York City v. Eyster , 1917 Pa. Super. LEXIS 80 ( 1917 )

Opinion by

Kephart, J.,

The street in front of appellant’s property was paved under ordinances of council and the cost thereof assessed by the foot front rule. Other streets in the City of York had been paved by the municipality, at its sole cost and expense, prior to the improvement of this street. Appellant’s counsel contend that under the Act of 1913 the city has power to adopt any one of the methods specified in the act for paying the cost of an improvement, but when once they exercise that power, the method adopted must apply to all future paving, grading and macadamizing throughout the city; it cannot thereafter pay the cost of improving other streets by any of the other methods specified in the act. We cannot agree to this proposition.

Section 10 of the Act of June 27, 1913, P. L. 568, authorizes cities of the third class tO' provide for the payment of the cost and expenses of paving, grading or macadamizing any public highway. It may be done in whole or in part by the city or by the owners of real estate abutting on the improvement; the cost and expense, when paid by the abutting owners, shall be assessed according to the foot front rule or according to benefits, as council may by ordinance determine. This section of the act does not materially change the law as it existed under Section 10 of the Act of 1889, P. L. 288, as amended by the Act of May 16, 1901, P. L. 224. The power of the legislature to provide for assessments for special benefits in local improvements is too well settled to require discussion. It was held in Scranton City v. Bush, 160 Pa. 499, that under the Act of 1889 the city might use either plan of payment; when the municipality adopted one system of payment for certain streets it was not prohibited from adopting another system for differ ent streets. We find nothing in the Act of 1913 which by -any reasonable construction changes the law as it then existed. The act does not attempt to restrict the power of the city to determine the various methods of payment that should apply to its streets. The city does not exhaust its power when a particular means of payment is used for certain streets. The means of payment is wholly within the discretionary power of the city’s law making body. It cannot legislate so as to deprive itself or future councils of the corporate authority granted by the legislature to enact measures for the benefit of the municipality, the levying of taxes, or the improvement of other streets as their judgment dictates. The authority is exhausted as council legislates for and improves designated streets. Over those not improved as permanent highways, the control of council is complete. We would not assert that a gross abuse of discretion might not be perpetrated in determining what streets or parts of streets should be paved wholly at the city’s expense and what streets should be paved at the expense of the abutting owner. This record does not show any discrimination and if it did and it were of such character that a court could interfere, the complaining parties should have moved to determine that question before the city had caused a large expenditure of money to be made on the faith of the ordinances providing for the improvement. One cannot stand idly by until the streets are paved and then assert that there has been a gross abuse of discretion. A certain amount of discrimination is bound to appear in the determination of all taxing and-local improvement problems; and though the city may cause certain streets to be paved entirely at the public expense, and other streets by the foot front rule, and thereby compel the abutting owner to contribute, through taxation, to the payment of the former paving, this circumstance would not amount to such an abuse of discretion as to render the act of council void, nor would the possibility of such contingency arising impale this section of the act on the prohibition contained in Art. IX, Sec. 1 of the Constitution: Anderson v. Lower Merion Township, 217 Pa. 369. The reason for this rule is obvious. The location of the population, the use made of the streets, and many other considerations enter into the question of how the payment of the improvement shall be made. This must be determined by the local government and courts should not interfere unless a palpable injustice warranted it. And while the special benefit to the abutting owner may be the limit of the taxing power, in determining his liability as it is affected by the action of the city in paving other streets at the city’s sole cost, there is a presumption that in apportioning the cost through a general system of taxation, the complaining owner, in common with all others, derives a benefit. This is in consonance with the general rule that the cost of making public improvements must be borne by the public. When a street or part thereof is selected to be improved within the discretion of the legislative branch of the city’s government, and contribution toward the cost is equally distributed within that street, it meets not only the equities of the case but any constitutional prohibition. The principle contained in White v. Meadville, 177 Pa. 643, has therefore no application.

We are not convinced that this act of assembly as a whole is unconstitutional, being in violation of Article III, which provides that no bill, except general appro, priation bills, shall be passed containing more than one subject. We have frequently discussed titles to acts of assembly as bearing on this article of the Constitution, and need make no extended reference to them.

Section 4 of the Act of 1901, P. L. 364, as amended by Section 2 of the Act of 1903, P. L. 42, requires, where the contractor performing the work is to be paid by assessment bills, the lien is to be filed to his use; by Section 9, one month’s notice must be given to the owner of the property affected before the claim is filed. Improvement bonds in the usual form were issued, which contained a clause that the “bonds shall rest alone upon and be payable out of said assessments and from no other fund.” The contractor accepted these bonds as payment. This lien was filed by the city and no notice of intention to file was given. We do not regard the means of payment as being a mere, subterfuge to evade giving notice, nor do we regard the transaction as being equivalent to an equitable assignment of the assessment bills to- the contractor. It was therefore not necessary to file the claim to the use of the contractor or to give notice. It is true the improvement bonds were a limited obligation to be paid by the assessment claims. It was nevertheless the duty of the city to collect these claims. As between the bondholder and the city, the city’s liability would not. end if its officers were negligent or careless in their col: lection, and its responsibility would not cease if there should be a diminution in the amount of these collections, occasioned through the voluntary act of the city. These questions only serve to emphasize the fact that the claims were solely and exclusively within the city’s control, and the contractor could exercise no act of ownership over them. The contractor was paid by the bonds not by the assessment bills. See Gable v. Altoona, 200 Pa. 15; Dime Dep. & Dis. Bank of Scranton v. Scranton, 208 Pa. 383; O’Hara v. Scranton, 205 Pa. 142.

When the cost and expenses are assessed against abutting owners, there must be an equitable reduction for the frontage of lots which from “their peculiar or pointed shape, an assessment for full frontage would be inequitable.” See Section 10 of the Act of 1913. The ordinances authorizing the improvement need not contain the clause of the act relating to this question. No uniform rule can be laid down that would apply equitably to all odd shaped lots. The act must be followed when the assessment is made, and if it is not complied with, the owner does not lose his right to contest the amount of the assessments. The affidavit of defense nowhere contends that the amount of the lien is unjust by reason ,of the city’s failure to make due allowance for a peculiarly shaped lot in accordance with the act.

The assignments of error are overruled and the judgment is affirmed.