City of Erie v. Carey

Opinion by Rice, P. J., In the case of Erie v. Griswold, 5 Pa. Superior Ct. 182, 184 Pa. 435, it appeared that the paving ordinance was approved, the contract let and the paving actually done before the ordinance of September 16, 1895, repealing the “ rebate ordinance ” of April 1,1880, was adopted. It appears in the present case that the ordinance to pave East Tenth street, between Parade street and East avenue, and the repealing ordinance above referred to, were approved on the same day. It should be noticed also that in the Griswold case the street was paved upon the petition of the property owners, whilst in this case the property owners simply petitioned “ for a brick pavement if said street be paved.” All these facts are more fully set forth in the case stated. The learned judge of the court below held that, notwithstanding this difference of fact, the principle upon which the Griswold case was ruled is applicable and controlling in the present case and, therefore, abutters on the line of the improvement in question are entitled to a proportionate abatement from their general city taxes, as provided in the ordinance of 1880. He based this conclusion on the ground that at the time of the approval of the paving ordinance in question, “ the ordinance of April 1, 1880, providing for the abatement of taxes in all cases of paving at owners’ expense, had not been repealed, inasmuch as the repealing ordinance was by its terms not to take effect till January 1,1896.” In considering this question it will be well to keep prominently in view the terms of what is called the repealing ordinance. It is entitled, “ an ordinance abolishing abatement of taxes allowed on lots fronting on paved streets,” and it reads as follows: “ Section 1. That from and after the first Monday in January, A. D. 1896, no abatement of city taxes shall be allowed on any lot or lots by reason of the fact that said lot or lots front on any street which has been or may hereafter be paved at the expense of the owners of property abutting thereon. Section 2. That any ordinance or part thereof conflicting herewith be and the same is hereby repealed.” If the municipal authorities had intended their action to be wholly prospective in its operation, i. e., to affect only the paving of streets ordained after the date named, a simple repeal of the ordinance of 1880, with the proviso that the repeal should not take effect until the first Monday of January, 1896, would [591] have been sufficient. Had they expressed their will in that form the general doctrine that a statute or an ordinance passed to take effect at a future date must be understood as speaking from the time it goes into operation, and not from the time of its passage, would seem to control. And in that case it might well be argued that the abatement ordinance of 1880 was as much a part of the paving ordinance under consideration as it was of the paving ordinance construed in the Griswold case. But it is impossible for us to construe the ordinance above quoted as a simple repeal of the abatement ordinance with a proviso that the repeal should not take effect until the date named. On the contrary, we have been driven to the conclusion that the intention of the municipal authorities was to end the allowance of abatements on the first Monday of January, 1896, to compel the payment of general city taxes levied after that date in full, without exoneration or abatement, and this too whether the claim therefor arose out of the payment of “ frontage assessment imposed under ” a paving ordinance passed before the date of the repealing ordinance.or a paving ordinance passed after that date. The only way to avoid this conclusion is to strike out the words “ has been or ” as merely redundant, and in place of the word “ hereafter ” read “ thereafter.” This would not be th'e construction of an ambiguous ordinance, but the judicial amendment of a plain and unambiguous one. We held, it is true, in the Griswold case that the ordinance could not affect the vested rights of abutters under a prior paving ordinance, but this does not weaken the argument drawn from the manifest intent of councils to make the ordinance'apply to every case of paving at the property owners’ expense, whether 'past or future, and to shut out every possible claim for abatement of the general city taxes of any subsequent year. So far as that intent was lawful it must be carried out, and if we are right in the foregoing conclusions the two ordinances of September 16, 1895, must be construed together. They are not repugnant, but harmonious in all their terms. There is no occasion for resorting to any arbitrary presumption that the paving ordinance was passed at one moment in the day, and the other ordinance at a later moment, in order to carry out any supposed intent of councils or to prevent injustice. In brief, the intent of councils that the ordinance of 1880 should not [592] apply to, or be an implied part of, the paving ordinance in question is clear, and it does not appear that, in so ordaining, any vested right of the defendant was impaired. It follows that he was not entitled to an abatement of his city taxes for the year 1897. The assignment of error is sustained, the judgment is reversed, and it is now ordered that judgment be entered for the plaintiff for the sum of $41.42.