Newton v. Borough of Emporium
| Decision Date | 20 May 1909 |
| Docket Number | 307 |
| Citation | 225 Pa. 17,73 A. 984 |
| Parties | Newton v. Emporium Borough, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 15, 1909
Appeal, No. 307, Jan. T., 1908, by defendant, from order of C.P. Cameron Co., Oct. T., 1908, No. 15, quashing ordinance in case of Emily N. Newton et al. v. Emporium Borough. Affirmed.
Appeal from ordinance authorizing the paving of a portion of Fourth street in the borough of Emporium.
HALL P.J., filed the following opinion:
The town council of the borough of Emporium adopted an ordinance in due form requiring the curbing and paving of a certain part of Fourth street, in the borough of Emporium. The ordinance recited that whereas the petition of two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties bounding or abutting on the part of Fourth street between the west end of the brick paving now on Fourth street and the west side of Wood street has been presented to the council of the borough of Emporium requiring the said council to require the curbing and paving of said street, between the said points, with brick, stone or or other suitable material and to collect two-thirds of the cost and expense of the same from the owners of the real estate on said street; therefore, it was ordained and enacted that the said paving should be done.
Emily M. Newton and four others, owners of property abutting on that portion of Fourth street, affected by the ordinance filed their appeal from said ordinance and presented their petition asking that it be quashed. The grounds alleged in the petition are that the borough council was without jurisdiction to pass the ordinance for the reason that the necessary two-thirds of the owners of property, representing not less than two-thirds in number of feet of the property fronting and abutting on that part of Fourth street, proposed to be paved, had not signed the petition.
It appears from the testimony that the total frontage of the property abutting on that portion of Fourth street, proposed to be paved, is 1,757 feet seven inches, and two-thirds of this would be 1,171 feet eight and two-thirds inches. The sole question to be determined in the case is whether the abutting property owners representing two-thirds frontage signed the petition to the council requesting that this paving be done, thereby conferring upon it the necessary jurisdiction to pass the ordinance. The borough claims that the signers to the petition represent 1,245 feet, while the petitioners claim the petition in fact, only represents 1,098 1/2 feet. The difference of 146 1/2 feet arises out of a dispute as to what effect should be given to three signatures appearing on the petition, to wit: those of M. C. Tulis, John Hogan, and John F. Parsons. We will consider them in their order.
It is the uncontradicted testimony that M. C. Tulis is the owner of seventy-one and one-half feet and that he signed the petition, appending, however, to his signature the word "conditionally." He testifies that the petition was presented to him by a member of the town council and that he stated to him at the time that he signed the petition on the condition that the sewers should first be improved, as he thought it would be money wasted to pave the street before that was done. There is no evidence, however, that this conversation was ever repeated to the town council while in session or that any legal notice was given them as to what was meant by the word "conditionally" which followed his signature. We may, therefore, assume as a matter of law that the town council had no such official knowledge.
We think there can be no question that a petition to confer jurisdiction on a borough council to pave streets must be signed unconditionally by the owners of the necessary two-thirds of the feet frontage thereon, in order to fully and legally bind the petitioners. In the case of Von Steen v. Beatrice, 36 Neb. 421 (54 N.W. 677), the condition was that the grade should be satisfactory and that the trees should not be molested. The supreme court of Nebraska said: "We agree with the district court that the petition to confer upon the council jurisdiction must be unconditional, and that no argument is required to prove that the signatures should have been rejected." The Nebraska statute is different from ours only in the respect that it requires the petition to be signed by a majority of the owners representing a majority of the feet frontage, instead of two-thirds, and that it imposes the whole cost of the paving upon the abutting owners instead of two-thirds thereof. To the same effect is the case of Batty v Hastings, 63 Neb. 26 (88 N.W. 139). In the case of Norwood v. Mills, 8 Ohio 669, the signature was by the owner of the fee conditioned on the tenant's agreement to pay the costs, and the decision of the court was to the same effect. In all three of the decisions above cited, however, the condition was specified and the next question to be considered is whether the mere adding of the word "conditionally" to the signature, without specifying what the condition was, would be sufficient to render it invalid. We are reluctantly forced to the conclusion that it would, for the reason that the act requires the signature to be absolutely unconditional. The fact that the word "conditionally" followed the signature put the council upon notice that it was not such an unconditional signature as the law requires but that there was some condition attached to it, and it was entirely immaterial what that condition might be. The mere fact that there was any condition at all rendered the signature void for the purposes of...
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