Pittsburg v. Walter

• Decision Date: 23 October 1871
• Citation: 69 Pa. 365
• Parties: Pittsburg <I>versus</I> Walter.
• Court: Pennsylvania Supreme Court

Page 365

69 Pa. 365

Pittsburg versus Walter.

Supreme Court of Pennsylvania.

October 12, 1871.

October 23, 1871.

October 12th, 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 143, to October and November Term 1870 J. F. Slagle, for plaintiff in error.—The plaintiffs were not required to prove the regularity of the proceedings. With the exception of nunquam indebitatus, which is really no plea, all the pleadings are affirmative, and we might have rested upon the offer of the lien itself: Lybrandt v. Eberly, 12 Casey 347; Van Billiard's Adm'r v. Nace, 1 Grant 233. It is not necessary for the plaintiff to prove affirmatively, that the ordinance has passed after application by a majority of property-owners. The councils have full authority to direct the grading and paving of streets. Their jurisdiction is undoubted, and the Act of 1868 is merely a direction as to its exercise. An ordinance passed by councils must be presumed to have been passed in due form and upon proper authority: Fowler v. Jenkins, 4 Casey 178; McCauley v. Chicago, 22 Ill. 563; New Orleans v. Halpin, 7 La. Ann. 185; Webber v. Gottschalk, 15 Id. 376; Risley v. St. Louis, 34 Missouri 404; People v. Rochester, 21 Barb. 656.

Stoner & Patterson, for defendant in error, as to the plea, cited Stephen on Pleading 155. Municipal lien is not a record; Davis v. Church, 1 W. & S. 240.

The omission of the written application which the law required should precede the action of councils was not merely an irregularity, it was a defect of jurisdiction: Graves v. Otis, 2 Hill Rep. 466; Staples v. Fairchild, 3 New York Rep. 41; People v. The Commissioners of Seward, 27 Barb. 94; Porter v. Purdy, 29 New York 106; Dwight v. City Councils of Springfield, and cases cited, 4 Gray 107. The councils of Pittsburg are a special tribunal: Hodges v. City of Buffalo, 2 Denio 100. Their jurisdiction must therefore be proved; Fowler v. Jenkins, 4 Casey 176; Sharp v. Speir, 4 Hill 76; People v. Ontario, 16 Barbour 286; People v. Goodwin, 1 Seld. R. 568; People v. Soper, 3 Id. 428; Givens v. Miller, 12 P. F. Smith 133; Roberts v. Orr, 6 Id. 176; Kensington v. Keith, 2 Barr 218.

The opinion of the court was delivered, October 23d 1871, by

SHARSWOOD, J.

It is not disputed that Mahon street, for grading which the municipal claim in this case was filed, is within the territory comprehended in the terms of the proviso to the 11th section of the Act of April 1st 1868, Pamph. L. 567, which declares that no street or highway shall be opened, graded or paved in any part of the territory consolidated with the city of Pittsburg, under the Act of April 6th 1867, "unless upon the written application of a majority in interest of the owners whose property is situated or abuts thereon." To the scire facias upon the claim filed the defendant pleaded nunquam indebitatus. To this the plaintiffs did not demur, but went to trial upon it. It must be considered now, as it imports by its terms, that it put in issue whatever facts it was incumbent upon the plaintiffs to prove in order to support the assessment made upon the property of the defendant. There may not in strictness be any general issue in a scire facias upon such a claim, and the defendant ought perhaps to traverse by special pleas all the facts essential to the case of the plaintiffs. But if that were done it would not shift the onus probandi. It is not like an affirmative plea of payment — which is in confession and avoidance — which to a scire facias upon a mechanic's claim was held in Lybrandt v. Eberly, 12 Casey 347, not to put in issue the formal validity of the lien. Nunquam indebitatus is a traverse — a negative plea — not indeed as...