Hand v. Fellows

Opinion by Mr. Justice Williams, The facts in this case are not in controversy. They present an important legal question upon which the courts in which [460] it has arisen are not in accord, and the practical importance of which to cities of the third class makes an early decision upon it desirable. It appears that a portion of Clay avenue, in the city of Scranton, has been recently paved under an ordinance passed on August 18,1891, which charged the expense of paving on the real estate fronting on the avenue by the “ foot-front rule ” in accordance with the act of 1889, l’elating to cities of the third class. Some of the lot owners thus charged deny the power of the city to make use of the foot-front rule, alleging that the act of May 16,1891, repeals so much of the act of 1889 by implication, and substitutes an assessment according to benefits in lieu of an assessment according to frontage. They according^ filed the bill in this case seeking to enjoin the collection of the assessments. The court below held the position well taken, and awarded the injunction prayed for. We have thus presented by this appeal the single question of the effect of the act of 1891 on that of 1889. Let us first see what the law upon this subject of paving was in cities of the third class under the act of 1889. That act was passed in order to provide a comprehensive code for the government of cities of the third class and for the regulation of municipal affairs in them. See. 10 of art. Y provides that any street, lane or alley may be graded, paved or macadamized, and the expense of the improvement provided for as follows: If the improvement consists in grading only, the expense may be charged in whole or in part on the city, or on the property benefited according to benefits. If the improvement includes paving, the expense may be charged in whole or in part on the city, or on real estate bounding on the street paved, “ in proportion to the number of feet the same fronts on the street, lane or alley to be improved.” Lot owners could be reached, therefore, according to the benefit rule if the work was grading only, and according to the foot-front rule if the improvement included paving; but it is well settled that the foot-front rule is not applicable to, and will not be enforced in, the more rural parts of the territory embraced within the city limits. Paving could only be done at the costs of the owners of property in cities of the third class, therefore, within the built-up city, where the foot-front rule could be enforced. In all other [461] parts of the city, it could be done only at the expense of the treasury. The act of 1891 authorizes all cities to grade and pave their streets at the expense of the property benefited by the improvement. This reaches the rural as well as the built-up parts of the city. It includes in the same system all sorts of improvements, whether consisting of grading alone, or of paving or curbing. It is an affirmative act, containing no repealing section or clause, and can have no effect on the act of 1889, unless the system provided by it is so inconsistent with that previously existing as to make it impracticable for them to stand together. But we have already seen that, in respect to an improvement by grading only, both acts adopt the same basis of liability for the lot owner, viz.: the benefit accruing to his property by reason of the improvement. In the rural parts of the city, the act of 1891 provides a new, and the only mode for reaching the lot owners directly. There is no inconsistency between the two acts so far. Coming to the built-up parts of the city, the act of 1891 pi'ovides an additional mode for reaching the lot owners. Under its provisions they may be made liable according to benefits, while they were previously liable- only according to frontage. The new basis of liability is not imposed by law, nor is the city authorized to impose it, except upon a petition of a majority in number and interest of those to be affected by the improvement. It is not made the exclusive mode for reaching the lot owners, but an additional one. The alternative is for the lot owners to settle. According as they may prefer the new or the old basis of liability, they may frame their petition to councils; and councils may frame the ordinance under which the improvement is to bo made in accordance with the wish of those interested. The systems may well stand together, and be administered upon different streets or in different portions of the same city at the same time. If a street has an eve\i grade and is thickly built up the foot-front rule may be an entirely just one. If it is uneven, with some portions much better adapted to building, and therefore much more valuable than others, an assessment according to benefits will be fairer than one resting on frontage. It will be fair in all classes, as the character of the ground, the grade of the street, and any other consideration affecting the value of ad [462] joining property may always be considered in the adjustment of the benefits. Under this view of the effect of the act of 1891, it is not important that the petition, and some of the proceedings preliminary to the assessment of the property affected by the improvement, are in some particulars different from those prescribed by the act of 1889. It is enough that the proceedings in any given case conform to the requirements of the act under which it is desirable to proceed. If the persons interested desire the improvement to be made upon the basis of liability according to benefits, they will proceed under the act of 1891; but if they wish the fóot-front rule applied they will follow the line of procedure marked out by the act of 1889. In the case now before us the petition and preliminary proceedings were under the act of 1889. They appear to have been in all respects regular, and to justify the assessment of the cost of the improvement by the foot-front rule. As we hold that the provisions of the act under which the work has been doné and the assessments made are unrepealed, it follows that the injunction should not have been granted. It is now dissolved at the cost of the appellee.