Erie City v. Willis

Opinion by

Bice, P. J.,

This case grew out of the construction of a lateral sewer in Myrtle street from Twenty-ninth street to' Peach street. We have not been furnished a copy of the ordinance, but we assume from the course of the argument that it provided that the cost be assessed upon the abutting properties “by an equal assessment by the foot front,” etc. .The claim filed against this piece of land was for its proportion of the cost of the construction of the sewer; also for the cost of house connections, and five per cent penalty for nonpayment of the assessment within the time required by the ordinance.

The matters assigned as error are the refusal of the court to strike off the lien, certain rulings upon evidence and instructions given to the jury upon the trial of the sci. fa., and the refusal to enter judgment for the defendant upon the point of law reserved non obstante veredicto. The questions thus raised are summarized in the appellants’ statement of the questions involved under five heads, and we will discuss them in the order there presented.

1. It is suggested, although the' point is not argued in the appellants’ printed brief, that the way described in the claim as Myrtle street was not a legally opened street. This was a mixed question of law and fact. The learned trial judge instructed the jury that although the street was established by ordinance in 1874, yet it was necessary to make it a public street that it “ be opened by the city on the ground and used as a street by the public,” and submitted to them the question whether “ there is a street there on the ground used by the public which has been accepted by the city and opened as a public street.” So far as this proposition involved matter of law there was no error of which the defendants can complain, and there was ample evidence to warrant the jury in finding the essential facts referred to in it.

2. Section 35 of the Act of May 16, 1901, P. L. 224, provides that whenever the cost of local improvements of any kind in cities of the third class is to be assessed upon the abutting properties, at least five days’ notice shall be given of the time and place of making the assessment, also that notice be published in one or more newspapers for three successive days. Notice was duly published the required number of days, and was served on the owner on April 21. But as the assessment was to be made on April 25, this was one day short. The assessment consisted of an apportionment of the cost of the improvement on the properties abutting upon it by the foot front rule and was made by the city engineer. He put this in tabulated form, showing cost of the improvement, including the itemized accounts of the several amounts charged to each property, and returned it to councils. Having been approved by them and the mayor, the claims for the amounts thus assessed went into the hands of the proper city officer for collection. No question is raised as to the regularity of the assessment, except as to the notice. But it is claimed that the statutory provision as to that matter is mandatory, and must be obeyed under the penalty of having the assessment and all subsequent proceedings declared void. What we have to say upon that subject is to be understood as relating only to an assessment by the city engineer, whose simple duty is to apportion the cost as above stated.. A leading case upon the subject of mandatory and directory provisions of a statute is Bladen v. Philadelphia, 60 Pa. 464, where Justice ShaksWood said: “ It would not perhaps be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. . Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory ; but negative words which go to the power or jurisdiction itself have never, that I am aware of, been brought within that category.” This statement of the general rule, as any statement must, leaves considerable latitude for construetion as particular cases arise, as will be seen by a comparison of the decision in Pittsburg v. Coursin, 74 Pa. 400, with the opinion of Mr. Justice Clark in Hershberger v. Pittsburg, 115 Pa. 78. Both of these cases involved a construction of different sections of the Act of January 6, 1864, P. L. 1181. The latter related to sections 3 and 11, and it was strongly intimated but not positively decided that the provision as to the notice to be given by viewers appointed to appraise damages and benefits was intended “ to impose alimitation upon the jurisdiction and power of the viewers,” and therefore was mandatory. The former case involved a construction of section 7, and it was held that the provision relative to the notice to be given by the recording regulator was directory only. There is no conflict between these cases, and it is very evident that in deciding the Hershberger case, the court did not intend to disturb or qualify in any way the ruling in the Coursin case; for, after quoting from it to show the point decided, Justice Clark said: “ A statute directing the mode of procedure by a public officer is in general deemed directory; a precise compliance is not essential to the validity of the proceedings unless so declared.” The difference between the procedure under section 7 of the act of 1864 and the procedure under review here, is one of form only and not of substance. The power and jurisdiction of the regulator under that section were substantially the'same as the power and jurisdiction of the city engineer in our case, and in neither case were they discretionary in their nature. True, section 7 of the act of 1864 directed the regulator to make up the assessment and then give notice, but the purpose of the notice was to give parties interested an opportunity to have any errors or mistakes corrected, and this was to precede the return of the assessment to the treasurer. Manifestly the notice directed to be given by the city engineer in our case was no more essential to the validity of the assessment made up by him than was the notice directed to be given by the regulator essential to the validity of the assessment returned by him to the city treasurer. In concluding his opinion in Pittsburg v. Coursin, Justice Sharswood said: “ It is true that we ruled in Hutchinson v. Pittsburg, that where due notice has been given, the assessment is conclusive upon the party, but it does not fallow that if not given the assessment is thereby wholly invalidated, but only that it is not conclusive. The party may show error's and mistakes, and have them corrected on the trial of the scire facias upon the claim.” As we regard this case, it is an authoritative decision of the substantial question before us ; therefore further discussion is unnecessary. The principle upon which it was decided has been applied in other analogous cases, amongst which may be mentioned Magee v. Commonwealth, 46 Pa. 358; White v. McKeesport, 101 Pa. 394; Dewhurst v. Allegheny, 95 Pa. 437; Beaumont v. Wilkes-Barre, 142 Pa. 198; Com. v. Beaver Borough, 171 Pa. 542.

3. The claim was died in the proper office within the time prescribed by the act, and was entered on the judgment index as directed by the 26th section. Thus far, the statute was complied with literally. But, instead of entering the claim in the mechanic’s lien docket, as directed by the same section, the prothonotary entered it in the municipal lien docket. He also neglected to keep a locality index at that time, as directed by the 27th section. Compliance with these statutory provisions, was not optional with the prothonotary, and we are not to be understood as deciding that the procedure pursued by him was as effectual for all purposes as if he had complied strictly with them. But it is quite clear to us that failure to enter the claim in the mechanic’s lien docket, in addition to entering it in the municipal lien docket, or the prothonotary’s neglect to keep a locality index, was not sufficient to invalidate the lien as between the parties, nor to absolutely bar recovery upon the sci. fa. issued upon it. What may be the effect of these irregularities upon the rights of the plaintiff as against third persons is a question upon which we express no opinion. See Magee v. Com., 46 Pa. 358; Dewhurst v. Allegheny, 95 Pa. 437; Summy v. Hiestand, 65 Pa. 300.

4. It is objected that the claim is defective because it does not properly set forth (a) the authority under and by virtue of which the work was done; (5) the kind and character of work done and materials furnished. As to the latter, we adopt the language of Judge Walling: “I am of the opinion that the lien sufficiently sets out the kind and character of the work done. It gives the size of the sewer, its material and the length in front of defendants’ property and the price per foot; and also the length and price per foot of the house connections. Where the entire improvement is let in one contract, as in this case, the city might not be able to set out the exact amount of labor and material that went into the improvement in front of each property.” The claim described the ordinance under which the work was done and assessments made by its title and the date of its approval, and declared that the' lien was claimed “ by virtue of the provisions of sundry acts of assembly relative to the construction of sewers .... and the assessment and collection of the cost thereof by a tax upon the real estate fronting on the streets so improved and the filing of liens therefor.” That more was needed in order to comply with the requirements of the act relative to setting forth the authority under or by virtue of which the work was done and the assessments' made, has not been made clear. We think the claim was sufficiently explicit in this regard, and in support of this conclusion refer to the case of Philadelphia v. Richards, 124 Pa. 303.

5. The only remaining question relates to the charge for two house connections of eighteen feet éach. It seems that in constructing the sewer, branches were laid therefrom to the inner side of the curb in front of these and doubtless other abutting properties. As we understand the case, the cost of these house connections was not included in the cost of the lateral sewer, and therefore was not apportioned according to frontage amongst the several abutting properties. The authority, if it existed, for imposing a charge upon the defendants’ property for the actual cost of these house connections, must be found in Section 5, Article 13, of the Act of May 23, 1889, P. L. 277, as amended by Section 29 of the Act of May 16, 1901, P. L. 224, 246. But that section plainly contemplates notice to the owner and default of compliance with the notice. It is conceded, however, that no notice was given; hence it cannot be said that the defendants were in default, and unless the facts distinguish the case from Pittsburg v. Biggert, 23 Pa. Superior Ct. 540, the principle there decided would seem to be applicable here and to sustain the defense so far as this portion of the claim is concerned. It is urged, however, and the learned judge below took that view of the evidence, that the failure to give notic^ to the defendants to make the house connections was rendered immaterial by the fact that they actually extended these house connections across their premises to their dwellings, and are now using the sewer. The difficulty we find is not so much in the legal principle as in the evidence; for, while the witness who testified upon that subject said in his direct examination that these house connections were extended to the defendants’ premises by an arrangement between them and the contractor; yet, upon cross-examination, it appeared that he had no definite knowledge upon that subject. All that he could say was : “ Only I know that the contractor cut into his yard. That showed as an open trench.” This, in our judgment, was scarcely sufficient to warrant a disposition of the legal question upon the assumption that the defendants had actually made connections with the sewer, and were using it. We think, therefore, there is a valid defense under the evidence to this portion of the claim. This, however, will not necessitate a retrial of the case; but the error may be corrected by deducting the amount of this charge from the entire amount for which judgment was entered.

The judgment is modified and amended by deducting from the amount thereof, as of the date when it was entered, the sum of $13.83, this being the cost of the house connections, and interest thereon to the date of judgment and five per cent penalty; and as thus modified and amended the judgment is affirmed.