Allegheny City v. Blair , 1 Foster 377 ( 1873 )

The opinion of the court was delivered, October 20th 1873, by

Sharswood, J. —

It is not disputed that the legislature has full power to extend the limits of the city of Allegheny over the borough of- Duquesne, or any part of it, and to provide that all powers conferred upon the said city by the various Acts of Assembly should be extended to and over the inhabitants and territory so annexed, together with all' the ordinances in force in said city, as was done by the Act of Assembly, approved March 18th 1868. What the effect of such an extension would be upon existing contracts of the borough of Duquesne, as to the grading and paving of streets, is not a question here, because the contract of the borough with P. F. Howley & Co. for the grading and paving of Bank lane, was rescinded by the parties, and a new contract entered into, under and by virtue of an ordinance of the city of Allegheny of June 11th 1868. The case stated finds expressly that such new contract was duly entered into. It is very plain that the grading and paving under this ordinance was subject to the Acts of Assembly in existence as to Allegheny City, and according to those acts “the city councils of the city of Allegheny shall have power by ordinance to grade and pave any street, lane or alley, or any parts thereof, within the corporate limits thereof, and shall have power to levy and collect a special tax for defraying the costs and expenses of the same by an equal assessment on the feet front bounding and abutting as aforesaid.”

The property-owners were no parties to the original contract of Ilowley & Co. with Duquesne borough, and their consent was not necessary to its rescission : Marshall v. The Commonwealth, 9 P. E. Smith 455. If the laws relating to the city of Allegheny had required, as did those relating to the borough of Duquesne, the petition of a majority of the lot-holders before a street could be graded and paved, there would have been some reason for the contention that there could not be a new contract without a new petition, and that under the old petition the street could not be graded and paved, except subject to the condition that “said councils shall make or cause to be made, at the proper cost of the said borough, a good and permanent protection of the same on the south orAiver side of Bank lane.” But as to Allegheny City no such petition is required. It is agreed by the case stated that the curbing in question was necessary for the proper support and protection of the street, and was therefore a proper part of the charge for paving, for which the defendant was liable: Schenley v. The Commonwealth, 12 Casey 60.

Judgment reversed; and now, judgment for the plaintiffs against the defendant for the sum of $171.57, with interest from the 1st of January 1871.