Philadelphia v. Evans , 139 Pa. 483 ( 1891 )

OPINION,

Mu. Chief Justice Paxson:

This was a municipal claim for paving a part of Girard Avenue with granite blocks. The portion paved was the centre of the street, formerly reserved for market purposes. The sides of said street are now, and have been for many years, paved with cobble stones. The defendant is an owner of property fronting thereon, and resists the claim of the city for various reasons which are set out fuOy in his affidavit of defence.

In the first place, he alleges that the city has no right to substitute granite paving for the older and cheaper cobble stone, and to charge the increased cost thereof upon the property owner. It is doubtless true that at the time of consolidation in 1854, and prior thereto, the cobble-stone pavement was the only one used in the districts of Penn and the Northern Liberties, and that no owner of property had been charged with any other kind of paving. It by no means follows, however, that because this particular kind of pavement was the only one in use for many years, that the municipal authorities are restricted to it for the future. The cobble stones answered very well in their day. It was a cheap pavement, and was a great improvement over muddy streets. But the city has grown since then in wealth, population, and business, and the pavements of forty years ago may be wholly unsuited to the present growth and wants of the city. This we may fairly infer from the action of the city authorities in ordering a more durable and expensive pavement. The kind of pavement to be laid down upon a particular street must necessarily be left to the discretion of city councils, unless we find some legislative restriction imposed upon it. Such restriction is certainly not to be found in § 40 of the act of February 2,1854, P. L. 43, (consolidation act,) which provides that “ it may be prescribed by ordinance that paving of streets, except at the intersections thereof, and of footways and laying of water-pipes within the limits of the city, shall be done at the expense of the owners in front whereof such work shall be done, and liens may be filed by said city for the same, as is now practiced and allowed by law.” We think it very clear that this language does not apply to the kind of paving; the matter that is permitted to be done, as “ now practiced and allowed by law,” is the filing of the lien. We find nothing in the acts of assembly or elsewhere, which, in express terms or by necessary implication, restricts the city to the antiquated and unsatisfactory cobble pavements of our fathers.

Nor are we able to see much force in the further objection that, inasmuch as the city has paved the centre of the street with a more expensive pavement than that established at the sides, the excess of such cost cannot be charged against the ground. It is to be observed that Girard Avenue is a wide street, the centre of which has now been paved for the first time. The sides, as before observed, were paved many years ago with cobble stones. This portion of it has been paid for by the owners of property abutting thereon. We are unable to see how the fact that they have paid for the work done upon this portion of the street, can exempt them from the payment of what, is now necessary to be done upon the remainder,, or middle portion. Their property was originally liable to be assessed for the paving of the street for its entire width; that it has hitherto been enforced against them only as to part, has done them no harm. And the fact that a cobblestone pavement was regarded as sufficient many years ago for the sides of the street, is no reason why a granite pavement should not now be laid in the middle, if, in the discretion of councils, such pavement is required: See Slocum v. Philadelphia, 11 W. N. 167; Alcorn v. Philadelphia, 112 Pa. 494.

It was ui’ged, as a further defence, that the duty of paving this street has been imposed by statute upon a passenger-railway company. There would be much force iu this position, if it is true in the broad sense claimed for it. Where a city passenger-railway company is required by its charter to pave the street upon which its road is laid, it may be that such duty would be shifted from the abutting property owner to such company. But I do not understand that any such duty is to be found in the charter of the company which occupies this street. By the act of March 26,1859, P. L. 241, incorporating the Richmond & Schuylkill Passenger Railway Company, it was made subject “ to the provisions of all ordinances heretofore, or that may be hereafter passed, by the councils of the city regulating city passenger railways.” It is unnecessary to review at length the various ordinances of city councils affecting such railways. A brief reference to them is sufficient. The third section of the ordinance of July 7, 1857, provides “that all railroad companies shall be at the entire cost and expense of maintaining, paving, repairing, and re-paving that may be necessary upon any road, street, avenue, or alley occupied by them.” The ordinance of April 1,1859, provided some additional regulations for this class of corporations, and § 1 thereof declared “ that all streets or highways which are unpaved at the time of laying the rails shall be kept in good traveling order by the railroad company, until the same shall be paved by the owners of property thereon ; after which they shall be repaired, re-paved, and kept in good order at the proper cost of the railroad company; ” and by § 6, “ that so much of the third section of the ordinance approved July 7, 1857, to which this is a supplement, as provides that the railroad companies shall pave any street that has not heretofore been paved, be and the same is hereby repealed.”

We find nothing in the foregoing, or in any other statute or ordinancé, which places the first cost of paving this street, or that portion of it upon which the granite pavement has been laid, upon the street-railway company now occupying it. The act of 1859, as before observed, makes the company subject to the provisions of the ordinances of the city regulating such roads; not only subject to such ordinances as were then in existence, but also to those “ that may be hereafter passed,- ” and we have seen that the third section of the ordinance of July 7, 1857, which would seem to impose such original paving upon the railway company, has been repealed. The duty which the act of 1859 imposed upon the company was a shifting not a fixed one. It was to be regulated by councils from time to time, and the authority which imposed the duty could, take it away. It had no more of permanency about it than the license fees for running the cars. Had the legislature imposed this duty upon the company as a condition of its charter, it would have been beyond the control of city councils, and we might then have had the question properly before us, whether tbe imposition of such duty upon the company relieved the property owner from the burden or cost of paving.

The fourth ground of defence is, that the price charged for the paving was too high. The act of April 19,1843, P. L. 342, permits this defence to be taken, and had the affidavit of de-fence contained this averment, without more, we might have been compelled to send the case to a jury. But the affidavit appears to have been prepared, with great candor on the part of the learned counsel for the defendant, so as to develop the whole case; and from it we learn, not that the price was too high fqr the time of year that the paving was done, but that an unsuitable time, to wit, the winter season, had been selected by the director of public works in which to lay down the pavement. We do not, of course, know what public exigency required that this pavement should be put down at such an unusual season for such work. It is east7 to see that it would not only increase the expense, but possibly impair tbe quality of the paving. We do hot find anything, however, to interfere with the discretion of the municipal authorities in this matter, and we cannot assume that it was done without cause.

After a careful consideration of the case, we do not see any sufficient reason to disturb the action of the court below, and

The judgment is affirmed.