City of Scranton v. Whyte

Opinion by

Mr. Justice Williams,

The municipal lien, on which the writ of scire facias in this case issued, was entered for the cost of paving Adams avenue along the front of defendant’s property. The paving of this avenue was done under an ordinance, approved Sept. 4, 1889, which provided for assessing the cost of the work on the property along the street according to the foot-front rule. The. assessment made upon the defendant’s property was not paid, and the lien now under consideration was filed in due form, in favor of the city, for the amount of the unpaid assessment. When the defendant was served with the scire facias he appeared and made an affidavit of defence, alleging that there ought to be no recovery against him, because the ordinance under which the work was done was invalid. The reason given was that the act of May 23, 1889, and “ especially the 1.5th article thereof, is a local and special law, and is, therefore, unconstitutional, and the said ordinance and all proceedings had thereunder are void and of no effect.” The city then moved for judgment for. want of a sufficient affidavit of defence. This raised the question of the constitutionality of the 15th article of the act of 1889, and the learned judge of the court below held that the article in question was unconstitutional, and that, in consequence, the ordinance and all proceedings under it were without authority of law and void. The reasons on which this conclusion rests, as gathered from the opinion, may be stated thus :

1. The act of 1889 is local, as it is applicable to only one class of cities.

2. It creates and extends liens in cities of one class only.

3. It changes the practice in courts of law held in counties that contain a city of the third class as to a particular class of cases.

4. It changes the rules of evidence in such courts, so far as they relate to municipal liens.

5. It gives to a sheriff’s sale, upon a municipal lien in a city of the third class, an effect which it does not have elsewhere.

These are serious charges against the act of 1889, and if they appear, upon an examination of the 15th article of the act, to be well founded, the court below was right in the conclusion it reached. Turning, then, to the provisions of the act, we find they are intended to provide a system for the government of cities of the third class. They embrace all the members of the class, and furnish the same machinery and modes of procedure for all. Classification of cities for purposes of municipal government was recognized as valid in Wheeler v. The City, 77 Pa. 338. Laws limited in their operation to a single class of cities are not, therefore, within the constitutional prohibition of local legislation, if they relate to matters that are connected with the organization or the administration of the city government, or the regulation of municipal affairs : Ruan Street, 132 Pa. 257. If such laws relate to other subjects not within the purposes of classification, they fall within the prohibition and are void: Scowden’s Ap., 96 Pa. 425; Davis v. Clark, 106 Pa. 377; M’Carthy v. Com., 110 Pa. 243; Weinman v. Ry., 118 Pa. 192; Wyoming St., 137 Pa. 494. This is, therefore, the test by which to determine the validity of a law relating to a given class of cities. If it relates to subjects of municipal concern only, it is constitutional, because operating upon all the members of the class it is a general law. If it relates to subjects of a general, as distinguished from a municipal, character, it is local, and therefore invalid, although it may embrace all the members of the class. Tried by -this test, the act of 1889 is, in its character and effect, a general law, and must be regarded as constitutional, except as to such particfilar provisions, if any, as transcend the limits imposed by its title, or fail to bear the test to which we have referred. The subject of the grading and the paving of streets is clearly and exclusively one for municipal control. The power to collect the cost of the work so done, by any appropriate form of taxation, is a municipal power. In the case of an original pavement, the right to assess the cost of the work on property along the street paved was possessed by the cities of the commonwealth, under their several charters, before the constitution of 1873 was adopted, or any attempt at classification, as now understood, had been made. The mere fact of classification did not strip the classified cities of their powers. It made the machinery for the exercise of such powers uniform for all the members of the class, but it left the government of each city as it found it, except in such particulars as change was necessary in order to adjust it to the class into which it came : Com. v. Wyman, 137 Pa. 508. The act of 1889 regulates the manner in which the power to pave streets, and collect the cost thereof, shall be exercised,.and authorizes the assessment of the cost upon property fronting on the street, according to the extent of the frontage. So far the act is certainly free from objection, and the work done, and the assessment of its cost on the defendant’s property, are regular.

But some provision must be made for the collection of the assessment, and the act authorizes the entry of a municipal lien for the amount, if not paid when due. This is the method provided for collecting similar assessments in cities of the first and of the second classes. It is not the introduction of a new, but an adoption of an old, and well understood, mode of procedure to secure the city, and give notice of the incumbrance. So much of this article as gives a lien for ten years, without a revival, may be open to criticism, but that question is not raised on this record. For the usual period fixed for the duration of liens, appearing by the records of the courts, this lien is certainly good, if there was authority to enter it in the first place. The amount of the lien may be collected, according to the article of the act of 1889 we are considering, in either of two ways, viz., by an action against the person of the owner, or by a unit of scire facias and a proceeding against the land bound by the lien. These are usual modes of procedure, in which the practice is well settled, and are to be pursued in the ordinary manner. When the defendant is served with the writ of scire facias, he must make an affidavit of defence, as in case of a scire facias on a mechanic’s lien, a judgment, or a mortgage, or as in the case of any action brought to recover a sum of money due. If he does not do this, the statements in the claim filed are to be taken as proof prima facie of the facts stated therein, and judgment may be taken, as in any case under the affidavit of defence laws. Here, again, the established practice in the courts, in like causes, is adopted for the enforcement of the lien in favor of the city. But it is thought that the provision, which declares that a sale by the sheriff of the land bound by the lien shall be deemed a proceeding in rem, and shall vest a good title in the purchaser, is an interference with settled rules of law, and therefore unconstitutional. If this was so, it could not affect the case now before us; our question is not with the title of a purchaser at sheriff’s sale, but with the right of the city to a judgment upon the scire facias. But if the proceeding by scire facias, resulting in a sale by the sheriff, is a proceeding in rem, the fact that it is so declared in the act is of no consequence. The declaration would be, in that case, mere surplusage.

The learned judge was of opinion that this case was ruled by the Appeals of Engle et al., in re Opening of Wyoming St., 137 Pa. 494, but we do not think so. Those cases involved the validity of municipal liens, entered upon the awards of a “ board of viewers.” This board was appointed by the court of common pleas of Allegheny county, but only on the nomination of the city. Its members were removable by the same court, but only on the request of the city. Their salaries were fixed by the city, and paid out of the city treasury. All claims for damages done by the entry of the city on private property were required to be submitted to them for adjustment. Their report was made, not to the court that appointed them, but to the city. The property owner who was not satisfied with their decision was required to appeal to the city, which sat as an appellate court to review and revise the awards against itself for the injury it had done its citizens by its entry on their lands, under the right of eminent domain. The judgment thus rendered by the city, in its own case, was conclusive on the citizen, unless he fled to a court of law at a rate of speed that left no dust on his feet. Having assessed the damages done by the city, the board of viewers added all costs and expenses to that total, and charged the entire amount on adjoining property as benefits, without regard to whether the improvement had conferred any benefits on the property charged or not. The measure of a lot owner’s liability was, therefore, not the benefit he had received, but his share of- the loss some one else had suf* fered. The statute under consideration in that case fell, because the board of viewers, with its powers and functions, was indispensable to the system provided by it, and the provisions relating to the board were unconstitutional.

The act of 1889 provides for the ascertainment of damages and the assessment of benefits, by a system in harmony with that in use in cities of the first and second classes. Its provisions, authorizing the filing of a municipal lien for unpaid assessments, and the collection of the amount so secured, by means of a personal action or a writ of scire facias, are not diverse from those in force in other cities, but in harmony with them. They do not change the established modes of procedure in the courts of law, or the rules of evidence. They create no new style of liens, they change no settled rule of property. The court below was, therefore, in error in holding the act to be unconstitutional, and the affidavit of defence to be sufficient.

The judgment of the court, upon the motion for judgment, is therefore reversed and set aside, and it is now ordered that the record be remitted to the court below, with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered.