Scranton Sewer , 213 Pa. 4 ( 1905 )

Opinion by

Mr. Justice Brown,

There was a motion to quash this appeal because it was not taken within thirty days from the confirmation of the report of the viewers. It is based upon the act of May 16, 1891, P. L. 75, which, provides that an appeal maybe taken within thirty days. This provision reappears in an amendment to the act passed April 2, 1903, P. L. 124. The permission to appeal within thirty days does not take away the right given by the act of May 19, 1897, P. L. 67, to appeal within six months, and the motion is therefore denied.

An ordinance of the city of Scranton, approved September 5, 1902, authorizes the construction of a sewer in. certain streets and courts between designated points, to be known as section “ G ” in the seventeenth sewer district of that city. On September 8, 1902, the city presented its petition to the court below, reciting the passage of the said ordinance, and asking for the appointment of viewers to assess the costs and expense of the sewer and the benefits resulting from it, in accordance with the act of May 16,' 1891, P. L. 75. Viewers were appointed, who made report, assessing the sum of $16,808.42 to be paid by the appellant for the benefits to its properties.

Though the viewers were appointed to assess the cost, expense and benefits of a sewer to be built on lines clearly designated in the ordinance, they assessed the° cost and expense of the construction and the benefits of a different one. No other action than the ordinance of September 5, 1902, was ever taken by the city councils in reference to the sewer, but the chief engineer of the city, upon the suggestion of his superior, the director of public works, blotted out from the map showingthe location of the sewer certain portions of streets and courts on which it is to be constructed, because, in his judgment, the improvements in the blotted out portions do not justify the extension of the sewer through them. Just when he assumed this wholly unwarranted authority does not appear, but when the viewers met they confined their investigation to what must be regarded as the sewer system of the chief engineer, and not the one adopted by the city authorities. That official blotted out Irving avenue from Front street to Moosic street, though the ordinance directs the sewer to be constructed from Front street to Moosic street, and thence to River street; he blotted out Front street from South Webster street to Irving avenue and portions of Gallagher and other courts in the same locality. Though the ordinance called for the sewer in these blotted out portions of the streets and courts, the viewers passed upon the question of the cost and expense and the resultant benefits, as if it were to be constructed only on the lines indicated on the tampered with map. They followed the map of an engineer; but they were directed to act in pursuance of the provisions of an.ordinance of the city of Scranton and to ascertain and assess the cost and expense and assess liability for the sewer therein specifically designated. Sewer systems can be adopted only by ordinance, but the one upon which the appellant has been assessed for benefits is nothing but that of a city’s' employee.

In dismissing appellant’s second exception to the report of viewers, the court below said: “ There remains to be considered the effect of a variance between the first section of the ordinance and the map or plan attached as part thereof in respect to the extent of the proposed sewer. This section of the ordinance specifies certain blocks of streets and courts in which the sewer is to be built which were originally included in the map but afterwards, before the appointment of viewers and without amendment, the department of public works decided to omit; and thereupon they were obliterated on the map and the view was had according to the map as so altered, and therefore not strictly according to the ordinance. The question so presented is really one of first impressions and by no means free from difficulty. On the one hand the alteration of the map was entirely unauthorized and in a sense unlawful. At first blush it would seem to go so materially to the integrity of the proceeding as to make it invalid. But on the other hand we are unable to discover, and counsel have not indicated to us, how the exceptants have been or may be injuriously affected by that means. There were no damages involved in the case; neither the cost of the sewer nor the benefits assessed will be increased as a result of the alteration. . . . As a result of the change in the map, the view and the report do not go outside of the streets mentioned in the ordinance, but certain blocks or parts of streets or alleys are omitted.” Whether the appellant had been injuriously affected by the change in the map and the substitution of the sewer system of the chief engineer for the one adopted by the city itself is not the test of its right to complain. The system is not its system, and it may or may not have been in favor of it. Without regard to its wishes a sewer can be constructed by the municipality after appropriate municipal action, but only after such action and the provisions of a valid ordinance have been followed can it be called upon as the owner of private property to pay for the benefits arising from the public improvement. This is not. an arbitrary rule, but a just and wise one, not to be broken in on by any exception. A municipality can impose a valid municipal lien for • street improvements only when the improvements are made in pursuance of law and the mode pointed out by the city ordinance is strictly followed. Such liens do not rest on any agreement or specific assent of the owner of the land charged with the burden, and the improvement is often against his wish. A clear right must, therefore, be shown by the municipality to justify such an act of sovereign power. Municipal charges legally laid on lands are sufficiently large without subjecting them to any imposed contrary to law: Western Pennsylvania Railway Co. v. City of Allegheny, 92 Pa. 100 ; Hershberger v. City of Pittsburg, 115 Pa. 78 ; Morewood Avenue, Ferguson’s Appeal, 159 Pa. 89. This is equally true of benefits assessed under the act of 1891.

The appellant can be compelled to help pay for what the ordinance provides. It cannot be assessed for anything else, but the viewers have assessed it for something else, and its complaint is, therefore, a substantial one. In asking, that it pay nearly $17,000 for benefits the city must show a sewer system to be constructed according to the directions of an ordinance, but instead its claim is for one mapped out by a city engineer on a map which he was not authorized to make. If his map cuts out a portion of the system as adopted by the city councils, the system is no longer the. city’s for the purpose of compelling property owners to contribute to the cost of its construction. To help pay for the construction of a sewer "adopted by the municipal authorities is a liability to which the appellant may be subjected, but the liability imposed upon him by the report of the viewers is not such. As it must be set aside for the reason stated, the other questions raised need not now be considered.

The decree of the court below is reversed and the report of the viewers is set aside, at the cost of the city of Scranton.