Hutchinson v. Pittsburg

The opinion of the court was delivered, by Read, O. J. By the 6th section of the Act of 6th January 1864, the councils of Pittsburg are authorized whenever they may deem the same necessary to cause to be graded, regraded, paved, repaved, or macadamized any public street, lane or alley, or any parts thereof, and they are to levy and collect the cost of the same, from the owners of property bounding or abutting on the portions of the streets, lanes or alleys, thus improved, by an assessment of an equal sum per front foot of said properties; and section 7th provides, that when any grading shall have been done, the recording regulator, (now city engineer), is to make an assessment of the cost ^nd expense thereof, “ and to give notice by publication for ten days in two daily papers of said city, that the said assessment has been made, and may be seen at his office, and that the parties interested may have an opportunity of having any errors or mistakes corrected. After correcting any errors or mistakes that may have been discovered, he shall immediately hand over the said assessments, with a plan and description of each lot, the amount assessed thereon, and the name of the owner or owners, to the treasurer of said city.” By the 8th and 9th sections, the treasurer shall then give notice of the amount so assessed upon each property to the owner thereof, and if the same be not paid to him within thirty days from the time of said notice, it will be filed as a lien against said property, with interest, costs and fees, and if not paid within the thirty days, the treasurer shall hand over to the city solicitor (now city attorney), the assessment, with plan and description of each lot et cetera, as furnished to him as aforesaid, and the city (attorney) solicitor shall file a lien against each property for the amount of the assessment thereon remaining unpaid, with interest from the time notice for payment was given, and five per cent, additional as the solicitor’s (attorney’s) fee for collection. The ordinance under which the grading in these cases was done, was passed August 31st 1868, and is as follows : “ That the city engineer be, and he is hereby authorized and instructed, to advertise for proposals for the partial grading of Bluff street, from Miltenberger to Boyd streets, and to let the same in accordance with ordinances of councils providing therefor.” The city engineer having advertised for proposals, on the 31st of October 1868, contracted on behalf of the city with Patrick Bradley to do the grading at so much per cubic yard, and he entered upon his work under the supervision of the engineer. On a survey it was found all the property between Miltenberger and [325] Pride streets had been brought up to the grade established, and no grading was done east of Pride street, having been graded before. The grading and of course the assessment were confined to that part of Bluff street lying between Cooper and Pride streets. The assessment so made was regularly advertised, agreeably to the provisions of the 7th section, by the city engineer, who handed over the same to the city treasurer, who then gave the notice required by law, and handed over to the city attorney the said assessment, and the city attorney filed liens against the two properties of the defendant, and brought the two writs of scire facias which are now before us. The contract is between the city and the contractor; the contractor does not complain, and the city adopts and approves the action of its officers, and the defendant cannot take advantage of the non-grading of four squares which the city found to be unnecessary and inexpedient under the circumstances. Besides the authority was to grade, not to regrade. It was not an excess of authority, but a wise exercise of discretion in not grading the whole distance authorized, for reasons entirely satisfactory to the city. The same course of reasoning would apply to an authority to pave from one street to another street, where three squares at one end and one square at the other end were discovered to have been already paved. The portion of the street so improved lay between Cooper and Pride streets, and by the express terms of the Act of Assembly, all properties bounding or abutting on the same are to be assessed an equal sum per front foot of the same. But the defendant says he holds these lots by different conveyances, and the property was cut up into lots on a private plan of previous holders, and should have been so assessed. This plan was not among the city records, nor known to its officers. If there was anything in this objection, it should have been made to the city engineer, when he appeared before him in pursuance of the notice given to him. He knowing how the assessment was made, never pointed out the error or mistake now alleged, and permitted the city engineer to proceed with the assessment as made, and he is estopped to deny its correctness. It is claimed by the defendant that he should be allowed $427, paid Patrick Bradley on 24th September 1869, on account of this grading, which with interest due on the same amounts to $491.77. This* payment was entirely unknown to the city or its officers, or to any but the parties concerned in it, and, if a valid set-off, enables Bradley, on the 24th of September 1870, to commit a fraud on Munhall & Co., by assigning his interest and claim to and under this contract to them, without notice or knowledge on their part that the defendant had paid the said Bradley the amount due him on the 24th September 1869. It is clear if this payment is [326] a legal one, then the same might have been practised by all the other owners of property on Bluff street, between Cooper and Pride streets, and it would have left Messrs. Munhall & Co. nothing but a dry bone. But such is not the law. The treasurer receives all the assessments, either directly or through the city attorney, and is to pay the contractor from the moneys to be assessed and collected for the costs thereof, which in this case is for grading or filling for each cubic yard 70 cents: Schenley v. Commonwealth for the City of Allegheny, 12 Casey 29. The law and the practice in Pittsburg differs entirely from the city of Philadelphia, where as in Coxe v. City of Philadelphia, 11 Wright 11, the ordinance “ charged upon the properties in front of which the culvert passed, seventy-five cents for each lineal foot of the front of the said properties, the contractor to accept the sums so assessed and charged in part payment of his contract price, and to collect the same at his own cost; and the better to enable him so to do, to use the name of the city of Philadelphia, and employ all legal remedies or proceedings, whether of lien or otherwise, to which the said city may be competent,” and in contracts for paving, it is prescribed by the ordinance authorizing them that “ the condition of said contract shall be that the contractor shall collect the cost of said paving from the owners of property:” City of Philadelphia v. Scott, antea, p. 92. Upon the whole case as presented to us the judgment in each case is affirmed.