Pittsburgh's Pet'n v. City of Pittsburgh

• Decision Date: 16 March 1891
• Docket Number: 67,69,83,84,68,70,85
• Citation: 138 Pa. 401,21 A. 757
• Parties: PITTSBURGH'S PET'N, FOR BOARD OF VIEWERS; G. I. WHITNEY v. v. CITY OF PITTSBURGH; T. B. ATTERBURY v. CITY OF PITTSBURGH; J. A. GILLESPIE v. CITY OF PITTSBURGH
• Court: Pennsylvania Supreme Court

21 A. 757

138 Pa. 401

PITTSBURGH'S PET'N, FOR BOARD OF VIEWERS; G. I. WHITNEY v. CITY OF PITTSBURGH;

T. B. ATTERBURY v. CITY OF PITTSBURGH;

J. A. GILLESPIE v. CITY OF PITTSBURGH

Nos. 67, 68, 69, 70, 83, 84, 85

Supreme Court of Pennsylvania

March 16, 1891 ^[*]

Argued February 13, 1891

APPEALS BY THE CITY OF PITTSBURGH FROM THE COURT OF QUARTER SESSIONS AND THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY; AND BY G. I. WHITNEY, T. B. ATTERBURY AND J. A GILLESPIE, FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

Nos 67, 68, 69, 70, 83, 84, 85 October Term 1891, Sup. Ct.; courts below, No. 41 December Term 1890, Q.S.; Nos. 596, 594, 595 March Term 1891, C.P. No. 1, in Equity.

PITTSBURGH'S PETITION.

On January 22, 1891, the city of Pittsburgh, by William C. Moreland, city attorney, petitioned the Court of Quarter Sessions of Allegheny county for the appointment of a board of viewers of street improvements. The petition averred:

That Pittsburgh is a city of the second class; that pursuant to the provisions of the street acts of June 14, 1887, P.L. 386, and May 16, 1889, P.L. 228, it constructed various sewers and boardwalks, and has opened, graded and paved several streets, and that it has now on hand some uncompleted work on sewers and streets; that said acts provide for the payment of the damages, cost and expenses of said improvements, by an assessment by the board of viewers provided for in said acts, upon the properties benefited thereby; that the Supreme Court of the state of Pennsylvania, in Wyoming St., 137 Pa. 494, recently decided that said act of 1887, so far as it "relates to the creation, functions, powers and compensation of the board of viewers," is in violation of § 7, article III., of the constitution; that said act of 1889 has substantially the same provisions respecting the "creation, functions, powers and compensation" of the viewers; that the said city, therefore, has no power or authority, contained in said acts, to collect assessments already made, or to cause new assessments to be made; that there already exists a liability on account of said improvements, which amounts to $1,228,886; that under both said acts there was and is power to make such improvements, and to cause to be assessed the damages, costs and expenses thereof upon the properties benefited; that, said acts being unconstitutional only in respect to the "creation, functions, powers and compensation" of the board of viewers, and repealing only such legislation as is inconsistent therewith or supplied thereby, said city is remitted to the acts of May 13, 1871, P.L. 840, and March 20, 1873, P.L. 325, which provide for the appointment of viewers by the Quarter Sessions court.

The petitioners, therefore, prayed the court to appoint three viewers whose "functions, powers, duties and compensation" should be such as are provided by the act of January 6, 1864, P.L. 1131, and its various supplements, among which are the said acts of 1871 and 1873, and this for the purpose of having the damages, costs and expenses of said completed improvements, as well as uncompleted and future improvements, equitably assessed upon the properties benefited thereby.

To this petition, T. B. Atterbury, G. I. Whitney, and J. A. Gillespie excepted, on the ground that there was no power in the court to appoint the viewers for the purposes prayed for.

The act of January 6, 1864, P.L. 1131, provided, inter alia, that whenever the councils of the city of Pittsburgh should desire to lay out, open, widen, straighten or extend any street, lane or alley, they should appoint three disinterested freeholders as viewers, to appraise the damages arising therefrom to private property, and to assess such damages upon the properties benefited by such improvement; which viewers should report to the councils, and their report should be subject to an appeal to councils by any persons aggrieved, and to a further appeal from the final action of councils to the Court of Quarter Sessions of the county. The act provided, also, that the damages and benefits arising from the grading or re-grading of streets, etc., should be assessed by three appraisers, appointed by councils, whose report thereof to the councils should be subject to appeal in the same manner as the reports of viewers appointed in connection with the laying out, etc., of streets.

The act of May 13, 1871, P.L. 840, supplementary to said act of 1864, contains the following provisions:

"Sec. 1. That it shall be the duty of the Court of Quarter Sessions, within thirty days after the passage of this act, to appoint three discreet freeholders of the city of Pittsburgh as viewers of street improvements, in said city, to serve for such term as said court may designate; and said court shall have power to remove said commissioners, or any of them, at any time, and to fill all vacancies which may occur by death, resignation, removal or otherwise."

"Sec. 3. Said viewers shall, before entering upon the duties of their appointment, be duly sworn to faithfully, honestly and impartially discharge the duties thereof so long as they may severally act as such; and, when so qualified, shall perform all the duties imposed upon and required by viewers, appraisers and assessors by the act to which this is a supplement and the various supplements thereto, and exercise all the powers conferred upon them in the same manner.

"Sec. 4. Said viewers shall receive as compensation for their services, the sum of five dollars for each day employed in the discharge of the duties of their appointment, to be paid from the city treasury out of such fund as councils may direct, upon the certificate of the city engineer, approved by the street or road committee, as the case may be, and the pay of viewers in each case, with other incidental expenses, shall be estimated by the viewers, added to the damages awarded or cost of construction, and assessed as part thereof."

By § 8, act of March 20, 1873, P.L. 325, it is provided

"That the board of viewers of street improvements, in the city of Pittsburgh, shall be appointed during the month of January of each year, and shall hold office for one year, dating from the first day of February following, unless sooner removed in accordance with the act of assembly entitled, 'An Act concerning the streets and sewers in the city of Pittsburgh,' approved May 13, 1871, and in case of removal, the appointment shall be made for the unexpired term of the person so removed."

The sections of the act of June 14, 1887, P.L. 386, relating to the appointment and functions of the board of viewers therein provided for, are given in the report of Wyoming St., Pittsburgh, 137 Pa. 494. The provisions of the act of May 16, 1889, P.L. 228, upon the same subject, are substantially to the same effect as those of the said act of 1887.

On January 31, 1891, the court entered a decree refusing the prayer of the petitioner, whereupon the city took the appeal to No. 67, specifying that the court erred:

1. In refusing the petition for the appointment of viewers.

WHITNEY, AND OTHERS, v. PITTSBURGH.

To No. 596 March Term 1891, of the Court of Common Pleas No. 1 of Allegheny county, J. A. Gillespie filed a bill in equity against the city of Pittsburgh, Booth & Flinn, contractors, and E. M. Bigelow, chief of the Department of Public Works of said city, praying for an injunction restraining the defendants from opening Lexington street, and restraining said city from making any assessment upon the plaintiff's property for the cost and expense of said improvement, and from proceeding to collect any such assessment; for a decree declaring the act of June 14, 1887, P.L. 395, the act of June 14, 1887, P.L. 386, and the act of May 16, 1889, P.L. 228, under which the city had undertaken to pass an ordinance for the opening of said street and to make such assessment, to be null and void, as in violation of the constitution, and that said city had no power or authority to lay out, open or otherwise improve any of the streets and highways within its limits. In addition to charging that the acts referred to were unconstitutional and void, the bill averred that the plaintiff's property was rural and not subject to assessment by the foot-front rule; that it was in a district wherein, under the act of April 1, 1868, P.L. 565, such an improvement could not be made without a written application of the majority in interest of the owners of property along the line of the street, and such application had not been made; nor, had the provisions of the act of May 1, 1876, P.L. 94, requiring a previous estimate of the cost of the improvement, and a schedule of the value of the properties affected, been complied with before the passage of said ordinance.

The defendants answered, denying that the assessments upon said street were according to the foot-front rule; averring that they were according to benefits; averring that the act of April 1, 1868, was supplied by that of June 14, 1887, P.L. 386; that the act of May 1, 1876, P.L. 94, was repealed by the act of May 27, 1889, P.L. 387; that the act of January 6, 1864, P.L. 1131, and its supplements, and the acts of June 14, 1887, P.L. 386, June 14, 1887, P.L. 395, and May 16, 1889, P.L. 228, were in force and governed and controlled said city; that all the requirements of the act of June 14, 1887, P.L. 386, had been complied with in the matter of Lexington street, and that as a matter of fact the benefits were more than sufficient to pay the damages, costs and expenses.

To No 594, of the same term in the court below, George I. Whitney filed a similar bill in equity against the same defendants, praying upon like averments for like relief in the matter of the grading, paving and curbing of Centre...