Omega Street

Opinion by

Mr. Justice Williams,

This.is a proceeding begun upon the petition of the city of Pittsburgh, for the assessment of benefits upon lot holders resulting from the improvement of Omega street. ■ The improvements had been made under an act of assembly that was unconstitutional. The contract entered into by the city with the parties who did the work was in several respects ultra vires. The contractors had to look to the city for what their work was reasonably worth, and the city was left without any means for enforcing contribution from those who had been benefited by the improvement. To remedy the inconvenience thus encountered the remedial legislation of May 16, 1891, was provided. The report before us was made by viewers appointed under that act, and was confirmed by the court below. This appeal is from the decree of confirmation.

The duties of the viewers are very plainly laid down in the act authorizing their appointment. They must give notice of the time and place of their meeting for the discharge of the duties laid upon them. At the time fixed they are to go upon the premises and “visit and personally inspect the improvements and the property supposed to be damaged or benefited thereby.” They are required to “ hear all parties interested, on all questions before them; ” and, after such hearing, “ to ascertain and determine the total damages and costs and ex-' penses of such improvement.” They are then to ascertain who has been benefited and to what extent by the improvement made, and assess, not the aggregate sum at which they have arrived, but the actual benefits accruing to each lot owner upon his lot. Whatever portion of the damages, costs and expenses may remain unprovided for by the assessment of benefits must fall upon the city. Having heard the parties fully they are to prepare their report, stating the following among other particulars :

1. What the improvement is.

2. The place and places where it has been made.

3. The damages, costs and expenses of the improvement as ascertained and determined by them upon the hearing.

4. The properties in the neighborhood particularly benefited by said improvement and the names of the owners.

5. The properties damaged and the amount allowed in each case.

6. The amount of benefits assessed against each property benefited.

7. What amount of the total amount of damages, costs and expenses are left unprovided for by such assessment.

When this report is prepared it must be open to inspection and exception on a day fixed, and of which notice has been given as required by the act; and if exceptions are filed the viewers “ shall give a hearing on the same, and after such hearing modify their report if equity and justice shall require.”

The report next goes into the court by which the viewers were appointed where exceptions may be again filed to be heard and disposed of by the court, after which final decree may be made. The courts of Allegheny county appear to have adopted no rules regulating the practice in these cases, but there ought to be little doubt about the intention of the legislature. The questions which a lot owner desires to raise should be raised before the viewers in the first instance, or at least upon the hearing before them when their report is made up. All exceptions, and requests in writing for rulings, placed before them should be returned with their report to the court. If one does not appear before the viewers to raise the questions of fact on which he wishes to be heard, he may properly be held to have waived them, unless he accounts satisfactorily for his failure to appear before the viewers. Questions of form or of law, arising upon the face of the report, may however be brought to the attention of the court by exceptions by any one interested, and without regard to his appearance or nonappearance before the viewers. Among the questions raised by this appeal are some that it is alleged were raised before the view, and one that could only have been raised by an exception to the report. The court dismissed them all. An application was then made for a rehearing upon a petition signed by counsel setting forth that an effort was made to secure a hearing before the viewers upon all the questions of fact that had been raised by the exceptions filed in court, but that the effort was unsuccessful, the viewers stating that they would hear no evidence regarding the character of the work or its value “ and would only take the contract price as furnished by the city engineer.” If this petition stated the truth it was sufficient ground for setting the report aside and appointing a new view that would comply with the requirements of the law under which it was appointed. The petition was however refused and a final decree of confirmation entered.

But independently of the petition for a rehearing the report itself affords conclusive evidence that the viewers adopted a false basis for their report and misconceived their duties. They state that, they have assessed the damages, costs and expenses at five thousand seven hundred and seven dollars and ninety-eight cents, and to show how they have arrived at that sum they incorporated into their report the following document:

“ Chief Department of Public Works.

Statement of Costs.

2950 cubic yards grading $0.30 $ 885.00

1488 square “ paving 2.00 2976.00

1254 lineal feet curbing .89 1116.06

104 sq. “ crossing 1.00 104.00

8 “ yards block stone 3.74 29.92

Total costs &c. $ 5110.98”

To this they add damages assessed by them to lot holders 597.00

Making an aggregate of $ 5707.98

The items that make up their total of damages, costs and expenses do not even purport to have been ascertained by them, but to have been furnished from the books of the city, showing the payments made under the contract which fell with the law under which it was made. Whether this contract furnishes a measure of compensation on which the contractor could insist as between him and the city is a question not raised here, and which it is not necessary to consider, but we have distinctly held that it does not furnish a measure binding on the lot bolder: Bingaman v. The City of Pittsburgh, 29 W. N. 364, 147 Pa. 353. In that case, and upon this precise question, the present Chief Justice expressed the unanimous opinion of the court in these words: “We are of opinion that the act contemplates that the assessment should be made on the basis of a quantum meruit. At the same time the contract under which the work was done is some evidence of the cost of the improvement and may be considered by the viewers when they come to make the assessment.” In this case the viewers do not so much as say that they believe, or that they find from the evidence, that the contract price was a fair price. They make no inquiry, but acting upon the mistaken idea that they were bound by the contract price they had the proper officer certify that price to them, embody that certificate in their report, and as is asserted in the petition for a rehearing, declare their purpose to “ only take the contract price as furnished by the city engineer.”

The first and fifth exceptions should have been sustained and the report set aside or re-committed.

The decree of confirmation is set aside at the cost of the appellee and a procedendo awarded.