Investor's Realty Co. v. City of Harrisburg

• Decision Date: 08 July 1924
• Docket Number: 7
• Citation: 281 Pa. 200,126 A. 236
• Parties: Investor's Realty Co. v. Harrisburg, Appellant
• Court: Pennsylvania Supreme Court

126 A. 236

281 Pa. 200

Investor's Realty Co. v. Harrisburg, Appellant

No. 7

Supreme Court of Pennsylvania

July 8, 1924

Argued May 26, 1924

Appeal, No. 7, May T., 1924, by defendant, from judgment of Superior Ct., March T., 1922, No. 11, reversing judgment of C.P. Dauphin Co., Jan. T., 1920, No. 77, in favor of defendant n.o.v. in case of Investors' Realty Co. v Harrisburg. Reversed.

Appeal from judgment of the Superior Court. See 82 Pa.Super. 26.

The facts appear by the opinion of the Supreme Court.

Judgment of common pleas reversed. Defendant appealed.

Error assigned was, inter alia, sustaining assignment of error from the common pleas entering judgment for defendant n.o.v quoting record.

The judgment of the Superior Court is reversed, and that of the court of common pleas is affirmed.

John R. Geyer, City Solicitor, for appellant. -- When the legislature undertook to say that the "cities are hereby authorized and empowered to refund to the said owners of property," it is apparent that they did not intend to direct them or require them to return it: McDade v. Chester, 117 Pa. 414, 424; Smith v. Selinsgrove, 199 Pa. 615; Warner v. Poor Directors, 38 Pa.Super. 437; Kennedy v. Meyer, 259 Pa. 306.

The mandatory construction given to the act makes it unconstitutional since this is a subject not clearly expressed in its title: Davey v. Ruffell, 162 Pa. 443; Provident L. & T. Co. v. Hammond, 230 Pa. 407; Phoenixville Boro., 109 Pa. 44; Stegmaier v. Jones, 203 Pa. 47; Federowicz v. Brobst, 254 Pa. 338.

George R. Barnett, with him John H. Alricks, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

Ordinarily a property is charged with the cost of municipal improvements only to the middle of the street upon which it abuts, but because plaintiff's property faces nonassessable land the City of Harrisburg assessed against it the cost of paving the full width of the street, and of curbing both sides of it. Plaintiff paid the bill without protest or objection, but as the abutting owners were later held to be legally liable only for the work done to the centre of the street, plaintiff sued to recover back the excess payment made by it. The jury rendered a verdict in its favor; the court of common pleas, in banc, entered judgment for defendant non obstante veredicto; the Superior Court (three judges dissenting) reversed, and directed that judgment be entered on the verdict, but later certified the case to us, under the authority contained in section 10 of the Act of June 24, 1895, P.L. 212, 220.

The court of common pleas, in its opinion, entirely ignored the Act of July 5, 1917, P.L. 682, -- although it was referred to in the statement of claim, -- and held that, as the payment was a voluntary one, our rulings in Union Insurance Co. v. City of Allegheny, 101 Pa. 250; Peebles v. City of Pittsburgh, 101 Pa. 304; Shenango Furnace Co. v. Fairfield Township, 229 Pa. 357, and kindred cases, forbade recovery. Aside from that act, this conclusion was clearly correct. When the case reached the Superior Court, however, the statute became the storm-center of controversy, and the majority decided that, although it was in form permissive, it was in legal effect mandatory, and hence plaintiff was entitled to recover.

It is not our purpose to enter the lists on this interesting subject, since we are of opinion that plaintiff cannot recover, by virtue of the statute, no matter which of the two conflicting views is correct. Its title is "An act authorizing cities to refund moneys paid by property owners into their treasuries, when a court of competent...