Allegheny v. Stewart

Opinion by Henderson, J., We have passed the point at which it can be success [539] fully contended that the legislature has not the power to legalize a municipal improvement which it might previously have ordered. Where the abutting property has been benefited by a street improvement made under void authority the lots may be charged for their proportionate shares of benefit received by subsequent legislation. A retroactive enactment can cure a want of authority in levying the tax. The liability of the land to such a charge does not depend on the question of ownership. It is the benefit which the improvement confers on the land which creates the liability. The constitutionality of the Act of April 18, 1899, P. L. 57, under which the claim was filed in this case was determined in Marshall Avenue, 213 Pa. 516. Such remedial legislation has been sustained in many cases, among which are Com. v. Marshall, 69 Pa. 328; Hewitt’s Appeal, 88 Pa. 55; Harrisburg v. McCormick, 129 Pa. 213; Chester City v. Black, 132 Pa. 568; Donley v. Pittsburg, 147 Pa. 348; Olyphant Boro. v. Egreski, 29 Pa. Superior Ct. 116. The same doctrine is announced in Butler v. City of Toledo, 5 Ohio St. 225; Tallman v. City of Janesville, 17 Wis. 71, and State v. City of Newark, 34 N. J. L. 236. Local assessments for local benefits are imposed by the state in the exercise of the power of taxation and this tax may be imposed without regard to its effect on private interests. It is said that Mrs. Stewart bought the land free from any lien or claim of the city growing out of the grading and paving of Perrysville avenue because that improvement was made without legal authority and as the land was not subject to a lien in her hands the appellant took it free from liability, but this does not answer the argument of the appellee that the land was liable to be charged with its portion of the benefits growing out of the change in the condition of the street. When it is decided that retroactive legislation is valid which charges property with benefits conferred under void legislation no reason exists why the property actually benefited should not be charged with its share of such benefit without regard to the ownership of the property [540] at the time the charge is fixed. In the appellant’s case it cannot be said that he was without notice at the time he acquired title, for the deed to him is dated April 26, 1902, and the report of viewers was filed in November, 1900. He and his predecessor in title are presumed to have had knowledge that the property about which they were dealing abutted on an avenue on which the city had recently made extensive and costly improvements and they are also presumed to have known that the-property was liable to be charged with its proportion of that expense and that that might be done by subsequent as well as by antecedent legislation. The property received the benefit and it is reasonable that it should bear its share of the cost. There was no such lapse of time between the completion of the work and the enactment of the curative statute as should have moved the court to hold that the period was unreasonably long. On any theory of the presumption of payment or a statute of limitations or the continuance of a lien the intervening period was not unreasonable. The well-considered opinion of the learned judge of the court below renders an extended discussion of the question unnecessary. The judgment is affirmed.