Seely v. City of Pittsburg

• Decision Date: 02 January 1877
• Citation: 82 Pa. 360
• Parties: Seely v. The City of Pittsburgh.
• Court: Pennsylvania Supreme Court

82 Pa. 360

Seely v. The City of Pittsburgh.

Supreme Court of Pennsylvania.

January 2, 1877

October 6, 1876

The frontage rule of valuation, whereby the cost of the paving of streets or other municipal improvements is assessed upon the property holders abutting upon the street, in proportion to the number of feet their property fronts thereon, while it may be a just mode of assessing the cost upon compact city lots, where the properties do not materially differ in value cannot be applied where the street or improvement is made through rural or suburban districts, and the Act of April 2d 1870, in so far as it applies this mode of assessment to such districts is unconstitutional.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD JJ.

WILLIAMS J., absent.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 300.

This was a scire facias sur municipal claim brought by the city of Pittsburgh against C. B. Seely, in which the following case was stated for the opinion of the court:--

" That under the provisions of an Act of Assembly, entitled ‘ An Act to provide for the improvement of Penn avenue and other avenues and streets in the city of Pittsburgh,’ approved April 2d 1870, and the supplement thereto, approved March 20th 1872 (copies of which are hereto annexed and made part hereof), the owners of the property abutting on Penn avenue, between St. Mary's avenue and the eastern line of said city, on the 10th day of May 1870 elected James Littell, Paul Hugus, John P. Penny, Dr. A. J Davis and Dr. John J. Marchant as commissioners to control and superintend the grading, curbing and paving of that part of said avenue (the said act having been previously approved by the councils of the city of Pittsburgh).

That said commissioners, as required by said Act of Assembly, met and organized, determined the kind and description of pavement to be used upon that part of said avenue to be improved, and let the contracts for the grading, paving and curbing of the same, as required by said act.

That during the progress of the work, for the purpose of providing for the payment of the cost and expense of said improvement, they made requisition upon the mayor of the said city of Pittsburgh, for the issue of bonds of said city from time to time--upon which requisition, bonds were issued as required by said act, and negotiated by said commissioners, amounting in the aggregate to the sum of $356,500, and the proceeds of said bonds were paid into the treasury of said city, and paid out by the treasurer upon the requisition of said commissioners as required by said act.

That as soon as said grading and paving of said avenue was completed to the satisfaction of said commissioners, they notified the city engineer of that fact, and in accordance with the requirements of said act, they, on the 18th day of September 1873, assessed the cost of said improvement equally per front foot upon the property fronting or abutting upon said improvement, and that all other requisites and conditions of said act and supplement were fully and strictly complied with.

That said defendant, C. B. Seely, at the time said improvement was made, owned, and at the present time owns, property abutting upon said avenue, and assessed with a part of the cost of the said improvement thereof, and which is bounded and described as follows, viz.: Beginning on the north side of Penn avenue, at the corner of Beatty street; thence along said avenue 108.48 feet to the corner of H. H. Negley's land, and thence extending back, preserving the same width 120 feet. That a lien was filed as required by said act, against said property of defendant amounting to the sum of $1073.84. That the line of said improvement, in part, runs through what is called the rural or suburban part of the city, and defendant's premises are situated in such rural district.

If, under the foregoing statement of facts, your honors should determine that said assessment is not in derogation of the defendant's rights under the constitution of this Commonwealth, that then judgment shall be entered for the plaintiff for the sum of $1301.84, to be collected as directed by said act, with costs, but if on the contrary your honors should conclude that said assessment is in conflict with the provisions of said constitution, that then judgment shall be entered for the defendant for costs. Either party to have the right to take out a writ of error to the Supreme Court."

The Act of April 2d 1870, Pamph. L. 796, and its supplements of February 1st 1871 and March 20th 1872, provided, inter alia, as follows:--

That the owners of property abutting on Penn avenue, between St. Mary's avenue and the eastern line of the city of Pittsburgh, should elect five citizens, owners of property, to be known as commissioners of Penn avenue improvement, whose duty it was made to control and superintend the grading, curbing and paving of that part of said avenue above mentioned, and who were to determine the kind and description of pavement to be used, and to make and enter into contracts for furnishing materials, grading, curbing and paving of the said avenue. All contracts made by said commissioners were to be paid out of the funds to be provided for said improvement; and for the purpose of providing for the payment of its cost and the expenses incurred therein, the commissioners were authorized from time to time, as the work progressed, to make requisition upon the mayor of the city of Pittsburgh for the issue of bonds of said city, in such sums as they deemed best; and it was made the duty of the mayor to make and execute bonds in the name of the city, to an amount not exceeding the amount of the contract price for said work; said bonds to be known as Penn avenue bonds, and to be payable twelve years after date; the commissioners to negotiate said bonds in such manner as they might think best, and for such prices as might be obtained for the same, not less than par. All moneys received by the city treasurer from the sale of said bonds were to be kept by him in a separate fund, and paid out on requisition of the commissioners when the improvement was completed; and it was made their duty to ascertain the entire amount of the bonds sold by them, which was to be taken as the cost of said improvement; and said cost was to be assessed equally per front foot upon the property fronting or abutting upon said improvement. The commissioners were also required to have a plot of said avenue prepared, showing the separate lots of ground and the names of the several owners, and to make a list or schedule of the names of all said owners, and the amounts assessed against each lot or piece of ground, and to file the same in the office of the prothonotary of Allegheny county; said assessment to be payable at the office of the city treasurer, in ten equal annual instalments, with interest at seven per centum upon the unpaid portion thereof. If said instalments, or any of them, were not paid at the time they became due, it was made the duty of the treasurer to certify the same to the city attorney for collection; and the same was to bear interest at seven per cent. from the time it became due and payable; said assessments, with the interest accruing thereon, to be a lien upon the property abutting upon said avenue, from the commencement of the work, and to remain a lien until fully paid; to have precedence of all other liens, and not to be divested by any judicial sale. If any assessment or instalment thereof remained unpaid for thirty days after the same became due, the city attorney was to file a claim for the same in the District Court of the county of Allegheny, in the same manner as mechanic's liens are filed, and a writ of scire facias and levari facias might issue thereon, as in the case of mechanics' liens, and the same costs be taxed, judgments be entered thereon for the full amount of the assessment remaining unpaid, with leave to take out execution for the instalment and interest then due, and for each subsequent instalment and interest as the same became due. All moneys received from assessments were to be appropriated, under direction of the finance committee of the councils of the city of Pittsburgh, to the payment of the interest and the redemption of the bonds which were issued for said improvement. If any interest should become due on said bonds, where there was no fund from which to pay the same, the councils of the city of Pittsburgh were authorized to make a temporary loan for the purpose of paying the same. This act was not to take effect until the councils of the city of Pittsburgh should have approved thereof.

On the case stated the court entered judgment for the plaintiff.

Defendant took this writ and assigned this judgment of the court for error.

J W. Kirker and M. A. Woodward, for plaintiff in error.--The part of Penn avenue improved under this act was, in the main, through the rural or suburban part of the city, where the land is held in large tracts, and where much of it is unimproved, and used only for agricultural purposes. It is contended that the assessment according to the frontage of property abutting on this avenue, to pay for the improvement thereof, is not a fair and legitimate mode of taxation, and does not impose the burthens in accordance with the benefits conferred. The frontage rule, as a practical adjustment of proportional benefits, can apply only to cities and large towns, where the density of population along the streets and the small size of the lots make it a reasonably certain mode of arriving at a true result; but to apply the same rule to rural and suburban lands leads to such irregularity and injustice as to deprive it of all...