Borough v. Keeler

Opinion by Mr. Justice Fell, This action was to recover benefits accruing to the defendant’s property by the grading, curbing and paving of Duquesne [520] avenue. The defendant’s main contention at the trial was that a part of the avenue was widened after the passage of the ordinance for its grading, etc., and that the work done on the new part was without any authority, no new ordinance having been passed providing for it, "and that she was entitled to’ set off against the claim for paving and grading her damages resulting from the widening of the street. In support of this contention the defendant offered no proofs, and it was not sustained by the facts brought out by the witnesses for the plaintiff. The ordinance called for the paving of the avenue without stating its width,, and it did not appear to what width it had been paved.'' If the defendant was charged with any part of the cost of work not duly authorized, she failed to show it at the trial, and the court properly disregarded this ground of defense. ■ The widening was by ordinance passed nine months after the contract for grading had been awarded, and there were separate proceedings before another set of viewers assessing the cost thereof. It is clear that the defendant’s claim for damages because of the widening could not be considered in the proceeding before us. Nor was the failure to give the notice provided for by section 10 of the Act of May 16, 1891, P. L. 75, within ten days of the passage of the ordinance fatal to the plaintiff’s claim. The section mentioned provides that notice of the approval of the ordinance for the improving of a street shall be given within ten days by handbills posted along the line of the proposed improvement, setting forth the fact and date of the approval, that the petition for the improvement was signed by a majority in interest and number of owners of abutting properties, and any one in interest denying that it was so signed, fhay appeal to the court of common pleas for a determination of the question whether the improvement' was petitioned for by the requisite majority. This section, it was said in O ’ Mara’s Appeal, 194 Pa. 86, is a special provision for raising, before the expense of the improvement has been incurred, the objection that a majority of the property owners had not signed the petition, and the penalty for not raising it is estoppel. If no notice, or an inadequate notice is given, the owner is not estopped, and this ground of defense is open at the trial. The failure, however, to give notice does not invalidate the ordinance and all [521] proceedings under it. The power to contract for a street improvement is not given by this section. It regulates only the manner in which a particular question that affects the exercise of the power may be decided, and concludes parties in interest who do not raise the question in the manner prescribed. The section does not confer jurisdiction on the council, but regulates a method of procedure for the determination of a particular question. In Pittsburg v. Coursin, 74 Pa. 400, it was held that a, failure to comply with a provision of the' act of 1864, requiring notice to be given of assessments for grading or curbing streets in order that interested parties might have an opportunity to correct mistakes, did not invalidate the assessment but made it nonconclusive, and left it open for the property owner to show at the trial that mistakes had been made. In Erie City v. Willis, 26 Pa. Superior Ct. 459, section 35 of the Act of May 16, 1901, P. L. 224, was under consideration, and it was decided that the effect of a failure to give notice of the time and place of making the assessment, as provided for, was to make the assessment nonconclusive, but not to make it invalid. The judgment is affirmed.