinance, but we assume from the course of the argument that it provided that the cost be assessed upon the abutting properties " by an equal assessment by the foot front," etc. The claim filed against this piece of land was for its proportion of the cost of the construction of the sewer; also for the cost of house connections, and five per cent penalty for nonpayment of the assessment within the time required by the ordinance.

The matters assigned as error are the refusal of the court to strike off the lien, certain rulings upon evidence and instructions given to the jury upon the trial of the sci. fa., and the refusal to enter judgment for the defendant upon the point of law reserved non obstante veredicto. The questions thus raised are summarized in the appellants' statement of the questions involved under five heads, and we will discuss them in the order there presented.

1. It is suggested, although the point is not argued in the appellants' printed brief, that the way described in the claim as Myrtle street was not a legally opened street. This was a mixed question of law and fact. The learned trial judge instructed the jury that although the street was established by ordinance in 1874, yet it was necessary to make it a public street that it " be opened by the city on the ground and used as a street by the public," and submitted to them the question whether " there is a street there on the ground used by the public which has been accepted by the city and opened as a public street." So far as this proposition involved matter of law there was no error of which the defendants can complain, and there was ample evidence to warrant the jury in finding the essential facts referred to in it.

2. Section 35 of the Act of May 16, 1901, P. L. 224, provides that whenever the cost of local improvements of any kind in cities of the third class is to be assessed upon the abutting properties, at least five days' notice shall be given of the time and place of making the assessment, also that notice be published in one or more newspapers for three successive days. Notice was duly published the required number of days and was served on the owner on April 21. But as the assessment was to be made on April 25, this was one day short. The assessment consisted of an apportionment of the cost of the improvement on the properties abutting upon it by the foot front rule and was made by the city engineer. He put this in tabulated form, showing cost of the improvement, including the itemized accounts of the several amounts charged to each property, and returned it to councils. Having been approved by them and the mayor, the claims for the amounts thus assessed went into the hands of the proper city officer for collection. No question is raised as to the regularity of the assessment, except as to the notice. But it is claimed that the statutory provision as to that matter is mandatory, and must be obeyed under the penalty of having the assessment and all subsequent proceedings declared void. What we have to say upon that subject is to be understood as relating only to an assessment by the city engineer, whose simple duty is to apportion the cost as above stated. A leading case upon the subject of mandatory and directory provisions of a statute is Bladen v. Philadelphia, 60 Pa. 464, where Justice Sharswood said: " It would not perhaps be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory; but negative words which go to the power or jurisdiction itself have never, that I am aware of, been brought within that category." This statement of the general rule, as any statement must, leaves considerable latitude for construction as particular cases arise, as will be seen by a comparison of the decision in Pittsburg v. Coursin, 74 Pa. 400, with the opinion of Mr. Justice Clark in Hershberger v. Pittsburgh, 115 Pa. 78. Both of these cases involved a construction of different sections of the Act of January 6, 1864, P. L. 1131. The latter related to sections 3 and 11, and it was strongly intimated but not positively decided that the provision as to the notice to be given by viewers appointed to appraise damages and benefits was intended " to impose a limitation upon the jurisdiction and power of the viewers," and therefore was mandatory. The former case involved a construction of section 7, and it was held that the provision relative to the notice to be given by the recording regulator was directory only. There is no conflict between these cases, and it is very evident that in deciding the Hershberger case, the court did not intend to disturb or qualify in any way the ruling in the Coursin case; for, after quoting from it to show the point decided, Justice Clark said: " A statute directing the mode of procedure by a public officer is in general deemed directory; a precise compliance is not essential to the validity of the proceedings unless so declared." The difference between the procedure under ...