City of Chester v. Black

19 A. 276, 132 Pa. 568, 1890 Pa. LEXIS 854

• Court: Supreme Court of Pennsylvania
• Decided: February 24, 1890
• Docket: No. 105
• Status: Published

Opinion

Per Curiam :

The paving in question was done under authority of the act of May 24, 1887, P. L. 204, entitled “An Act dividing cities of this state into seven classes,” etc. This act was declared unconstitutional inAyars’ Appeal, 122 Pa. 266. The act of May 23, 1889, P. L. 272, authorizing assessments and re-assessments vfor the cost of local improvements already made or in process of completion, and providing for and regulating the collection of the same, was passed to meet this difficulty. Subsequent to its passage, viewers were appointed by the councils of the city of Chester, in accordance with the terms of said act, who proceeded to re-assess the cost of these improvements upon the property fronting upon the said street, by what is commonly known as the foot-front rule. We need, not discuss the rule itself, as there is nothing in the case stated to indicate that it was not applicable to this street, and to the property assessed. The only question remaining is the power of the legislature t,o authorize this re-assessment. Upon this point we are not in any doubt. Judge Dillos, in referring to it in § 814 of the third edition of his excellent work on Municipal Corporations, says :

“ The original assessment for a local improvement proving insufficient, the legislature may constitutionally authorize a reassessment, and make it operate upon the property benefited;” and cites a number of cases which sustain his text, among which are the following: Mills v. Charleton, 29 Wis. 400; Butler v. Toledo, 5 Ohio 225; Dean v. Borchsenius, 30 Wis. 236. State v. Newark, 34 N. J. L. 236; People v. Brooklyn, 71 N Y; 495.

It cannot be denied successfully that the legislature had the power to authorize this assessment originally, and that nothing but the unconstitutionality of the act of 1887 rendered the proceeding abortive. The principle has been repeatedly recognized in this state that, where the legislature has antecedent power to authorize a tax, it can cure, by a retroactive law, an irregularity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested : Grim v. School Disk, 57 Pa. 433. In the same lino are Commonwealth v. Marshall, 69 Pa. 328; Schenley v. Commonwealth, 36 Pa. 57; Magee v. Commonwealth, 46 Pa. 358; Kelly v. Pittsburgh, 85 Pa. 170; Hewitt’s App., 88 Pa. 55; Erie City v. Reed, 113 Pa. 468. The constitutionality of this kind of legislation is not open to objection. Of the numerous cases upon this subject, it is sufficient to refer to Huidekoper v. City of Meadville, 83 Pa. 156, where it was held that the act of 1870, which confers upon the city of Meadville the power of paving its streets, and collecting the cost from the owners of adjoining property by filing liens for paving, is not in violation of section 1, article JX. of the constitution, providing for a uniformity of taxation.

Judgment affirmed.