Hershberger v. City of Pittsburgh

Mr. Justice Cuabk delivered the opinion of the court, Feb-, ruary 7th, 1887. This is a scire facias upon a municipal lien, entered in the. Court of Common Pleas, No. 2, of Allegheny county, upon an assessment for benefits arising from the grading of "Carson street in the city of. Pittsburgh. The improvements were made under the Act known as the ■“ Penn Avenue Act,” but the assessment of the damages sustained and the benefits85 accrued from the grading of the streets • was made under the special Act of_6_th January 1864.(P. L. 1131), and pursuant to an or diñan ce -oF~29th March, 1875. Portions only of the Tucwd "offered in evidence are printed, but from'the undisputed statements of counsel found in the paper books it appears, that appeals were, taken from the report of the viewers Jjy those sustaining damages, to the Court of Quarter Sessions,..and, jiu'jytilals were had in several cases in the Common Pleas. These trials largely increased the amount of the damages to be assessed upon property supposed to be benefited by the improvement, and on the 10th December, 1881, the Court of Quarter Sessions ,referred the report, back to the board of ■viewers, with directions to assess upon the properties benefited, if possible, the excess of damages awarded in the several cases, above the amount found by the report, and in case they should fail to find benefits to such an amount, then against the city of Pittsburgh. The viewers thereupon extended their assessments and included the property of the defendants. The viewers, having returned their report, exceptions were ■filed by several parties, and such proceedings were subsequently had thereon, that on 3d March, 1883, it was ordered and adjudged by the court, that the report be set aside as to all the exceptants, “and to all persons and parties” who had accepted what is called the “ Compromise Ordinance,” and the report was referred back to the viewers, to assess upon the' city of Pittsburgh the amount of benefits which had been assessed against them; the report was confirmed absolutely however as to all other persons. As to the nature of the compromise Ordinance we are not informed, but the appellant ■ alleges that he was not within its provisions. jLt the trial thedefendant made .forma.L offers to prove, that lie jiad no notice whatever of the proceedings before the board of viewers,” or 'of the proceedings in the Court of Quarter Sessions, and upon, that ground contended""that he was not concluded by the return of either tribunal; and further,, by .way of defence offered to show that the grading, for which the damages were assessed, was done under an Ordinance, expressly for the "grading, paving and curbing of Carson street, from the end of the Monongahela bridge to Chestnut street, &c., &c., whereas the same was in.fact not done on Carson street, but in the construction of a roadway upon a strip of land some distance from the well-known location of Carson street, and of an embankment for an approach to the Monon.gaheia bridge, which last was for the general public benefit, and not to the local advantage of property holders along the route of the streets covered by the ordinance. J The seventh section of the Act of 1864, which prescribes [86] the duties of the viewers provides, that they shall conform to the duties of viewers appointed in the opening of new streets, as prescribed in the third section of the same Act, excepting that where the viewers are appointed after the work is commenced, they need not give the five days’ notice by hand bills, &c.; they are required to appoint/a convenient time__an¿ place and' give notice thereof to all parties, &c., when . they "wilUhear their allegations and evidence on the subject, &e., &e. This provision for previous noticé of the meeting of the" board of viewers, to hear the proofs and allegations of the parties, in the absence of any other, would, we think, be of a mandatory nature; the. giving of the notice is a preliminary requisite to the making of the assessment. It is assumed that notice to and hearing of the parties is in some sense essential to"the making of a just assessment; the giving of the notice would therefore be of the essence of the thing required. This provision of the statute was intended, we think, to impose a limitation upon the jurisdiction and power of the viewers. The general rule is thus stated in Bladen v. Phila., 10 P. F. S., 466: — “ 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.” Thus in the seventh section of the same Act, the recording regulator is required to give notice, by publication for ten days in two daily papers, of assessments made by him for grading, paving and macadamizing, but as this plainly relates to the manner in which he, as a public officer, shall exercise a jurisdiction already vested in him, it was held to be directory: Pittsburgh v. Coursin, 24 P. F. S., 400. 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. But if the provision in question were directory only, the defendant was entitled to the notice which the law directed, and whilst without that the assessment would not be wholly invalid, he would certainly not be concluded by it, he might set up any valid defence upon the scire facias: Pittsburgh v. Coursin, supra. By the first section of the Act, March 14th, 1872, however, it is 'provided, that “no assessment for the opening, widening, grading, paving and curbing any street, lane or alley, or for the construction of any sewer or sidewalk in the city of Pittsburgh, heretofore made, or which may hereafter be made, shall be defeated for want of any notice required by the several Acts of Assembly and ordinances relating thereto, or for [87] any other informality or irregularities in said proceedings; provided that this Act shall not be construed to prevent any defence showing want of authority in said city or its officers to do said work, or any other matter or thing affecting the merits of the claim; and in any case in which notice has not been given as required by law, said city shall not be authorized to collect any interest or cost which may have accrued before the owner shall have received actual notice of said proceedings.” The purpose of this provision doubtless was to sweep away mere technical and frivolous objections to the payment of just assessments, and to facilitate the collection of claims in relief of the city; .but the. Act, as we have seen, expressly excepts out of its provisions the right to set up any defence, showing want of authority in the city or its officers to do the work, or any other matter or thing, affecting the merits of the claim, and this as we understand the case now under consideration, was the precise character of defence which the defendants' proposed, to make. If Hershberger had notice, however, as directed by law, his objection to the assessment against him/ should have been made before the viewers, or in the Quarter;' Sessions, and not on the scire facias: Hutchinson v. Pittsburgh, 22 P. F. S., 320. Upon the face of the proceedings, in view of the provisions of the Act 1872, as to notice, the court would appear to have had jurisdiction of the subject matter; applying the maxim omnia prcesumviitur rite esse acta, it would be presumed prima facie, we think, that the provisions of the law had been substantially followed; in order, therefore, that the defendant might avail himself of a defence upon the merits, it_was undoubtedly. competent for him to show want of notice. Do the facts set forth in the several offers or in any of them constitute a meritorious defence? It is alleged in the offer that at the time the proceedings were instituted, Carson street was a well known and well defined street, and that although the Ordinance was for the grading, paving and curbing of Carson street, the improvement with which the defendant is charged, was not made within the limits of that street, but upon other ground outside those limits. It must be conceded that a city cannot change the lines of or straighten a street excepting in the way prescribed by law; that an Ordinance, to grade, pave and curb a street, gives no authority to change the established lines, and that a city can create a valid municipal lien for improving a street, only when the improvement is made in pursuance of law: West Pennsylvania Railroad Company v. City of Allegheny, 11 Norris, 100. The defendant can be made subject only to a legal obligation when the power. [88] eonferreu on toe municipal authorities has been legally exercised : Fell v. Phila., 31 P. F. S., 75. Nor do we think that the seventh section of the Act of 20th March, 1873, (P. L., 327,) can be construed to validate such an assessment. The l^gislaturejcertainly^never intended that Act to conclude parties, who never had any notice of the proceedings against them, and never had their day in court'; it was intended, of course, that those only should be concluded who had the notice required by law, were made parties to the proceedings, and thus had an opportunity for vindicating their rights. If the grading was not done, within the limits of Carson street, pursiiant to the order of councils, but in the opening of a roadway or other ground outside of those limits, the city had no authority to levy the assessments. If the defendant had no notice, he had no opportunity to take defence before the viewers or in court; in such case the confirmation of the report of the viewers amounts to nothing as respects the defendant, he may make his defence on the scire facias: Wilson v. City of Allegheny, 29 P. F. S., 272; Breed v. City of Allegheny, 4 Norris, 214. The judgment is reversed, and a venire facias de novo awarded.