City of Scranton v. Arnt

Opinion by

Mr. Chief Justice Paxson,

The city of Scranton filed the lien in this case against the property of the defend.ant for the construction of a sewer. Upon the application of the defendant, the court below struck off the lien for the reason that it was deficient in not showing when the assessment was due. The learned judge appears to have relied, to a considerable extent, upon City v. Jones, 133 Pa. 223. The point decided in that case was that the property was not sufficiently described. It is true the learned court below discussed a number of other questions, among which was the one now under consideration. He held that it must appear upon the face of the lien when the sewer assessment is due or payable. This court did not pass upon that question.

The lien was filed under the 47th section of the act of May 28, 1874, P. L. 259, which provides, inter alia, as follows: “ Such assessments shall be called sewerage tax, and claims for same shall be registered in the city lien docket as unpaid school and city taxes bn real estate are by this act directed to be registered ; and the same shall be, from the time of such assessment, liens on such lots and lands in the hands or possession of the owner thereof, their heirs and assigns, the same as other city taxes, and subject to the same penalties, if delinquent; and it shall be lawful for the city councils to cause said assessments to be collected before the work is contracted for.”

It will thus be seen that the sewerage tax is to be registered in the city lien docket, in the same manner as unpaid school and city taxes, on real estate, are directed to be registered. The provision in regard to city taxes is as follows: “ After the first day of January in bach and every year, the city treasurer shall place correct and detailed statements of taxes respectively due on real estate, in the possession of the city solicitor, who shall cause the real estate remaining unpaid to be registered in the name of the city, if city taxes, and in the name of the proper district, if school taxes, and against the person or persons-charged in the duplicate with the same : ” Sec. 36, act of 1874, P. L. 249. By the 37th section of said act, it is provided, that claims so registered shall be prima facie evidence of the amount thereof, and of the same being due and owing.

Beyond this we find nothing in the act prescribing the requisites of the lien. The claim filed in this case, as amended, sets forth the name of the owner or reputed owner, the date of the assessment, for what purpose the assessment was made, with the amount thereof, together with a description of the property against which the claim is filed. Nothing beyond this is required by the terms of the act of assembly. It might be a matter of convenience to the defendant, to set forth when the assessment was due, but we do not see our way clear to strike off the lien for the omission of such statement. The time when such assessments would fall due, is regulated by city councils, of which every citizen is supposed to have knowledge. Hence,, when the date of the assessment is set forth, the person, against whom the lien is filed, knows, or has the means of knowledge, when it is due. If an attempt is made to enforce the payment of the lien, before maturity, defence can be made upon that ground. If the lien is filed, when no right to do so exists, the court will strike it off upon motion. In this casé it was not contended that the city had no right to file this lien at the time it was done. The filing of a lien is one thing, its enforcement is another.

The 21st section of the act of May 28,1889, P. L. 328, provides, inter alia: “ Such specification of lien shall be deemed sufficient, if it designates the amount and date of the assessment, the lands assessed, and the name of the owner or reputed owner.” This act was not passed until after the original lien was filed. It was in force when the amendment to the lien was made. While this act may not be retroactive, it nevertheless specifies what requisites shall be deemed sufficient in such cases, and we would hesitate to hold a lien, filed before its passage, insufficient, in the face of such a declaration by the law-making power, as to what such lien should contain. The previous acts referred to, not having defined the requisites for such liens, we are not disposed to destroy this lien by judicial construction, when it conforms to the law, as it now stands upon the statute book.

The order of the court below, making absolute the rule to strike off the lien, is reversed and set aside, the lien is reinstated, and a procedendo awarded.