Pittsburg v. Shaffer

66 Pa. 454, 1871 Pa. LEXIS 58

• Court: Supreme Court of Pennsylvania
• Decided: November 8, 1870
• Status: Published

Opinion

The opinion of the court was delivered, January 3d 1871, by

Read, J.

— By the 6th section of an act concerning streets and sewers in the city of Pittsburg, passed 6th January 1864 (Pamph. L. 1133), the councils of Pittsburg were authorized to cause to be graded any public street or any parts thereof, the expense to be paid by the owners of property abutting on it, according to the foot front of such properties.

The defendant was the owner of property on Dinwiddie street, extending from Centre avenue to Rose street.

On the 30th April 1866 a resolution was passed by the Select and Common Councils of the city of Pittsburg as follows:—

“ Resolved, That the owners of property on Dinwiddie street 'be and they are hereby authorized and empowered to fill up said street, from Centre avenue to Pennsylvania avenue, to a uniform grade, provided that said filling up shall be done in such manner as not to interfere with travel along and over said street, and provided that the watercourses over and along the same shall not be disturbed; and such filling up shall be done subject to the direction and control of ike city regulator, and without any cost to the city?’

The defendant procured from the city regulator the grade of Dinwiddie street, and after the passage of said resolution, and under the authority thereby granted, proceeded to fill up the street in front of his property, and made the same to the uniform city grade, at his own expense and without cost to ,the city. It is clear then that the councils caused to be graded that portion of Dinwiddie street lying between Centre avenue and Rose street, the cost being paid by the person liable by law to pay for the grade. This portion of the street was brought up to the uniform city grade, and required no further action of the city authorities.

If all the grading in the city of Pittsburg could be done on the same terms it would be a great bléssing to the community, although it might diminish the emoluments of some of the city officers. Some time after this portion of Dinwiddie street between Centre avenue and Rose street had been graded under the authority of the city councils, on the 31st August 1868 councils passed an ordinance “ That the city engineer be and he is hereby authorized and directed to advertise for proposals for the partial grading of Dinwiddie street from Centre avenue to Pennsylvania avenue, and to let the same in the manner directed by an ordinance concerning streets, passed August 31st 1857; also an act concerning streets, approved January 6th 1864.”

It is clear that this ordinance could have no legal application to that portion between Centre avenue and Rose street, which the councils had already caused to be graded, and which grading had been legally paid for. If, under the resolution of 1866, all the owners of property had graded the whole of Dinwiddie street from Centre avenue to Pennsylvania avenue, the ordinance of August 1868 would have been entirely inoperative, and no assessment could have been made on the owners of property bounding or abutting on the said portion of the said street.

All proposals therefore for grading Dinwiddie street between Centre avenue and' Rose street, and all letting of the same were without authority of law, and of course all assessments for the same, and the municipal claim filed in this case, fall to the ground.

Judgment affirmed.