Borough of Mauch Chunk v. Shortz

61 Pa. 399, 1869 Pa. LEXIS 186

Opinion

The opinion of the court was delivered, March 25th 1869, by

Thompson, C. J.

It hardly needs authority to sustain the position taken by the counsel for the defendant in error, that liens in the nature of mechanics’ liens, cannot lawfully be filed by a municipal corporation to enforce the payment of municipal charges, unless authorized by statute. But if it be thought to be needed by anybody, The City of Philadelphia v. Greble, 2 Wright 339, will suffice for that purpose.

The difficulty in this case is the want of authority to file a lien for this kind of work. It is called a drain, but is more properly a sewer. The borough had the right to lay out and ordain the construction of common sewers or drains, under the Act of 1851, but whether at the expense of the property owners fronting it, we are not asked to say. Our question is, whether the borough could file a lien against the defendant where property fronted on the drain or sewer in question for his pro rata of the expense. That there was no authority for this we are quite certain. The matters which are the subjects of liens by the borough against the owners of adjoining ground are enumerated in Art. 5 of § 2 of the Act of 1851, the General Borough Act. They are for “ grading, curbing, paving and guttering of the side or foot walks.” The work in question is not within any of the works enumerated, and consequently not the subject of the lien. “ JSxpressio unius, est exclusio alterius.” The judgment of the court on the case stated, being in our opinion right, it is affirmed.