City of Chester v. Pennell

Opinion by Mr.

Justice McCollum,

The improvement which the appellant desired was made by the municipal authorities in compliance with his request, and he now seeks to escape liability for his share of the cost of it on the ground that the act under which it was made was declared to be unconstitutional in Ayar’s App., 122 Pa. 266. That the ordinance in pursuance of which the work was done conformed to the provisions of the unconstitutional act and the councils that passed the former were created by the latter appear to be conceded facts on which it is argued that the councils had no legal existence and the ordinance was a nullity. While the argument and the conclusions in which it culminates might, in the absence of curative legislation, be regarded as sound and fatal to the city’s claim, neither of them can have any material influence in the decision of this case, because the act of May 13, 1889, P. L. 196, legalized the councils and validated the ordinance : Devers v. York City, 150 Pa. 208, and Melick v. Williamsport, 162 Pa. 408. In Devers v. York, supra, our brother Mitchell, referring to this act and speaking for this court said : “ The intent of this act is perfectly clear. It was to make all the de facto municipal bodies de jure, and to render all their acts done in their de facto capacity valid and effective in law. It was a universal statute making no exceptions, as there was no room for any. No foresight, legislative or other, could have discriminated among the vast mass of ordinances in all the cities similarly situated which would be required to bring order out of this chaos. The legislature did not attempt it. It validated them all.” The chaos referred to in this quotation was the result of the unconstitutionality of the act of May 24,1887, under and in reliance on which many improvements had been made or were in progress in the cities of the commonwealth to which it was applicable, and among them was the improvement under consideration in this case.

It is claimed that the ordinance in question was invalid because the councils did not comply with the directions of the act of May 1, 1876, P. L. 94, respecting the estimate of the cost of the improvement, the map or plan of the property liable to assessment for the same, and the schedule showing the amount each property owner would be required to pay for it. This claim is based on the assumption that the act of 1887 did not provide a complete and independent -system or method for the authorization and construction of municipal improvements of this character, and that compliance with the provisions of the act of 1876 was essential to the validity of any ordinance passed for the purpose of procuring them. But a reference to the act of 1887 shows that this assumption is unwarranted; that it furnished a complete system of procedure in relation to the grading and paving of streets, and that it contained a clause repealing all laws inconsistent with or supplied by it. It appears to be inconsistent with the provisions of the act of 1876, and that the legislature thought the latter was “ substantially supplied by subsequent legislation ” is manifest from the preamble to the act of May 27, 1889, P. L. 387, expressly repealing it. But waiving the matter of implied repeal we think it is clear that the improvement in question is within the purview of the act of Maj' 23, 1889 P. L. 272, “authorizing assessments and reassessments for the cost of local improvements and providing for and regulating the collection of the same.” The assessment of which the appellant complains was made under this act and we see no valid defense to it.

Judgment affirmed.