Whitney v. City of Pittsburgh

Opinion,

Mb. Justice Williams :

These appeals are part of a series of cases brought into this court in order to determine the extent to which the city of Pittsburgh is affected by the decisions in the appeals of Wilbert, Engel et al., made in January last: Wyoming St., Pittsburgh, 137 Pa. 494. The importance of these cases to the officers and the property holders of the city, was such that we felt it our duty to facilitate the final hearing. We accordingly transferred them to the Eastern District, advanced them on the calendar, and have given them a full and patient examination. We acknowledge our indebtedness to counsel for the results of their research, and for the ability and fairness with which, both in their oral and written arguments, they have treated the questions involved.

The court below enjoined the city against the making of awards in favor of those damaged by the improvements in progress, and the assessment of such damages, with the costs, against property benefited, and also against the collection of liens entered upon such assessments already made. An appeal from that decree raises two questions : First, is the rule laid down in the appeals of Wilbert et al. to be adhered to ? Second, if so, are there not enough of the provisions of the acts of 1887 and 1889, known as the “ street laws,” remaining, to enable the city to proceed with its improvements at the expense of property benefited by them ? The first of these questions was not seriously pressed in the argument. Two of our brethren did not concur in all the reasons given for the judgment in the appeals of Wilbert et al., but they concurred in the judgment entered. We think it stands on solid ground, and shall not enter upon a re-examination of it. Referring to it as tbe starting point from which to begin the examination of this case, we will consider very briefly the second question, viz., to what extent are the acts of 1887 and 1889 affected by the decision in that case ?

It will be seen upon looking into these acts, of which we will speak as the “ street acts,” that they were intended to establish a system to be made use of by the city, for opening and grading streets and making other municipal improvements at the expense of property in their immediate neighborhood which would be increased in value because of them. A somewhat different system had prevailed previously. The foot-front rule was in use in some portions of the territory embraced within the city limits. In other portions, this was not applicable, because the property in them was rural in character. The street acts undertook to provide a uniform system and apply it to all improvements within the territory of the city. It was based on the assumption that wherever one lotowner was injured by taking his land, or by a change of grade in the street bounding it on either side, some other lotowner was correspondingly benefited, and ought therefore to pay his neighbor’s loss. Proceeding upon this theory, the street acts provided for a preliminary inquiry in every case where a new improvement was projected, to ascertain whether damages would be inflicted upon any lot-owner by the improvement if made, and whether corresponding benefits would result to other lotowners therefrom. This inquiry was made by the board of viewers. If they reported that the damages would exceed the benefits, then, as wc understand the street acts, the project was for the time abandoned. If they reported that the benefits would be sufficient to pay the damages and expenses, then the city proceeded to direct the improvement to be made. After this was done, the viewers made a detailed estimate and award of damages sustained by those whoso property was taken or injured, and reported the same to the city. The aggregate of these awards, with all the costs and expenses, was then to be assessed upon the property benefited. When the assessment was completed, it was returned to the councils for adjustment and collection. If not paid on notice, municipal liens were entered against the several properties assessed, and proceedings were taken to collect the same by levy and sale by the sheriff.

The board of viewers is thus made an indispensable part of the system. Without its agency, no improvement can be undertaken except it be by the city and at its own cost. An ascertainment of damages cannot be had except through the action of the board of viewers. The assessment of benefits must be made by it. The report of the board is the basis on which liens for the sums assessed as benefits must rest. When the work of the board of viewers is taken out of the system, all that depends upon that work goes with it, and the system itself is literally eviscerated. The few detached and unrelated provisions that might remain are without significance or value and ought not to survive the system to which they belonged. The system provided by the street acts must fall as a whole. The way will thus be clear for the enactment of a street law for cities of the second class. As nothing remains of the system provided by the acts of 1887 and 1889, it is hardly necessary to say that its authority cannot survive for any purpose. All the preliminary reports made by it fall, and no improvements can be ordered under them. All the assessments of damages and benefits fall, and all the uncollected liens, entered upon these assessments, go with the assessments. All work done or to be done upon these improvements, as the law now stands, must be paid for by the city. All the damages inflicted upon lotholders must be recovered from the city.

There is no possible escape from the dilemma in which the city is placed by the unfortunate legislation of 1887 and 1889 except through the legislature, and we have made haste to dispose of these cases in order that there might be time for that body to give proper consideration to the subject. There are two cities of the second class at this time. At the end of the present decade, the city of Scranton, and probably one or two more, may be brought by their growth in population into it. A system should be prepared for cities of the second class that shall not undertake to transfer the powers of the courts of law to city councils, or to regulate the practice in the courts by reference to the town or city in which they are held; that shall not denpr to the citizen free access to the courts for redress of injuries, and that shall not treat the ascertainment of damages sustained by a citizen, by reason of an entry upon bis land under the power of eminent domain, as a matter of municipal control. We do not doubt the readiness or the ability of our brethren who compose the legislative department of the government to provide such a system in the time still at their disposal. Until this is done the injunctions must remain in full force.

The decrees appealed from are affirmed, and the appeals dismissed at the cost of the appellant.

APPEALS BY WHITNEY, ET AL.

Opinion,

Mr. Justice Williams :

These are cross-appeals from the decrees just considered on the appeals of the city of Pittsburgh. The appellants contend that the injunctions which were issued did not go far enough, because they did not restrain the city from completing the improvements entered upon under the street acts of 1887 and 1889, even though done at its own cost. The position is taken that the act of June 14, 1887, [P. L. 895,] entitled “ An Act in relation to the government of cities of the second class,” is unconstitutional, and that the heads of departments selected under its provisions are not competent to contract or bind the city in any manner whatever. The question presented by these appeals is therefore over the constitutionality of that act, and the organization of the city of Pittsburgh as a city of the second class.

It is urged that §§ 1, 2,10 and 20 make the act local, by fixing dates at which acts necessary to put the government in operation are to be done, which were possible only to one city, the city of Pittsburgh, and which are impossible to the city of Allegheny, which has come into the class since the act was passed. The reply to this objection is, that, at the date when the act became a law, there was but one city in the second class. The provisions of the act were general in their character. They related to all cities of the second class. If there had been several such cities, the terms employed would have applied to all alike. It was necessary, in order to give effect to the change in the system of municipal government, that a definite time should be fixed upon at which the change should take place and the new system be put in operation. The trouble with the act is not that it made such a provision for cities then entitled to a place in the second class, but that it did not also make similar provisions for cities that should thereafter be entitled to come into the class. We cannot hold, however, that the failure to provide a date for the organization of cities after-wards to come into the class, deprives such cities of the benefit of the law, or renders it local, and so, inoperative, in the cities to which it would otherwise be applicable. It may be that dates following the proclamation of the governor showing a given city to be entitled to become a city of the second class, corresponding with the dates following the passage of the act which were fixed for the cities then in the class, would be properly adopted. Something like this was done in Shurley v. Railroad Co., 121 Pa. 511. But,, if this should be thought inadmissible and further legislation should be resorted to, we do not see that the conclusion of the appellants would follow. The act of 1887 is general in terms, and it is clearly applicable to all the members of the class as it was then composed, and answered the test laid down in Weinman v. Railway Co., 118 Pa. 192, and kindred cases.

The other position taken is, that §§ 1, 5, 6, 7 and 9 offend against § 6, article III., of the constitution, which declares that “no law shall be revived, amended, extended, or conferred by a reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length.” The first section is thought to violate this provision, by the declaration that the legislative powers of cities of the second class shall be vested as heretofore in two branches. This does not extend or confer powers, previously exercised in some other way, to the two branches of the councils, but leaves the legislative power just where it was before, with no change in its extent, in the body exercising it or in the name or title of that body. The city councils possessed the power before the city came into the second class, and when it came it brought its councils with it, just as it brought its mayor, with their powers and titles unchanged. Such a declaration does not violate the constitution in any particular. The same thing may be said of the ninth section, which declares that certain offices named, including that of city treasurer and controller, “ shall remain as heretofore, except as herein otherwise provided.” These offices, with the incumbents, came also with the city into the new scheme of government, and became a part of it, as did the mayor and councils. So far as new duties were put upon them, or old ones taken away, the act made the necessary provisions ; but where no change was made, the officers assumed the responsibilities and discharged the duties belonging to them, just as though no change in class had taken place. Nothing was added to or taken from their functions or powers, except by express words.

The objection made to the fifth, sixth, and seventh sections is much more serious. These sections do undertake to confer powers, previously exercised by a number of officers whose offices are discontinued, upon the heads of departments created by the act. They undertake to extend to these new officers all the acts of assembly relating to the duties and powers of all these unnamed and abolished offices, without even a reference to their dates, their titles, or their subject matter. To understand what was, and what was not within their control, it would be necessary to digest all the local laws relating to all the officers whose functions are thus gathered up and dropped into the hands of the “ heads of departments.” This mode of defining the powers of a newly created officer is in violation of the letter and the spirit of the constitutional provision, and cannot be sustained: Titusville Iron W. v. Oil Co., 122 Pa. 627; Donohugh v. Roberts, 11 W. N. 186.

The heads of departments are not wholly stripped of official functions and authority by this holding, for in the fifteenth, sixteenth, and seventeenth sections, certain general powers in their respective departments are conferred upon them, within which they may properly act and bind the city. It is nevertheless true that supplementary legislation is needed in order that these officers may be able to assume the importance in the management of municipal affairs, which the system of government for cities of the second class plainly contemplates. The seventh section is not as objectionable as the fifth and sixth. It professes to confer upon five magistrates the right to exercise for certain purposes the same police powers as are possessed by the mayor. The police power of the mayor is not diminished. That remains as before, but for certain purposes five magistrates have the right to exercise the same police powers. The police power is a common-law power. The legislature may properly confer it upon a newly created office by general words, for that reason. But, if the mayor exercises powers created and conferred by statute, in addition to the general police power of which we have spoken, such statutory powers could not be conferred on the magistrates by such general words as are employed in this section. It may be that the mayor’s police powers are only such as fall properly within the general or common-law meaning of the words. If so, we do not see why this section may not stand.

The eighteenth section authorizes the councils to create new departments in the city government and to define their powers. This cannot be sustained. The legislature must settle the system of government for each class of cities, and it must be the same for each and every member of each class. No city in any class can change the number of or the distribution of powers among the departments into which its government is cast by the legislature. If this were not so, no two cities in the same class would long retain the same form of municipal government, and general legislation for the class would, on many subjects, become impossible.

The first proviso in the twenty-third section fixes the minimum valuation to be put on real estate in all cities of the second class. This may be a convenient mode for the assessor, and a desirable one for the city; but we do not understand how the legislature can fix an arbitrary valuation of property in one city or class of cities wholly unlike that in actual use in all other cities or classes of cities. The constitution requires that taxes shall be uniform and assessed under general laws. We do not doubt the power of the legislature to adopt such a standard of valuation for the whole commonwealth. What we do doubt, is the power to adopt it for a city or class of cities. If this provision for cities of the second class is good, then there might be another standard of value adopted for cities of the first class, another for cities of the third class, and so on through the boroughs and townships, until any approach to equality in taxation would be rendered impossible.

Our attention has not been called to any other sections of the act, and it only remains for us to state the result of our conclusions in tbeir practical effect upon the city, in as few words as possible:

1. The city of Pittsburgh is now legally organized as a city of the second class under the act of June 14,1887; and it must stand on the system of government provided by that act for the class of cities to which it belongs.

2. The mayor, councils, treasurer and other officers, who came with the city into the new system and became a part of it, continue in the possession of the powers and subject to the duties conferred and imposed upon them by the laws in force relating thereto.

3. The heads of departments are newly created offices that must look to the act creating them for their powers. The offices were legally created and are de jure offices. The officers were legally selected, and are therefore de jure officers. The grant of powers to them is defective, and they possess none except such as are conferred by the fifteenth, sixteenth, and seventeenth sections, which are general, and in many respects indefinite and inadequate.

With a little supplementary legislation, in aid of the heads of departments, we do not see why cities of the second class will not be in possession of a well-equipped municipal government. The court below was right, therefore, in refusing to tie up the hands of the city, so far as work was necessary for the comfort and convenience of its citizens, and done at its own cost.

The appeals arc dismissed, at the cost of the appellants, respectively.

APPEAL BY PITTSBURGH, PROM QUABTEB SESSIONS.

Opinion,

Mb. Justice Williams:

This case presents a subject for consideration not involved in the appeals of the city of Pittsburgh in the injunction cases just considered, or in the cross-appeals of Whitney et al. from the same decrees.

The city came into the Court of Quarter Sessions with a petition reciting the following facts, viz.: That Pittsburgh was a city of the second class; that it had opened and graded streets and constructed sewers under the provisions of the acts of 1887 and 1889, and had others in the process of construction and opening or grading; that the said acts provided for an ascer-tainmentof the damages done by such improvements, and an assessment of tbe same as benefits on property in the neighborhood of the improvements; that the board of viewers, created by said acts for this purpose, had been declared unconstitutional by the decision rendered in the appeals of Wilbert and others, and their assessments set aside. On these facts it asked the court to appoint viewers under the act of 1864, and its supplements, to ascertain the damages done to those injured by the improvements, and assess benefits upon those whose property was increased in value by them.

If the petition was intended to assert that the acts of 1887 and 1889 made any general provision upon the subject of damages and benefits, not connected with and dependent on the particular system provided for their ascertainment by the board of viewers, it is not sustained by an examination of the acts. The provision relating to the subject is in these words: “ The value of the property taken, or damage done to property thereby, shall be levied and collected upon the several properties benefited .by such improvement in the manner provided by section twelve of this act.” No provision is found not coupled with a reference to the board of viewers, which gives any direction upon the subject of damages or benefits. The method for the assessment of damages and benefits which was provided has fallen under the weight of Wilbert’s Appeal. The whole system built upon that method has fallen under the decision in the appeals of the city of Pittsburgh in the injunction cases just decided. The acts of 1887 and 1889 can therefore afford no help to the city, for they are literally expunged from the statute book.

Did the act of 1864, and its supplements, authorize the appointment of viewers asked for ? Under the act of 1864, neither the Quarter Sessions nor the Common Pleas was authorized to appoint viewers. The city appointed her own appraisers to estimate the injury she inflicted on her citizens by her own entry on their land. This body reported to the city, not to the courts. The city and not the courts of law had immediate appellate jurisdiction, and sat to hear and determine, in the first instance, the claims against her upon which she had already passed by her board of viewers. The act of 1878 authorized the Quarter Sessions to appoint viewers, but the pre-lirainary examination was made, as we understand, by the city engineer, wlio was required to give notice to the owners of property affected, at least thirtjr days before the time fixed for opening, etc. Upon the letting of any contract, it was made the duty of the city engineer to assess “ fifty per cent of the cost thereof, which shall be pay ble within thirty days from the commencement of the work, and the remainder of the cost thereof shall be assessed at the completion of the work; both of said assessments shall be collected and liens therefor shall be filed and proceeded on as now provided by law.” An assessment under the act of 1878 is not practicable, because none of the proceedings have been under or in accordance with the directions of that act. These improvements were authorized on the petition of one third of the property owners, under the act of 1887, and they have been conducted in accordance with the directions of that act and the act of 1889. It is clear, therefore, that the system provided by the act of 1864, and its supplements, is wholly inapplicable to these improvements in their present condition, even if we should concede that the system is still in existence for any purpose. We see no relief for the city from the dilemma in which its unconstitutional street law has placed it, except through the legislature. We should be glad to escape this conclusion if we could, but we cannot. The responsibility for the resulting inconvenience does not rest on us.

The learned judge of the court below reached a correct conclusion. He could not appoint viewers under the act of 1887, if in force, for that act took the jurisdiction from the Quarter Sessions and gave it to the Common Pleas, tie could nob appoint them under the act of 1864, and its supplements, because, assuming them to be in force for this purpose, their directions had not been complied with in any important particular.

As a new street law for cities of the second class becomes necessary, we were asked by counsel on the argument, to assist its preparation by indicating any other objectionable features in the system of 1887, not directly involved in these cases. This is an undertaking of great delicacy, upon which we should not have entered except at the request of counsel representing both sides, and in which wo shall confine ourselves to a very few suggestions which seem to us elementary. They are as follows:

1. A city may determine when, where, in what manner, and to what extent it will enter upon and appropriate the property of a private person in the exercise'of the right of eminent domain. This is a municipal question. The constitutional requirement that just compensation shall be made to the owner, must be enforced by the state courts in accordance with general laws. This is a judicial question. The city has no more control over the proceedings, than it would have over an action against it brought to recover the price of goods sold or work and labor done.

2. The assessment of benefits is an exercise of the taxing power. The tax is defensible on the groltnd that it rests on an actual benefit conferred on the particular piece or pieces of property on which it is levied. It is a local tax resting on local benefit. This was distinctly ruled in the recent case of Allegheny City v. Railroad Co., ante 375. An assessment levied in order to cover all the cost of a given improvement, without regard to the actual benefits conferred by it, is simply confiscation. As an assessment is only valid because of actual benefits, it follows that these benefits should be fairly estimated. When determined, they may be collected by instalments if that seems desirable; but the assessment or adjustment of the benefits cannot be changed when once made, except for reasons that invalidate it and require it to be made de novo.

3. The benefits to be assessed are such as are peculiar to the property assessed. A mere general increase in the value of property in that part of the city, is not enough. It must relate to the increase that is peculiar to the property liable to assessment, and is due simply to the improvement proposed.

4. This tax stands on peculiar grounds. When the benefits are assessed, a city cannot add to the assessment anything except the taxable costs incurred in its collection. All its officers are paid by salaries. The duties they perform, in connection with the streets and sewers, are such as belong appropriately to their respective offices, and are compensated by their salaries. The city solicitor receives a salary of five thousand dollars per year, and his assistant one or two thousand. He is required, by a succession of ordinances, to pay into the city treasury all foes and commissions collected. Tbe same system prevails in cities of tbe first class and in cities of the third class. The officers are paid by salaries and all fees go into the city treasury, and this is the plain intent of the constitution: See §§ 7 and 12, article V., and § 5, article XIV. See, also, § 15, act of March 81, 1876, [P. L. 17?;] § 40, act of May 23, 1874, P. L. 253. As no commission can be paid by the city or received by the solicitor for the collection of municipal liens entered upon an assessment of benefits, the payment of it by the property holder is simply a payment of the amount, whatever it may be, in aid of the taxpayers in general. If the city can collect five per cent for such a purpose, it can collect one hundred.

5. Section 31 of the act of 1887, authorizes the city to suspend work by its contractors without liability for the loss such suspension inflicts. "We have no doubt that a contractor may agree that the city shall reserve such a power, and be bound by his agreement; but, it may be worth while to consider whether the legislature can authorize a city of the second class to violate its contracts without liability* Can contracts made b}r a city of one class, be put on different ground from contracts made by other cities belonging to other classes ?

6. Section 22 establishes a system of practice in the courts relating to municipal liens in cities of the second class. The practice may be changed in regard to particular subjects by general laws. Municipal liens is such a subject; but not municipal liens in one city or class of cities. There cannot be a different system of practice in the courts for the collection of municipal liens, for every class of municipal corporations in the commonwealth. Classification will not justify that: Ayars’ App., 122 Pa. 266; Weinman v. Railway Co., 118 Pa. 192; Ruan St., 132 Pa. 257.

7. It should be remembered that while a city is to be regarded as representing the commonwealth, and acting as an instrumentality of the sovereign power for certain purposes of local government, it may and often does occupy a widely different position toward its citizens. This court has repeatedly said that when a city sells gas or water to its citizens, it enters into a contract relation with them. When it enters upon their land, under the power of eminent domain, it becomes a trespasser unless it follows the directions of the general laws relating to that subject. ■ When it contracts with or trespasses on its citizens, it has no higher position than any other contracting party or trespasser. When, in either of these relations, it gets into the courts, it is neither greater nor better than its humblest citizen. The rules of law do not change with the name of the party to litigation. There is not one law for the rich, and another for the poor; one for the city that commits a trespass, and another for a citizen who does the same thing; but city and citizen stand on the same level as parties litigant. What would be thought of a law that authorized a railroad company to exercise the right of eminent domain, to appoint viewers to assess. the damages their entry might inflict, to receive the report of their viewers, and sit as an appellate court to hear evidence for and against themselves, and render a judgment in their own cases which should “ be final and eoñ-clusive, unless ” the injured party could plant his appeal in a court of'record within one half the time that is allowed for an appeal in the most trivial case from a judgment of a justice of the peace ? This, with* a slight change in the name of the party taking land under the power of eminent domain, is the system which the city of Pittsburgh has enjoyed.

We have, as will be seen, ventured beyond the lines of our case in making these suggestions. We should not have done it if counsel had not led us to suppose we might thus render some service in the present situation of legislation relating to cities of the second class. We fully realize that what we have thus said is obiter. It is not the opinion of the writer only ; yet, as it is not necessary to the decision of this case, it has no judicial authority. Its value must depend on the extent to which it commends itself to the judgment of the parties interested, and of the legislative bodies to which the parties must go for the relief needed.

. What we may think upon these subjects when they are presented by an actual case, and we are able to examine them in the light which discussion and fuller reflection may throw upon them, we cannot tell. Our suggestions have been intended to call attention to the subjects to which they relate, and they express our personal views at this time.

The appeal in this case is dismissed at the costs of the appellant.