Wistar v. City of Philadelphia

Mr. Justice Clark delivered the opinion of the court, February 15th, 1886. This is a scire facias upon a municipal claim, filed by the city of Philadelphia, to the use of Joseph Johnson et al., against all that certain lot of ground in said citj;, whereon the building, No. 1009 Market Street, is erected, and of which [609] Richard Wistar is owner, for work done and material furnished, in setting new cut granite curbstones in front of the same, pursuant to the directions of the Highway Department, under authority of the ordinance of councils approved 31st December, 1871. A case was stated, in the nature of a special verdict, for the opinion of the court, from which we learn that, by the ordinance referred to, the sum of $30,000 was appropriated for paving Market Street from Tenth to Juniper. Market Street, in front of defendant’s premises, was then, and for many years had been, a highway of the city of Philadelphia, paved- with cobble stones in accordance with the manner in which most of the streets of the city were and are paved, and the sidewalk in front of defendant’s premises was supported by a curbstone, well and properly set, at defendant’s expense, on the proper line, in accordance with the style in common use, and was in good order and repair. A contract was entered into between the city of Philadelphia and the claimants, Johnson, Holgate and Horter, for the paving of the cartway of Market Street with Belgian blocks, and said pavement was duly laid. The defendant having neglected to comply with notice given to replace his curb with a new cut granite curb, the Highway Department ordered and directed the claimants to set such curb, which was accordingly done by them, and for the price or charge thereof this claim was filed. The curb is placed at the outer edge of the sidewalk, and serves to hold the pavement in place; it is therefore on the line of the sidewalk and of the cartway. From the facts admitted it appears, however, that the re-curbing, under the ordinance, was required, not as a repair or re-paving of the sidewalk, but as incident to the repairing of the cartway. The property owner, Mr. Wistar, was required by this ordinance, by reason of the re-paving of the street by the city, to take up a curbstone which he had previously set, and with which no fault could be found, and to substitute for it a more costly one of a particular kind, in order to add to the appearance, or to the efficiency perhaps, of the pavement which the city had seen proper to put upon the cartway; and for his default in so doing the citj'- seeks to charge him with the cost. In Hammitt v. Philadelphia, 15 P. F. S., 146 ; Washington Avenue, 19 P. F. S., 364, and other cases, it has been held that the repairing of the streets of a city, being for the general good, is the duty of the municipality, and that the expenses cannot be provided by local assessment. This doctrine has recently been greatly emphasized in the case of the appeal of the Protestant Orphans’ Asylum, 43 Leg. Int., 59, where it was held that an Act of Assembly allowing this species of local taxation is unconstitutional. [610] Whether the change from cobble stones to Belgian block necessitated the setting of a curbstone different in any respect from that in ordinary use does not appear. We presume, however, this provision of the ordinance affects merely the completeness and appearance of the work. But, as it is clear that the cut granite curb is incident merely to the repair of the roadway and not of the sidewalk, the expense cannot be provided by local assessment. This case is in all respects similar in principle to Wistar v. Philadelphia, 30 P. F. S., 505. In that case the city chose to change the alignment of the curb on Broad Street, between Race and Vine, reducing the width of the roadway and increasing the width of the sidewalk from eighteen to twenty-eight feet, and, although the property owner had recently paid for a good pavement, the condition of which was not complained of, he was required to set a new and costly curb on the new line. Upon his refusal to comply with the ordinance, the city set the curb and filed a.lien, as in this case. Chief Justice Agnew, delivering the opinion of the court, says: “ If, while the pavement is good and stands in no need of repair, the city may tear it up, relay and charge the owner again with one excessively costly, it would be exaction, not taxation. Of course the city may change its plans of improvement, and experiment to suit the views of those in power, and, if it be unwise, the corrective lies in the popular vote to remove those guilty of such folly and lavish expenditure. But under the 40th section (Act 2d February, 1854,) no such changes and experiments can be made at the expense of the lot owners, who have no power to correct the evil.” The case last cited, was followed by Philadelphia v. Wistar, 11 Norris, 404, which is to the same effect. In the case at bar the alignment of the curb was not changed, the defendant was simply required to lift the curb then in place, and set another and a different kind in the same place; and if the city cannot require the re-setting of the curb when the curb line has been changed and the footway widened, it is difficult to see how the power can be exercised when the line is unchanged. When the city may see proper to require a still different curb, to take the place of the cut granite, must depend of course, upon the judgment or caprice of the city councils, and it seems reasonable and just, if such a requirement shall be made when no repairs are needed, that the city should pay the price. If the law was correctly stated in Wistar v. Philadelphia, supra, this lien cannot be sustained, and we see no reason why the rulings in that case should not be adhered to. Judgment re versed.