Wistar v. Philadelphia

1. Paving the footway and curbing had been done by a property owner on Broad street, Philadelphia, upon the requirement of the authorities; about four years afterwards, the roadway was narrowed by councils, the footway widened, and he required to put up a new and costly curb ; having neglected this the city did the work and filed a claim against his property : Held, that the foregoing facts, and that the streets, &c., were in good condition and required no repair, were a defence to the scire facias on the claim. 2. A power to pave conferred by Acts of Assembly implies a power to repair and repave when the condition of the streets requires it; of this the eity authorities may primfl, facie judge. 3. A power conferred by the legislature to take up, alter and relay pavements and curbs at the pleasure of a municipal corporation and at the expense of the property owners, who had recently paid for a good pavement, is in derogation of the right of private property as laying a special tax on a small class. 4. The 40th section of Act of February 2d 1854 (Consolidation Act), does not intend to confer the power on the city to make such improvement, except at the expense of the city. 5. The foundation of the power to tax specially, is the benefit the object of the tax confers on the owner of the property. 6. Paving at the expense of the adjoining owner means the paving that is customary. 7. Acts of February 2d 1854, sect. 40, and April 6th 1838, sect. 3, examined. 8. Philadelphia v. Hoxie, 2 Wright 339; Philadelphia v. Tryon, 11 Casey 402; Heed v. Erie, 29 P. F. Smith 346, remarked on.

Error to the District Court of Philadelphia: Of January Term 1875, No. 91. This was a scire facias sur mechanics’ lien, issued September 12th 1874, by the city of Philadelphia, to the use of Joseph Johnson, James Holgate and Lafayette Horter, against Richard Wistar. The claim was filed February 10th 1874, “ against all that certain lot on the east side of Broad street, at the distance of 263 feet north from Race street, containing in front on Broad street 121-| feet, * * * for work done and materials furnished on Broad street in front of said lot, and duly assessed and charged as follows:— “1873, August 30th. For 121| linear feet of curbstone, @ $1.85, $224.77 For measuring charge, 2.42 5 per centum imposed by Act of March 23d 1866, 11.35 $238.54 “ Said work having been done pursuant to direction and order-of the highway department, under authority of ‘ an ordinance for the improvement of Broad street, south of Poplar street,’ approved December 31st 1872, after the curb line was adjusted in accordance therewith, and after a contract for paving the cartway of Broad street in front of the above described ground had been made, and the owner of the above described ground had been notified to cause the curb in front of the same to be set with cut granite curbstones, and had neglected and refused to set curb as aforesaid for more than thirty days after said notice, and after said contract was entered into for paving the cartway.” * * * The defendant filed an affidavit of defence averring:— “ He is, and has for some years past been, one of the owners of the premises on Broad street, against which said claim is filed. His brothei’, W. Lewis Wistar, is co-owner with him. After they became such owners, and not more than about four years ago, the sidewalk in front of said property was newly paved with bricks, supported by curbstones which were then reset in the manner required by the Acts of Assembly and ordinances then existing, and at their expense under notice from the highway department requiring that said work should be done. Some time prior to December 1872, the roadway of Broad street, north of Poplar street, having been narrowed, the sidewalks were widened to twenty-eight feet on each side, the owners being allowed the privilege of enclosing eight feet as a garden, with open work of iron or stone.” The affidavit referred to set out the following ordinances and Acts of Assembly:— On the 31st of that month an ordinance was passed by the councils, the first section of which required the department of surveys to lay out and adjust the curb line on both sides of Broad street from Poplar street southward, so as to correspond with present curb lines on Broad street north of Poplar street, and so that the width of roadway south of Poplar street should be the same as north of that street, and no contract for paving should be made for any greater width than the width of the roadway so adjusted. “ Sect. 2. When any contract shall be made as aforesaid, the owners of ground fronting upon said street shall, within thirty days after the curb line upon said street shall have been laid out and adjusted as aforesaid, cause the curb in front of their several properties to be reset with cut granite curbstones, which shall not be less than eight inches in thickness, two feet in depth, and each stone not less than nine feet in length, and also to pave or repave the sidewalks in front of their properties with well laid and solid pavement to the line of the said curb, and in case any such owner shall neglect or refuse so to curb and pave his footway, the same proceedings shall be had as are now authorized in the case of owners of lots neglecting to curb and pave their footways.” Sect. 4. Repealed all ordinances inconsistent with this ordinance so far as related to the curbing, grading and paving of the foot-ways and roadway of Broad street, south of Poplar street. “ On the 28th of April 1873, an Act of Assembly was passed, viz :— “ ‘ That the Select and Common Councils of the city of Philadelphia be and they are hereby authorized and empowered to alter and regulate the curb lines and heights, and determine and make uniform the widths of the footways of the streets within the limits of the said city.” The following resolution of councils was passed May 19th 1873. “ That the department of surveys be authorized and is hereby directed to have prepared plans in duplicate of Broad street, between Poplar street and League Island, fixing the width of footways at twenty-two feet, and adjusting the grades to conform therewith.” After the passage of this ordinance, but prior to July 7th 1873, a plan for the revision of the curb line of Broad street, from Vine to South street, was prepared by the board of surveys, and notice was given by the city solicitor by handbills and advertisements that the board of surveys had fixed July 7th 1873, to hear any objections. * * * Said plan was subsequently approved by the said board, but no further action in respect thereto was taken .by the councils of the city, nor was any further ordinance or resolution passed by said councils in reference to the alteration or regulation of the curb lines and heights on said street, or the determination and making uniform of the widths of the footways thereon. The said plan of revision of said board did not prescribe curb lines uniform with other parts of said street, but while north of Poplar street the sidewalk was twenty-eight feet wide, and south of Vine street eighteen feet wide, said plan , made by said board fixed a width for the sidewalk between Race and Vine of twenty-two feet. Prior to said 7 th day of July 1873, notices had been given to the deponent and sundry others of the owners of property on said street, requiring them “ to have granite curbstones set and the footway paved opposite (their) property * * * within thirty days, in conformity with the ordinance of December 31st 1872,” but after the said action of said board in respect to said plan, on or subsequent to July 7th 1873, no further notice having been given to. property owners, the commissioner of highways proceeded under the alleged authority of the act and ordinances, the curbs already set in conformity with law were removed, and a new and most expensive cut granite curb set on the new line indicated by said plan of revision made by the board of surveys, and the claim for which this suit is brought is for said new curb, the cost of which is more than three times that of the old curb, and for the setting of the same without any allowance for the old curb. The affidavit further averred that the ordinances cited and subsequent ordinances were part of a system by which it was intended to make Broad street a great public thoroughfare, to ornament, &c., so as to make it attractive “ without any pretence that there were any defects in the footway which required repairs or that it was not sufficient for the public travel or that it did not comply with the laws in force when it was laid,” and without any allegation that the curbstones already set were not proper and sufficient for the purpose or that the repair or resetting of the curbstones was needed. The defendant was advised and believed that the above-mentioned act and ordinances did not give authority to the city to set new and costly cut granite curbstone and charge the defendant with the cost. The defendant afterwards filed a supplemental affidavit of defence, which averred, amongst other things, that the curbstones previously set “ were of proper and sufficient width, in every respect proper and sufficiently well laid ; and set in the style and manner universally adopted for years past in this city, and’ so as to assimilate that part of the city in this respect with other parts of the city, and comply with all laws and ordinances prior to said date; that said sidewalk or footway were in good order and condition, needing no repair or improvement, or any relaying, resetting, alteration or substitution whatever; that no notice to repair said sidewalk, or reset said curb, or any notice other than (that mentioned in the) original affidavit, was ever given to this deponent or his said brother. * * * That at or about the date in said claim mentioned, without taking up or distributing said pavement so laid, or said curbstone so reset, the costly cut granite curbstone for which this claim is filed, was set outside of 'said old or existing curbstone, at the distance of twenty-eight feet from the house line, leaving an unpaved surface between said two curbstones, both of which now are and remain on the ground, set’in the usual way; that no such new and costly curbstone, or any new pavement for the sidewalk or any widening of the said sidewalk was necessary for public comfort and convenience, or to bring or keep that part of Broad street in the condition of other streets for the ordinary benefit, advantage, use, business and travel of those living upon it, or of the public generally ; but that said-sidewalk was widened, and said costly cut granite pavement laid, to make or fit said street for a great, improved, ornamental public drive.” * * * The ordinance of December 31st 1872, relating to the improvement of Broad street, provided, amongst other things, that “ Within thirty days after the curb line upon said street shall have been laid out and adjusted as aforesaid, the owners shall cause the curb in front of their several properties to be reset with cut granite curbstone, which shall not be less than eight inches in thickness, two feet in depth, and each stone not less than nine feet in length; also, to pave or repave the sidewalk in front of their properties with well-laid and solid pavements to the line of said curb. And in case any such owner shall neglect or refuse so to curb and pave his or her footway, the same proceedings shall he had as are now authorized in case of owners of lots neglecting to curb and pave their footways.” The 3d section of the Act of April 16th 1838, Pamph. L. 626, enacts:— “That the councils of Philadelphia may, from time to time, establish such rules as they may deem expedient for the better regulation of porches, benches, door-steps, railings, bulk-windows * * * or other thing projecting over the sidewalks or other portion of any streets, lanes or alleys ; and in relation to boxes, &c., placed in or upon any of the said footways, &c., and for the better protection and regulation of markets, &c., and at the expense of the owner of the property adjoining, to regulate, grade, pave and repave, curb and recurb the said footways, * * * and the same enforce by suitable penalties * * * recoverable before any alderman,” &c. The Act of February 2d 1854 (Consolidation Act), section 40, Pamph. L. 43, enacts:— “ That it may be prescribed by ordinance that paving of streets, except at the intersection thereof and of footways, and laying of water-pipes within the limits of the city, shall be done at the expense of the owners of ground in front whereof such work shall be done, and liens may be filed by said 'city for the same as is now practised and allowed by law.” The District Court (Hare, P. J., and Thayer, J., dissenting) entered judgment against the defendant for want of a sufficient affidavit of defence. The defendant sued out a writ of error and assigned for error, the entering judgment against him for ay ant of a sufficient affidavit of defence.