Paving, etc., of Wyoming Street

21 A. 74, 137 Pa. 494, 1891 Pa. LEXIS 898

• Court: Supreme Court of Pennsylvania
• Decided: January 5, 1891
• Docket: Nos. 140, 141, 151
• Status: Published

Opinions

Opinion,

Mr. Justice Williams:

These cases involve an important constitutional question. It is not necessary to enlarge upon such common-place propositions as that the constitution is the organic law of the commonwealth ; that it is framed by the people in order to establish a form of government for themselves, and define the limits within which its powers must be exercised; and that it is the duty of the courts to uphold its provisions, and to interpret them in such manner as to give them the effect that their framers evidently designed. If experience demonstrates the need of change, the power to make it and to determine its extent and character resides in the people. It does not reside in the legislature, nor in the courts, nor in both together.

Among the limitations put by the people upon the exercise of'legislative power are the following, from article III., § 7, of the constitution of 1874: “The legislature shall not pass any local or special laws .... regulating the affairs of counties, cities, townships . . . . ; authorizing the laying out, opening or maintaining roads, highways, streets or alleys . . . . ; creating offices, or prescribing the powers and duties of officers in counties, cities . . . . ; regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding or inquiry before courts .... or other tribunals.” There is no room for doubt about the meaning of these provisions. Whether they are all wise or not, they are all very plain, and they were intended to secure to every citizen of the state equal rights and privileges and a common method for asserting and enforcing them through the courts of law. The means by which this end is secured are general laws administered by state courts, which are brought within easy reach of every citizen by the establishment of small judicial districts. The constitution of 1874 recognizes and adopts the system of courts previously organized, including the courts of Common Pleas and of the Quarter Sessions of the Peace. The boundaries of their respective jurisdictions were clearly fixed and were well known. It is plain therefore that any change in the jurisdiction or practice of these courts must be made by general laws, operative, not in one county or city, but in all the counties and all the cities of the commonwealth.

Some confusion seems to exist, however, in regard to the definition of a general law, and a theory has been advanced in several recent cases, and has been contended for by the appellee in this case, that the division of the cities of the state into classes by the act of 1874, which was recognized as a necessary classification in Wheeler v. Philadephia, 77 Pa. 338, requires us to hold any law to be general which embraces all the cities of a given class, without regard to the subject to which it relates. This theory overlooks the objects and purposes of classification, which are very clearly set forth in the first section of the act which divides the-cities of the state into three classes. These are, to make provision for the municipal needs of cities which differ greatly in population. Differences in population make it necessary to provide different machinery for the administration of “ certain corporate powers,” and to make a difference in “ the number, character, powers, and duties of certain corporate officers, ” corresponding with the needs of the population to be provided for. An act of assembly that relates to a subject within the purposes of classification, as they are thus declared by law, is a general law, although it may be operative in a very small portion of the territory of the state, if it relates to all the cities of a given class. For example, an act relating to the lighting of streets in cities of the third, class would be a general law for the following reasons: (a) It relates to the exercise of “ corporate powers ; ” (b) it affects all the cities of a given class in the same manner; (e) it affects the inhabitants and property-owners in such cities, because of their residence and ownership therein, and the circumstances and needs that are peculiar to the class to which their city belongs. But a law that should provide that all applications made by guardians, administrators, and executors for leave to sell the real estate of a decedent for the payment of his debts, in cities of the third class, should be made, not in the court having jurisdiction of the petitioner’s accounts, but in the Court of Quarter Sessions, would be a local law, and therefore unconstitutional. It would be applicable to the same sub-divisions of territory as the law relating to the lighting of streets, but it would relate to the exercise of no corporate power residing in a city, nor to the duties of any municipal officer, nor to the needs or welfare of citizens of a city of the third class, as distinguished from other citizens of the commonwealth. On the other hand, it would affect the jurisdiction of the state courts, modify the duties of public officers whose functions are not local, but general, and touch the inhabitants of cities of the given class in the exercise and enjoyment of their rights as citizens of the state, not as dwellers in the municipality. The test therefore by which all laws may be tried is their effect. If they operate upon the exercise of some power or duty of a municipality of the given class, or re late to some subject within the purposes of classification thej are general, otherwise they are local: Weinman v. Railway Co., 118 Pa. 192; Ayars’ App., 122 Pa. 266; Ruan St., 132 Pa. 257. Laws transcending the constitutional limit have been held to be void in many cases, among which are Davis v. Clark, 106 Pa. 377; Scowden’s App., 96 Pa. 422; Commonwealth v. Patton, 88 Pa. 258; Weinman v. Railway Co., 118 Pa. 192.

The case, now before us, requires the application of this test to the act of June 14, 1887, relating to the improvement of streets in cities of the second class. Some of its provisions are both new and startling. The act provides that the city councils may direct the opening, grading, widening, or other improvement of any street, lane or alley, on the petition of one third in interest of the owners of property on such street, lane or alley; and after councils shall have given the order for such opening, grading, or widening, the fact that the petition was signed, as it purported to be, by one third of the property-owners, “ shall not be questioned in any proceeding had in accordance therewith.” No matter how grossly councils may have been imposed upon, or how decided may be the hostility of .three fourths or four fifths of the owners of property to be affected by the proposed improvement, the mouths of the great majority are closed. The right of petition is denied them. The right to expose the fraud from which they must suffer unless their complaint is heard is taken away, and they are delivered, bound hand and foot, to the tender mercies of the city’s contractor.

But the fourth section introduces another novelty. It provides for the appointment of a “ board of viewers ” by the Court of Common Pleas of Allegheny county, to which all claims for damages from the exercise of the right of eminent domain b}*- the city in opening, grading, or widening streets, lanes, and alleys, and from changes of grade or other improvement therein, must be referred. The members of this board hold office for three years, and are appointed, not at the instance of the party injured, or on the knowledge of the court, but solely on the motion of the city attorney, and when he chooses to ask it. They may be removed, but not at the instance of the property-owners. This must be done, on the “ address of the city councils.” Their compensation is fixed by the city councils. Their expenses are allowed and paid by the city councils. All claims for damages growing out of the opening, grading, and widening of streets, lanes, and alleys, must go to and be decided by this board. From their decision an appeal lies to the city councils, whose decision is “ final and conclusive ” unless appealed from within ten days. If an appeal is taken, the city attorney must be notified and furnished with a copy of all the objections and reasons on account of which the appeal is taken. Pending the appeal, if the party complaining is fortunate enough to secure one, the contractor is carefully provided for, for the act expressly provides that his work shall go on except on the premises of the appellant. No matter what question may be raised, neither the work nor the collection of assessments can be suspended except as to the particular appellant.

It is easy to see what the practical operation of the machinery thus provided might be. A contractor or any interested party might secure a name or names to a petition for the improvement of some street, lane, or alley, setting forth that the signers are one third in interest of the owners of property on such street, lane, or alley, and that the city in which such street is located is a city of the second class. Upon this petition, the city councils may direct the opening, widening, or other improvement asked for. The great majority of property-owners may know nothing of it till the improvement is directed, and then, because it has been directed, they cannot be heard to object. Judgment is entered against them without notice, and, because it has been entered, they cannot show that it is wrong, that the city has been imposed upon, and that the improvement is not wanted by one third or one quarter of the owners. The city enters under its right of eminent domain, and its contractor is let loose upon the property-holders. When their property is taken, the owners cannot come into court and ask an ascertainment of their damages, but must present their claims to the “ board of viewers.” The board makes its award and reports, not to the court that appointed them, but to the city. If the decision of this board, appointed on the motion of the city, removable on the address of the city, and paid by the city, is not satisfactory, an appeal lies from the servants to the master, from the city’s board of viewers to the city itself. The city that makes the entry and inflicts the injury, sits as an appellate court to revise the awards against itself for its own acts, and its award is final and conclusive unless the lot-owner is so unreasonable as to insist on being heard in a court of law. If he does this, he must make hot haste and perfect his appeal and lodge it in the Court of Common Pleas within ten days, and comply with a series of technical requirements over which he is in great danger of stumbling as he goes. If he runs the gauntlet safely, and secures foot-room in a court of justice, the front of his own lot is safe from invasion for the time, but the contractor for whose interest all these remarkable provisions seem to “ work together for good ” may tear up and tear open the street on both sides of his lot, and proceed with the work careless of the consequences to anybody, because secure of his own compensation in any event. The comfort of the public, the interest of the property-owners, and the pockets of the tax-payers may all suffer, but the contractor is safe.

Such being the situation of the property-owner, whose land is entered and appropriated by the city, what is the situation of his neighbor whose land is not entered? He must pay for the injury the city does. Section 5 requires the “board of viewers,” after they have estimated the damages sustained by those affected by the proposed improvement, to assess the amount of such damage on the property of those whom they may find to be benefited, and return their assessment of benefits to the city. To this assessment the city is authorized to add all the costs and expenses, including the wages of the board of viewers and their expenses, and five per centum on the whole sum for the city attorney, and call on the lot-owners, who have been assessed, to pay the total so ascertained. If payment is not promptly made a municipal lien is entered. If the lot-owner appeals from the decision of the board, it is to the city itself, now sitting as an appellate court to revise judgments in its own favor, being both plaintiff and judge. If not satisfied with the judgment of such a tribunal, he must find his way to a court of law by the same route laid out for his neighbor who is a claimant. In one respect his condition is much worse than that of the claimant; for, if upon his appeal the claimant recovers a larger sum for the injury he has suffered than the board and the city' allowed him, this recovery summons the board of viewers to another meeting, at which they are required to add to the benefits previously assessed a sum equal to the pro rata share of each lot-holder, assessed with „ benefits, of the additional sum recovered. To this the city again adds costs and expenses, and five per centum for the city attorney, and demands payment of this additional sum. This may be repeated as often as a successful claimant recovers increased damages.

It is not our duty, and we have no desire, to speak of this act of assembly except as this case may require it. We therefore content ourselves with saying that so much of it as relates to the creation, functions, powers, and compensation of the “ board of viewers ” is in plain violation of article III, § 7, of the constitution, and cannot be sustained. These provisions do not relate to any municipal function or officer, but to the jurisdiction of and practice in the courts of law of Allegheny county. They fasten upon such of the citizens of the commonwealth as are the owners of property in a city of the second class, a new, inconvenient, injurious, and despotic system for the assessment of damages done by the exercise of the right of eminent domain, to which citizens in other parts of the state are not subjected. They fasten upon lot-holders, who are assessed with benefits, a new, inconvenient, injurious, and despotic system for the assessment of benefits, to which citizens in other portions of the state are not subjected. If the exigencies of the case required it, an examination of the bill of rights might afford still another reason for holding this act to be unconstitutional, for its provisions amount to a practical denial, to the persons affected by them, of that free and open access to the courts of justice which the bill of rights so plainly guarantees to every citizen of the commonwealth.

The judgments in these cases are reversed, and the assessments and all proceedings based thereon or relating thereto are set aside.