City of Erie v. Russell

Opinion by Mr. Justice McCollum, A judgment was entered in the court below for want of a sufficient affidavit of defence, and the only question on the record is whether the affidavit contains a valid answer to the claim. It appears that, on Nov. 11, 186.7, it was ordained by the select and common councils of the city of Erie, that a sewer should be constructed under Seventh street in said city “ from Peach to Sassafras streets,” and that the cost of constructing the same should “be assessed upon and collected from the. owners of real estate fronting'on said street, between the points aforesaid.” In pursuance of this ordinance, the sewer was constructed under a contract with and the supervision of the city, and, on its completion, the cost thereof was assessed upon the property abutting on the street, and was paid by the owners. In 1890, the city, under the act of May 23, 1889, “providing for the incorporation and government of cities of the third class,” ordained that the sewer should be reconstructed at the cost of the property owners, to be assessed upon the property “ by the frontage rule.” This act allows the city to construct and reconstruct sewers of all kinds, without petition therefor from the property owners, and provides, inter alia, that. “ the cost of lateral sewers shall be assessed upon the lots or lands along or through which such lateral sewers run, according to [386] the valuation of such lots or lands as aforesaid, or in proportion to benefits upon lots or lands benefited, or by an equal assessment by the foot front upon the lands along or through which such sewers run, as councils may determine.” In compliance with the provisions of the last mentioned ordinance, the sewer was reconstructed by the city, and the cost of the work was apportioned to the several properties abutting on the street. The sum or share chargeable to the appellant’s lot was two hundred and eighty-five dollars and thirty-six cents (1285.86), and a lien was filed for it, to enforce which this action was brought. This lot was charged with and paid its proportion of the cost of construction, and it is now claimed that the assessment of it by the foot front for the cost of reconstruction is invalid, because it is in violation of the principle laid down in Hammett v. Philadelphia, 65 Pa. 146, and enforced in the subsequent cases to which it is applicable. In answer to this claim, it is said that the principle established in Hammett’s case is limited in its operation to the repaving of a street originally paved at the expense of the owners of the property abutting thereon, and that sewers, in respect to the cost of their maintenance, are not on the footing of paved streets. A city must have proper sewerage and well paved streets; they are essential to its prosperity, and matters of public concern, and they are so recognized in the legislation which provides for them. The construction of a sewer or the paving of a street may be a local improvement, and as such properly chargeable to the property benefited by it. In regard to the taxation admissible to pay the cost of the original construction or paving, the street and' the sewer are in the same category. “ But when a street is once opened and paved, thus assimilated with the rest of the city and made part o£ it, all the particular benefits to the locality derived from the improvements have been received and enjoyed,” and the cost of repaving the street cannot be provided for by local assessments, but must be defrayed by genéral taxation : Hammett v. Philadelphia, supra. Why should a sewer, demanded and constructed by the city, and paid for by assessments, on the property fronting on the street under which it is laid, be maintained and reconstructed on the order of the municipality at the expense of such property ? It was made, by the action of the city, a part of its system of sew [387] erage, which is as necessary for the health of its people as its paved streets are for their use. Its construction was at the expense of the abutting property, and properly so, in discharge of the obligation arising from the particular benefits conferred. It is now a constituent of the general system ordained by the city for the convenience and health of its inhabitants. Tin's / system confers benefits which are general; it is a public neces-1 sity, and the expense of maintaining it should be provided for ^ by general taxation. The reasoning which supports the rule ' established in relation to the repaving of streets applies with equal pertinency and force to the reconstruction of sewers. It follows that the affidavit which was adjudged insufficient, set forth a good defence to the claim, and the specifications of error are sustained. Judgment reversed, and procedendo awarded.