Wistar v. Philadelphia

• Decision Date: 08 May 1876
• Citation: 80 Pa. 505
• Parties: Wistar <I>v.</I> Philadelphia.
• Court: Pennsylvania Supreme Court

Page 505

80 Pa. 505

Wistar v. Philadelphia.

Supreme Court of Pennsylvania.

February 24, 1876.

May 8, 1876.

February 24th 1876.

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

Error to the District Court of Philadelphia: Of January Term 1875, No. 91.

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J. H. Gendell and E. S. Miller, for plaintiffs in error.—The improvement for which this claim is made is to compel the defendant to pay for that which is a general benefit; this cannot be done: Hammett v. Philadelphia, 15 P. F. Smith 146; Washington Avenue, 19 Id. 352. They cited and discussed the Acts of Assembly and city ordinances relating to the questions in the case.

D. W. Sellers, for defendant in error.—The Acts of Assembly and city ordinances under which the work was done are valid: Philadelphia v. Sutter, 6 Casey 55; Philadelphia v. Tryon, 11 Id. 401; Philadelphia v. Wistar, Id. 427; Lipps v. Philadelphia, 2 Wright 503; Philadelphia v. Burgin, 14 Id. 539. No conclusion of any defence which shows a want of power to authorize the work has been sustained: Kensington v. Keith, 2 Barr 218; Reilly v. Philadelphia, 10 P. F. Smith 467; Hammett v. Philadelphia, 15 Id. 146; Philadelphia v. Hoxie, 2 Wright 339. In all cases where a statutory tribunal is created to determine a question out of the course of the common law, there is no review in any manner of the judgment of such tribunal, unless the statute gives it: Taylor v. Board of Health, 7 Casey 75; Fisher v. Harrisburg, 2 Grant 291; Wharton v. Borough, 1 Wright 371; Horner v. Railroad Co., Id. 335; Carr v. Northern Liberties, 11 Casey 324; Hughes v. Kline, 6 Id. 227; Kimber v. County, 8 Harris 366; Hulseman v. Rems, 5 Wright 396; Richardson's Appeal, 6 Casey 510.

Chief Justice AGNEW delivered the opinion of the court, May 8th 1876.

What we have to deal with here, is the affidavit of defence. Does it set forth a sufficient ground to defeat the plaintiff's recovery? Want of power to impose the alleged liability is clearly a good defence. The question is not whether the legislature might authorize such a claim to be made, but whether this authority has been granted.

The original and supplemental affidavits are diffuse, setting forth many things unnecessary to be noticed. Premising that the claim filed is a naked charge for 121½ feet of curbstone laid opposite the defendant's lot, without circumstances stated, except that the work was done in pursuance of the ordinance of December 31st 1872, after adjustment of the curb line, and a contract made for paving the street, we may gather and condense the following facts from the affidavits of defence: That about three years before the new curbing was set, the footway opposite defendant's lot had been well paved, and the curb set at his expense; that they were of proper and sufficient width, similar in style to those in other parts of the city, and well done according to the laws and ordinances of the city; that they were in good order and condition, needing no repair or improvement, and no resetting, alteration or substitution; that the new curbing was no repair, but that the city chose, of her own purpose, to change the alignment of the curb and pavement, and to require a new and most expensive granite curb to be set on the new line, costing more than treble the expense of the former curb, without any allowance for the cost of the former curbing. On these facts the question is, did the laws conferring authority on the city to pave footways and curb them at the expense of the owners of the ground in front thereof, confer the power to set new and costly curbs on a new line at the expense of the owners?

As remarked by WOODWARD, J., in City v. Tryon, 11 Casey 402: "This is a power of special taxation, and must have explicit legislation to support it." The property in question lies on Broad street, between Race and Vine, and is therefore within the old city. The only legislation to which we have been referred, or which I have found, is in the Consolidation Act of February 2d 1854, and in the 40th section, viz: "That it may be prescribed by ordinance that paving of streets, except at the intersection thereof, and of footways, and laying water-pipes within the limits of the city, shall be done at the expense of the owners of ground in front whereof such work shall be done, and liens may be filed by said city for the same, as is now practised and allowed by law." It may be conceded that curbing is a necessary part of paving to separate and support the footway from the cartway. It may be conceded also, that a general power to pave implies a power to repair and repave when the condition of the cartway or footway requires it; and of this primâ facie the city officers may judge. The affidavit asserts that this was not a repair but a new alignment and alteration of the curb. Then does the 40th section of the Act of 1854 confer a power at pleasure, to change, take up, alter, and relay pavements, and reset curbs, at the expense of the owner of the front, who has recently paid for a good pavement or curb; and therefore to do this as often as the city may choose to alter its plans of improvement. Without referring to any power in the legislature to confer such an authority, the question is, is this the true scope and design of the legislation before us; is it the interpretation we should give to the section? We think not. A power so onerous upon the citizen must be plainly conferred, if, indeed, it is not obnoxious to the charge that it is palpably oppressive and unjust. It is in derogation of the right of private property, seeking to lay a special tax on a small class of citizens. The foundation of this power, to tax specially, is the benefit the object of the tax confers on the owner of the...