City of Chester ex rel. Ross v. Eyre

Opinion by

Mr. Justice Gbeen,

When this case was here before, 167 Pa. 308, it was only upon the sufficiency of an affidavit -of defense in which it was alleged that the work was not done by the city nor in pursuance of its authority, but by the plaintiff Ross “ on his own motion and without the authority of the city to do so.” The sufficiency of that defense alone, was considered and, on that one point only, the judgment was reversed and the case sent back to be heard on its merits. On the hearing before the referee a large amount of testimony was taken on this very subject, and it was simply overwhelming in proof of the fact that the work was done by the authority of the city, and that Michael Ross, the plaintiff, was not only authorized, but positively ordered, to do the work in question by the proper officer, the commissioner of highways. Moreover, an ordinance for the curbing and paving in question had been passed by the city councils on September 22, 1891, and on November 16,1891 notice partly printed and partly written was given to Mrs. J. P. Eyre, one of the defendants, requiring her to do the work in pursuance of the ordinance, within ten days from receipt of the notice, or otherwise the work would be done by the highway department. The referee has found all these facts, and the defendants entirely failed to estahlish the facts set out in their affidavit of defense, and the former decision has no application in the present consideration of the cause. All of that branch of the argument for the appellants will therefore be dismissed without further notice.

The offers of testimony which were rejected by the referee are in no better condition. The official action of the city by its proper officers certainly could not be abrogated by the declarations of individual members of the sidewalk committee, and this kind of testimony was the basis upon which the offers in question were made. The ordinance of councils is the proper legal expression of the city’s authority in reference to all matters of grading, paving and curbing on the streets, and the proposition is not to he tolerated for a moment that the declarations of the members of any of the committees can suffice to defeat and overthrow such ordinances. The matter is too plain for ar-» gument, and we are clearly of opinion that the rulings of the referee on this subject in disposing of the rejected offers of testimony were absolutely correct. Moreover all the work done by the plaintiff in this regard was fully accepted and ratified by .the city councils after it was completed, and even had there been any real question as to want of prior authority to do the work, the decision of this court in Shiloh Street, 165 Pa. 386, would amply sustain the subsequent ratification and thereby validate the action of the plaintiff in the performance of the work. The record shows that the defendants had ample notice of the passage of the ordinance requiring the work to he done, and also notice in writing that the work must be done. Although the ordinance was passed in September, 1891, and the written notice to do the work was dated November 16, 1891, and duly served thereafter, nothing was done by the following spring, and thereupon the highway commissioner, on April 16,1892, notified the plaintiff, who was city contractor, to proceed and do the work. A further delay of several months took place and still the work was undone, and it was not until October, 1892, that the plaintiff did the work, acting under the authority of the ordinance of September, 1891, and the written order of the highway commissioner.

It seems hardly necessary to refer to the legislation which clothes the highway commissioner with authority to act in the premises, but as some question is made upon this subject in the argument for the appellants, reference is made to the ordinance of February 10, 1891, printed in the ordinance book at p. 456. The second section directs that whenever the city councils shall by resolution or ordinance direct the sidewalks or footways of any street or alley to be curbed or paved it shall be the duty of the owner, after notice by publication, to do this work, and if not done by the owner within thirty days after the publication of the notice, “ it shall be the duty of the commissioner of highways to cause the same to be done, and the cost and expense therefor shall be collected from said owner or owners by lien or suit according to law.” The third section contains a similar provision in case any of the sidewalks or footways become out of repair, and if after notice by the highway commissioner by authority of the sidewalk committee, the work is not done by the owner, then the highway commissioner is directed to cause the work to be done, and the cost and expense to be collected. As this section relates to cases of repairs, and as this case is one of new work, it is the second, and not the third section, that is applicable. But the ordinance of September 22, 1891, is specific, and is directed to this very work to be done on both sides of Eighth street from Barclay street to Concord avenue, which embraces these premises, and by that ordinance it is provided that in case of the failure of the owner to do the work within the time specified, “ the commissioner of highways is authorized and instructed to have the same done and collect the costs thereof by lien or suit as provided by law and ordinance.” It will be seen at once that the sidewalk committee has nothing to do with the matter under either of the ordinances applicable to the present case, and hence the acts or declarations of the members of that committee are not relevant.

As to the contention that the lien was improperly filed against the whole of the property of the defendant on Eighth street, it is only necessary to say that the property was a unit, embracing all within the boundary lines, and with no division lines across it in either direction. The referee found that the entire square of ground was used as the curtilage of the mansion, which stood very nearly in the center of the lot, and that there were no marks or division lines of any kind upon the ground by ■which the city solicitor could have made a division for the purpose of the lien. In these circumstances there is no force in the appellant’s contention. In a well considered case in the common pleas of Philadelphia county, City to use of Ryan v. Cadwallader et Ux., 22 W. N. C. 8, this question arose, and it was decided that the claim was well filed against one lot as a whole, although there were really four lots separately laid out on the registered plans in the survey office of the city. In a careful opinion written by our Brother Mitchell, who was then a member of that court, the lien was sustained. The reasoning of the opinion is entirely satisfactory to us, and we hold, as was there held that there being no division lines marking the different lots, the claim of lien filed was not defective because it was filed against the whole. In the present case there could be no means of distinguishing parts of the property which are liable for the cost of the work from other parts which are not so liable, and as the whole property was used as one, we think the lien was not defective in not defining interior lines.

There are some other matters of minor consequences appearing in appellant’s argument, but we do not regard them as of any materiality, and without considering them in detail we are of opinion the judgment should be affirmed.

The assignments of error are all dismissed.

Judgment affirmed.