Pittsburg v. Cluley

The opinion of the court was delivered, March 2d 1874, by Williams, J. — This was a scire facias on a municipal claim to recover the amount assessed on the defendant’s property for the opening of Devillier street. The assessment was made by viewers appointed by the councils of the city of Pittsburg, under the Act of 6th January 1864 (Pamph. L. 1131), which provides that before any street is opened for public use, the councils shall appoint three discreet and disinterested freeholders of the city, as viewers, to view the premises, appraise the damages and make the assessments. The report of the viewers was approved by the councils and confirmed by the Court of Quarter Sessions. The jury found that one of the viewers was not a freeholder, and the court below held that it was a good defence to the action, and entered judgment for the defendant. If the appointment of the viewers was not a nullity, they were justified in acting under it, and the mistake in their appointment was cured by the approval and confirmation of their report. In appointing the viewers the councils were acting within the scope of their authority, and if so, their appointment was not a nullity, though it may have been erroneously made. There is a plain distinction between an act done without authority and an act erroneously done under authority. In the one case it is void for want of authority; in the other it is voidable for its improper exercise, but not absolutely void. If the viewers were sued for trespass in entering upon the road taken for the street, can there be a doubt that their appointment would be a sufficient warrant to justify their entry for the purpose of appraising the damages and making the assessment ? If it would, they were not trespassers in acting under it, nor were their acts void for want of authority. If, then, the assessment was not void, it can no more be collaterally questioned or impeached, on the ground that one of the viewers was not a freeholder, than a judgment on a verdict because one of the jurors by whom it was found was not qualified to serve. The confirmation of the report has all the legal effects and incidents of a judgment or a decree of a court of competent jurisdiction. One of which is that it must be treated as valid and binding until reversed or set aside, and cannot be assailed except for fraud or collusion. It is not pretended that any injustice was done by the assessment. The defendant had notice of the proceedings and did not appeal to the councils or apply to the Court of Quarter Sessions to have the assessment set aside or abated on the ground that it was inequitable and unjust. It is not alleged that [265] his property is not benefited to the 'extent of the amount assessed upon it, or that the assessment is in any respect unequal or excessive. His only complaint is that one of the viewers by whom it was made was not a freeholder. This objection would have, availed if it had been made in time. .But it comes too late and cannot be set up here. The confirmation of ¡¡the report must be regarded as conclusive of the assessment, and the District Court should therefore have entered judgment for the plaintiff on the verdict.. Judgment reversed, and judgment for the plaintiff on the verdict for the amount found by the jury, with interest from the date of finding.