Appeal of Harper , 109 Pa. 9 ( 1885 )

Chief Justice Mercur.

delivered the opinion of the court,

The report of the Master and the opinion of the court are so full and clear that we deem it unnecessary to review the several questions presented in detail or at length. We will therefore refer to a few matters which we think control the case.

Equity is part of the law of this Commonwealth; yet a bill in equity will not lie where there is a complete and adequate remedy at-law. Is there such a remedy given to repair the wrong charged in this case ? Here the municipal authorities seek to collect assessments under an ordinance passed in March, 1882, for the construction of a sewer which in fact had been constructed the year before, and for which no valid ordinance then authorized the assessment.

In providing for the construction of sewers in cities of the third class, one of which is represented by the appellants, the 47th section of the Act of 23d May, 1874 (Purd. Dig. 1922, pi. 134), requires an estimate of the costs and expenses of constructing a main sewer, and authorizes the city councils to provide by ordinance for assessing the same upon the lots and lands within the sewer district where “the work is to.be done.” The freeholders to be appointed shall assess the estimated expense of such sewerage on all the lots and lands in the district where the sewer “is to be constructed or reconstructed.” After the assessments are made the council may-designate the percentage necessary to pay for such portion of any main sewer as “they shall have determined to construct or reconstruct.”

The portions of the section which we have quoted, as well as other parts thereof, show very clearly that all the steps ■therein specified must precede the construction of the sewer to authorize the assessment of the costs thereof on the adjoining lots. Section 1 of the Act of 1st May, 1876, provides that, the councils of cities of this Commonwealth, except cities of the first class, shall not pass any ordinance authorizing the construction inter alia of any sewer before they have caused the city engineer to make an estimate of the total cost of such improvement, particularly stating the items and the cost of each, and also cause a schedule to be made showing the cash value of the property liable to pay for such improvement, and the estimate, map or plan, and schedule, shall be. attached to the ordinance before its passage, and shall remain on file in the proper office for the benefit of all persons interested. It further provides that any ordinance which shall be passed by the councils authorizing such work “ before the provisions of this Act are complied with shall bo null and void and of no effect.”

The appellants constructed the portion of the sewer in question before they complied with the requirements of the Act of 1874, or with any other statute authorizing the same. As no statute justified their action, they had no power to pass an ordinance authorizing the imposition of taxes to pay for the sewer previously constructed contrary to express law. An assessment therefor is in the nature of a tax. The right of imposing a tax is an attribute of one of the highest powers of government. To entitle a municipal corporation to recover from the abutter the expense of constructing a local improvement on or in the street, it must comply with all conditions precedent, whether prescribed by Act of Assembly, charter or ordinance: 2 Dill. Municipal Corp., § 811. Conceding an appeal might lie under the statute from the irregular assessment of a tax, yet that is not this case. This tax is not under the statute, but in direct conflict with it.

The ordinance being null and void, equity has jurisdiction to enjoin the officials against the enforcement thereof: Shirk v. Bucher, 3 P. F. S., 94 ; St. Clair School Board’s Appeal, 24 Id., 252; Conner’s Appeal, 7 Out., 356.

It is well said in Bisp. Eq., 434, jurisdiction in equity depends not so much on the absence of a common law remedy as upon its inadequacy. In this case an appeal from the specific tax would have been inadequate to correct the whole evil. All property owners on the street in which the sewer is constructed are interested in the question presented. Equity seeks to prevent unnecessary litigation by disposing in one proceeding of all the questions which arise affecting so many persons. In the present case we think any common law proceeding inadequate to properly settle the rights of all the parties.

We think it unnecessary to answer in detail the authorities cited. We see nothing therein to convict the court of error.

Decree affirmed and appeal dismissed at the costs of the appellants.