Beckert v. City of Allegheny , 1877 Pa. LEXIS 235 ( 1877 )

Mr. Justice Gordon

delivered the opinion of the court, October 22d 1877.

Frederick Beckert and some twenty-six others, citizens and taxpayers of Reserve township, in the county of Allegheny, preferred their bill to the Common Pleas of said county, praying that the city of Allegheny be restrained from proceeding to collect certain assessments made upon their several properties in said township, for the payment of the cost of constructing a certain road, known as the Troy Hill road, situate wholly within the corporate limits of said city. The authority under which the city councils professed to act, in the making of the assessments complained of, Avill be found in an act of the General Assembly approved May 10th 1871, entitled “An Act relative to grading, paving, curbing and otherwise improving Troy Hill road in the city of Allegheny,” and its supplement, approved April 1st 1872. The act empowers the city councils to construct this road and as soon as the cost and expenses of such construction have been ascertained, “ to appoint three disinterested freeholders of said city as viewers, whose duty it shall be to assess and apportion the said cost and expense upon all property in said city and Reserve township which they shall deem benefited thereby.”

The plaintiffs complain of this act as unconstitutional and void, and, therefore, as not a sufScient warrant to the councils to authorize them to collect the assessments they have caused to be made, upon the property of the complainants in the township of Reserve.

In Dorsey’s Appeal, 22 P. F. Smith 192, where the title to an act, in that case under consideration, set forth that it related to the liens of mechanics and others upon leasehold estates, and, in the body of the act, such liens were also given upon freehold estates, it was held that this latter part of the act was unconstitutional and void, because not mentioned in the title. As the language of the constitution, under which the abdve decision was made, is almost identical with that of our present one, we must regard the above-named case as decisive of the one in hand. And the argument is a fortiori, for, under the title of the act above mentioned, it might well be argued that, as it related to mechanics’ liens, there was something, in the general subject itself, which might have induced an examination of the body of the enactment by those interested, whilst, in that under consideration, there is nothing -which conveys the remotest hint that any inhabitant of Reserve township is at all interested therein. The words, “ An Act relative to grading, paving, curbing and otherwise improving Troy Hill road, in the city of Allegheny,” certainly notify all persons outside of the city limits, if of anything whatever, that the matters contained in the act of which they form the title, .do not affect them. If then it be true, as is said in the case cited, that the purpose of this part of the constitution is that members of the legislature, and all others interested, may have notice of the contemplated legislation, in order that such as is secret and unwise may be discovered and prevented, then, the act under consideration certainly comes within its prohibition and is of no effect as to all persons outside of the city of Allegheny. Reference has been made to the case of Blood v. Marcelliott, 3 P. F. Smith 391, as analogous to that now being considered; but it is not so. There the title was “ An Act to increase the boundaries of „Forest county,” and provision was made, in the body of the act, not only for the extension of ¡the boundaries, but also for the re-location of the county seat. No one, we think, will dispute but that this case carries the question therein discussed to the extreme of constitutional relaxation; in order, however, to make it analogous to the case under discussion w-e must suppose the body of the Eorest county act so altered as to provide for the re-location of the county seat of some adjacent-county, or the taxation of the citizens of such county for cost of the erection of the public buildings of Eorest county. Such a case would furnish a true analogy to the one in hand, but it would not be the case of Blood v. Marcelliott.

It has been argued, that this bill ought not to be maintained because preferred too late. It is said objection should have been made at the commencement or during the progress of the work; that by remaining passive until the city had incurred the expense of erecting the road, the relators were guilty of such laches as should close the ears of equity against their plaint. This objection, which would ordinarily be good, is successfully ansAvered by the reply, that the city, in the building of the Troy Hill road, Avas engaged in an undertaking Avithin in OAvn lawful jurisdiction and power, and Avith Avhich the relators could not interfere; that the unlawful act consisted, not in the making of the road, but in the attempt to compel the plaintiffs to pay for a city improvement, by assessments upon their property in Reserve toAvnship, and that they brought this bill as soon as possible after such assessments were made and confirmed; that they could not know, until 'after the assessments were made, that they would be called upon to contribute ; hence, before that time, any interferenee on their part would have been considered as impertinent and unauthorized.

And now, October 22d 1877, it is ordered, adjudged and decreed, that the decree of the Court of Common Pleas, No. 2, of Allegheny county, dismissing the plaintiffs’ bill, be reversed and set aside, at the cost of the appellees ; and that the assessments procured to he made by the municipal officers of the city of Allegheny against the several properties of the plaintiffs, appellants, for and on account of the cost of grading, paving, curbing and otherwise improAdng Troy Hill road in said city, be adjudged void and of no effect; and that said city be enjoined from the collection or enforcement thereof by the entry or prosecution of any lion or liens against the said several properties of the plaintiffs, in the township of Reserve, or otherwise.