author: Per Curiam.

text:
    Kilgore versus Magee et al. The Central Board of Education of Pittsburgh versus Phelps.
    1. The legislature has the power to classify cities according to the number of their population, and the fact that some of these classes contain each but one city does not make such classification invalid or bring it within the constitutional prohibition of sect. 7, art. 3 of the constitution, which forbids local and special legislation.
    2. Wheeler et al. v. Philadelphia et al., 27 P. F. Smith 338, followed.
    3. Merely official positions, unprotected by any special constitutional provisions, are subject to the exercise of the power of revision and repeal by the legislature.
    4. An alleged disregard of the forms of legislation required by the constitution in the passage of a law is not the subject of judicial inquiry. So far as the duty and conscience of the members of the legislature is involved, the law is mandatory. They are bound by their oaths to obey the constitutional mode of proceeding, and any intentional disregard is a breach of duty and a violation of their oaths. But when a law has been passed and approved and certified in due form the courts cannot go behind the law as duly certified, to inquire into the observance of form in its passage.

      November 8th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeals from the Court of Common Pleas, No. 2, of Allegheny county: Of. October and November Term 1877, Nos. 253 and 254.
    These were appeals by Samuel Kilgore and the Central Board of Education of the city of Pittsburgh from decrees of the court sustaining demurrers to bills in equity, filed by the respective complainants.
    The bill of Kilgore, a citizen and tax-payer, and the treasurer elect of the city of Pittsburgh, was filed on the 4th of May 1877, against C. L. Magee, treasurer, R. M. Snodgrass, controller, and the members of the finance committee of councils of said city, setting forth and alleging, inter alia, that said C. L. Magee, city treasurer, claimed the right to appoint, and was about to appoint, some person (then unknown to complainant) as “ collector of outstanding or delinquent taxes and water-rents,” under and by authority of a pretended Act of Assembly, entitled “ An Act in relation to cities of the second class, providing for the levy, collection and disbursement of taxes and water-rents,” which purported to have been approved by the governor on March 22d 1877, Pamph. L. 16; that said pretended act was inoperative, unconstitutional and void, and did not legally confer said right or authority upon said Magee, city treasurer, because,
    1. It was not passed or enacted conformably to the requirements of the constitution of the Commonwealth. 2. It contains more than one subject not clearly expressed in its title. 3. It was altered and amended on its passage through both houses of the General Assembly, so as to entirely change its original purpose. 4. It w7as not read at length on three different days in each or either house of the General Assembly. 5. It is a local or special law, only applicable to and intended to operate upon and regulate the affairs of the city of Pittsburgh, under a pretended classification made by the said General Assembly, by which said city is alone created a city of the second class, contrary to art. 3 of the constitution.
    That at the last session of the General Assembly a bill was introduced in the senate entitled “ An Act prescribing the times for the payment of city taxes in cities of the second class,” and designated “ Senate Bill No. 102,” which contained but one section.
    Amendments or alterations of said bill w7ere proposed or made by the House of Representatives, but disagreed to by the Senate, and a committee of conference was created, to whom was referred “ the difference existing between the two houses in relation to the Senate bill No. 102” aforesaid; that said committee of conference did not sit or consider the subject-matter referred to it; that members of said committee acting collusively with certain individuals whose names are unknown to your orator, and with intent to violate the constitution of this Commonwealth, and unduly procure the passage of the bill or act mentioned in the third and fourth paragraphs of this bill, wrongfully returned to the said General Assembly a report setting forth that the committee had “ agreed to recommend the adoption of a bill containing sixteen sections, with an entirely different title, and embracing divers matters and subjects not clearly expressed in its title, and not embraced within the pro* visions or subject of said Senate bill No. 102, nor pertinent to tlie matter referred to said committee; that the same was not read at length, as required by sect. 4 of art. 3 of the constitution, nor duly passed by both or either of the houses of the General Assembly, and is not, nor of right ought to be regarded, respected or enforced as a local or general law of this Commonwealth; that said act is local and special, being only applicable to and intended to be enforced in the city of Pittsburgh, and was illegally passed in disregard and violation of sects. 7 and 8 of art. 8 of the constitution.
    That in passing said act “ Senate Bill No. 102” was so altered and amended on its passage as to entirely change its title and body and purpose, and the said pretended act, with an entirely different title, and containing thirteen sections, not one of which is of the same import, meaning or effect as the original bill, but entirely different and for other purposes, was substituted, contrary to art. 3 of the constitution; that this said act was thus passed for the purpose of increasing the emoluments of C. L. Magee, city treasurer, and indirectly extending his term of office indefinitely, in that it provides he “ shall, previous to the 1st day of August 1877, appoint a person, to be denominated collector of outstanding or delinquent taxes and water-rents,” who shall hold his office for a term of five years, and “ until his successor shall be duly appointed and qualified.” That said act is unconstitutional and void because it diminishes the rights and emoluments of plaintiff, city treasurer elect of the city of Pittsburgh, after his election to said office, by depriving him of the right to collect said taxes and water-rents and of the compensation therefor, contrary to sect. 13 of art. 3 of the constitution, and imposing upon him onerous duties without compensation.
    The bill then prayed that the said Act of Assembly be declared unconstitutional and void; that Magee, the treasurer, be restrained and enjoined from appointing the collector provided for in said act, or doing any other matter or thing authorized thereby, and that the controller, finance committee, and said collector, if appointed, bo likewise enjoined from performing any duty in pursuance of said pretended law or appointment. The act in question made the following, among other provisions:
    Sect. 2. The finance committee of the councils of the cities of the class aforesaid shall be, and are hereby directed, in lieu of any existing authority in relation thereto, to make and agree upon an estimate of the various sums of money which, in their discretion, will be required to defray all tbe various expenses necessary for conducting the various departments, whether legislative, executive or administrative (including schools, or boards of education, or poor boards), of the city government, which estimate shall be founded upon reports obtained from said departments; and also for paying the interest upon the city debt and the principal of such debt falling due; which amounts, when so established by said committee, shall be certified by them on or before the second Monday of January in each year, in detail, to the city councils, to be by them accepted or. modified as the aggregate expenses of the city; and said councils are hereby empowered and directed annually to cause a tax sufficient for all purposes to be levied and collected of the estates, real and personal, subject to taxation within such cities.
    Sect. 3. The educational, school and poor departments shall be departments of the city government, and the amount set apart for educational, school and poor purposes shall be sacred to such purpose, and shall be paid out by the city treasurer only upon warrants drawn by the mayor and countersigned by the city controller. The educational, school and poor funds shall not be divested; warrants on said fund shall only be drawn upon requisitions being filed with the city controller by the proper educational, school or poor boards.
    Sect. 7. That the city treasurer, in cities of the class aforesaid, shall, previous to the 1st day of August 1877, appoint a person to be denominated collector of outstanding or delinquent taxes and water-rents ; the person so appointed shall hold his office for the term of five years from the date of appointment, and until his successor shall be duly appointed and qualified. Such collector shall give bonds, to be approved by the finance committee of the city councils, in the sum of $100,000, conditioned for the faithful performance of the duties of his office.
    Sect.. 8. All taxes and water-rents unpaid at the end of the month in which, by the terms of this act, the same are payable, shall be deemed delinquent, and it shall be the duty of the city treasurer to prepare a registry or list of all taxes unpaid of the first instalment of taxes hereinbefore provided, and place the same in the hands of such collector for collection, on or before the 15th day of April in each year. It shall be the duty of the city treasurer to prepare a registry or list of all delinquents in business tax and water-rents, and place the same in the hands of such collector for collection, on or before the 15th day of July in each year. It shall be the duty of the city treasurer to prepare a registry or list of all taxes unpaid of the last instalment of taxes hereinbefore provided, and place the same in the hands of such collector for collection, on or before the 15th of October in each year. Eor the year 1877 a list of all taxes and water-rents unpaid on the first day of August in said year, shall be prepared by the city treasurer and placed in the hands of such collector for collection. The compensation of such collector shall be ten per centum on the amount collected and paid into the city treasury, which said ten per centum shall be added to said delinquent taxes and water-rents as penalty for non-payment at the time herein prescribed; Provided, That out of said penalty shall be paid all cost of office rent, clerk hire and stationery.
    Sect. 9. Upon the list aforesaid being furnished to such collector, he shall immediately thereafter proceed to collect all such delinquent taxes and water-rents, either out of the personal or real estate of such delinquent owner, wherever the same may be found, and for such purpose he shall be and is hereby invested with full authority to levy on and sell the personal property after the taxes or water-rents have become delinquent thirty days ; and the real estate of any owner where the taxes or water-rents remain unpaid for six months, may be sold by direction of such collector. * * * And, provided, That in all cases of sale for taxes or water-rents, the city controller is hereby authorized and directed to bid on the property a sum sufficient to pay the city’s lien for all taxes and water-rents due and unpaid under this act; and, in case of purchase,.the property shall be subject to redemption, and, in all such cases, neither the collector or the city shall be liable for the payment of the sheriff’s or prothonotary’s costs until the claim of the city and the said costs shall be realized out of the real estate so bought in and held for the use of the city. In all cases of sale, the collector filing the lien shall be entitled to the compensation authorized by this act.
    Sect. 10. The said collector shall make returns, in duplicate, on or before the twentieth day of every month of his collections, under oath, to the city controller, and shall deposit one copy of said returns with the said city controller, and shall deposit one copy of said returns with the city treasurer, and the said collector shall, at the time of making his return, pay the amount of his collections to the city treasurer, and take duplicate receipts therefor, and shall deposit with the city controller one copy of such receipt.
    The defendants jointly demurred to the bill, assigning among other causes therefor, that the proceedings of the Senate and House of Representatives could not be inquired into and adjudicated upon by the court, and that the bill did not contain any matter of equity whereon the court could ground any decree, or give the complainant any relief.
    On the 1st of August 1877, Magee appointed Thomas II. Phelps the collector of delinquent taxes, as provided by the act, who thereupon entered upon the duties of his office.
    The Central Board of Education of the city of Pittsburgh, on the 21st of September 1877, filed a bill in equity against said Phelps. This board was incorporated by virtue of an Act of Assembly, entitled “An Act consolidating the wards of the city of Pittsburgh for educational purposes,” approved the 9th day of February 1855, Pamph. L. 10, &c., and was continued in existence and clothed with additional powers, by an act with the same title, approved February 12th 1869, Pamph. L. 160, &c., under which acts, with a few immaterial modifications, it has continued to control the schools of the city until the present time.
    By the provisions of the Act of 1865, the city of Pittsburgh was created an independent school district, and had complete control of the' schools of the city; with duty and power of maintaining a high school, and school of color, and to pay the teachers of the sub-districts. For these purposes they were required to levy a tax, to appoint a treasurer, and to “ appoint some suitable and competent person as collector of the school duplicate of each ward;” and all moneys collected were to be paid to the treasurer of the board, and disbursed by him, on warrants drawn by direction of the board.
    Under this act the Central Board of Education was entirely distinct from, and had no connection with the city government.
    The Act of February 12th 1869, contained substantially the same provisions, except that by the twentieth section, it was made the “ duty of the treasurer of the city of Pittsburgh for the time being, to receive and collect all school rates and taxes assessed by the central board, to whom he gave bond and accounted monthly. He was also authorized to appoint collectors of delinquent taxes in each ward. In all other respects the taxes were entirely subject to the control of the central board, who, by the twenty-first section, had the sole power to make exonerations.
    The bill set forth the powers of the board under the above recited acts and further averred that said Phelps, having been appointed collector of delinquent taxes under the provisions of the Act of March 22d 1877, threatened to demand and receive from the tax-payers the school taxes due to said Central Board of Education;. that defendant is not responsible to said board for the money which will be collected by him and the recovery thereof cannot be enforced by law. The bill then alleged that the Act of 1877 was unconstitutional and void, on the same grounds set forth in the bill filed by Kilgore, and for the additional reason that it regulates the affairs of the school districts of the city of Pittsburgh in violation of art. 3, sect. 7, of the constitution, which provides that “the General Assembly shall not pass any local or special law regulating the affairs of cities, counties, * * * or school districts, or regulating the management of public schools, &c.;” and further, that said act amends the charter of the Central Board of Education in violation of the constitution, art. 3, sect. 7, which provides that the General Assembly shall not pass any local or special law “ creating corporations, or amending, renewing, or extending the charter thereof.”
    To this -bill a demurrer was also filed on the same grounds, and that the decision of the question involved might be reached as soon as practicable, a decree pro forvia sustaining the demurrers was entered in each case by the court without argument.

      From these decrees these appeals were taken.

      Jeremiah S. Black, Slagle Wiley, A. M. Brown and Thomas M. Marshall, for appellants.
    — If the act is put in operation it will diminish the rights and emoluments of Kilgore, who was elected to the office of city treasurer in February 1877, prior to the alleged passage of the act; it will impose an enormous burden upon the tax-payers of the city, to be levied and collected directly for the emolument of the collector appointed, or to be paid to him out of the city treasury in cases where he may fail to collect his royalty ; it will also impose general taxation upon property within the city of Pittsburgh for the payment of the separate and local debts of the various sub-school districts of the respective wards of the city; which debts are numerous, large and unequal in amounts, and are, by existing laws, properly payable by said sub-school districts for whose benefit and by whose authority, respectively, they were created; it will deprive the county of Allegheny of costs upon proceedings on city tax liens, and thereby impose onerous burdens upon the treasury of the county; it will cause large expenditures from both the city and county treasuries for the maintenance of the system or scheme created by the act, and it will establish a new and important municipal office, non-elective by the people, and confer upon the incumbent important duties and excessive emoluments, to the injury and oppression of the citizens; and will further give said collector of delinquent taxes authority to collect money which belongs to the Central Board of Education and is necessary for the maintenance of the public schools and the payment of the obligations of the board.
    A private citizen may maintain a bill such as that upon which this is founded to test the validity of the law: Sharpless v. Mayor, 9 Harris 147; Moers v. Reading, Id. 188; Page v. Allen, 8 P. F. Smith 338; Kerr v. Trego, 11 Wright 292; Mott v. Pennsylvania Railroad, 6 Casey 9; Robb v. Barlow, 8 P. F. Smith 338; Washington Avenue, 19 Id. 352; Wheeler v. Philadelphia, 27 Id. 338; Wells v. Bain, 25 Id. 39-56.
    If a private citizen can invoke the power of a court of equity to restrain the action of a public officer, or of a public municipal corporation itself, certainly a public corporation can demand its aid to prevent an interference with the performance of the duties for which it was created. In many of the states and in most of the courts of last resort it has been decided that the courts have not only the power but it is their duty to inquire into and determine whether the proceedings of the legislature have been in conformity with the provisions of the constitution, where questions of public or private rights are the subjects of litigation: Cooley Const. Lim.,.3d ed., 78, 139 and 159; Supervisors v. Heenan, 2 Min. 330; State v. Platt, 2 S. C. N. S. 150; State v. Johnson, 26 Ark. 281; Jones v. Hutchinson, 43 Ala. 722; Solomon v. Cartersville, 41 Ga. 157; People v. Allen, 42 N. Y. 378; Opinion of Justices, 35 N. H. 579; Spangler v. Jacoby, 14 Ill. 297; Illinois Central Railroad Co. v. Wren, 43 Id. 77; People v. DeWolfe, 62 Id. 253; Turley v. County of Logan, 17 Id. 151; Prescott v. I. & M. Canal Co., 19 Id. 324; Ryan v. Lynch, 68 Id. 160; Berry v. Railroad Co., 41 Md. 446; Gardner v. The Collector, 6 Wall. 511; Ottawa v. Perkins, S. C. of U. S., Pittsburgh, Leg. J. May 23d 1877; Steckert v. East Saginaw, 22 Mich. 104; Oliver v. Washington Mills, 11 Allen 268; Legg v. Mayor of Annapolis, 16 Am. Law Reg. 25.
    A valid statute can only he passed in the manner prescribed by the constitution, and when the provisions of that instrument, in regard to the manner of enacting laws, are disregarded in respect to a particular act, it will be declared a nullity, though having the forms of authenticity. And whenever a question arises in a court of law as to the existence of a statute, or as to the time when it took effect, or as to its precise terms, the judges who are called upon to decide such questions, have a, right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, the best and most satisfactory evidence in all cases being required: Gardner v. The Collector, 6 Wall. 499; Legg v. Mayor, &c., of Annapolis, supra. Parol evidence will be received to show that the legislature exceeded its powers and disregarded constitutional limitations: Jones v. Jones, 2 Jones 350; Cronise v. Cronise, 4 P. F. Smith 262; Miles v. Stevens, 3 Barr 41; Southwark Bank v. The Commonwealth, 2 Casey 446; DeChastellux v. Fairchild, 3 Harris 18; Dorsey’s.Appeal, 22 P. F. Smith 192.
    By the Act of May 23d 1874, the cities of the state were divided into three classes: 1. Those containing more than three hundred thousand inhabitants; 2. Those containing less than three hundred thousand and more than one hundred thousand; and 3. Those containing less than one hundred thousand and more than ten thousand. In fact, Philadelphia is the only city with a population greater than three hundred thousand, and Pittsburgh the only one with less than three hundred thousand and over one hundred thousand. To separate these two cities from all others in the state and put them apart, ■ each by itself, and to call that classification, is a curious use of language. When you separate persons or things, and deal with each by itself, you perform a process the very opposite to classifying, which consists in arranging a number of things together in accordance with some quality or accident which they all have in common. Class is a noun of multitude, and you cannot properly call a city a class of cities, for the same reason that you cannot speak of one ox as a drove, or one wolf as a pack. When the legislature says classification, it means segregation. It was intended to individualize these two cities — not to arrange them in classes or put them together with one another. In that same act, and other acts subsequently passed, the phrase “all cities of the first class” signifies precisely the same thing as Philadelphia, and the words “all cities of the second class” furnish a perfect synonym for Pittsburgh. This law, therefore, applies solely and especially to Pittsburgh, and operates upon Pittsburgh as exclusively as if the framers of it had said so without circumlocution. It is not in form a local law for one particular place; it professes on its face to be made for all cities of the second class ; but all cities of the second class mean Pittsburgh. It might as wrell have been described by the words “ all cities situated between the rivers Monongahela and Allegheny, at the point of their junction with the Ohio.”
    But this interpretation, which we think so clear, has been pronounced not sound, but specious, by this court, in Wheeler v. Philadelphia, 27 P. F. Smith 338. The opinion of the court seems to be predicated upon the case of Walker v. Cincinnati, 11 Ohio 14, and no other precedent or authority for the ruling is cited. The case cited is not at all like this, nor could the same question arise in an Ohio court upon an Ohio statute, for that state has not, and never had, any provision in her constitution similar to the one in ours, which is violated by the act under consideration. The question involved is of such importance, affecting, as it does, the interests of great communities who supposed they had the protection of those wise provisions of the constitution providing against special legislation, a.nd to our minds the Act of Assembly is such a manifest attempt to evade the constitution and to pass a local law under the color and false appearance of a general enactment, that we feel justified in asking this court to reconsider their judgment, as given in Wheeler v. Philadelphia, supra, believing that more careful consideration will lead to a different conclusion as to the validity of the Act of 1874, and, consequently, as to the validity of the legislation now in question.

      George P. Hamilton, George Shiras, Jr., M. W. Acheson, and D. T. Watson, for appellees.
    — We cannot try the constitutionality of a legislative act by the motives and designs of the law-makers, however plainly expressed. If the act itself is within the scope of their authority, it must stand; and wo are bound to make it stand, if it will, upon any intendment. It is its effect, not its purpose, which must determine its validity. Nothing but a clear violation of the constitution, a clear usurpation of power prohibited, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void: Speer v. School Directors, &c., of Borough of Blairsville, 14 Wright 150; Sharpless v. The Mayor, 9 Harris 164; Hilbish et al. v. Catherman, 14 P. F. Smith 154; Pennsylvania Railroad Co. v. Riblet, 16 Id. 164-169.
    • The legislature, under constitutional limits, is the supreme lawmaker of the state. Within the constitution it is supreme, and when a law, confessedly within the power of the legislature to make, comes down to the people, authenticated by the presiding officers of the respective houses, approved by the governor, and certified and declared by the secretary of state to be the law of the state, no citizen, we contend, in a private controversy, can call upon the courts to go behind the record thus made up, and impeach the validity of the law, by showing that in its enactment some form or proceeding had not been properly followed or adopted by the legislature, the supreme law-maker: People v. Devlin, 6 Tiffany 269; Evans v. Browne, 30 Ind. 514; Bender v. The State, 53 Id. 254.
    The cases in Pennsylvania, cited by appellant, viz: Jones v. Jones, Cronise v. Cronise, Miles v. Stevens, and Bank v. Commonwealth, are inapplicable to the question now under discussion. None of them relate to modes or processes of legislation, but exclusively to the power of the legislature under the constitution. The question in all these cases was whether the legislature possessed the power to enact the laws in question, and not whether they had been enacted according to forms and rules of procedure.
    The authentication of a law should preclude all inquiries, not merely into the routine of legislation, but also the grounds of it. Are the provisions in the constitution relating to the passage of bills, limitations upon the powers of the legislature ? Or are they prescriptions merely as to the mode or manner in which the powers shall be exercised ? Our constitution is a limitation and not a grant of powers. The legislature possesses all powers, inherent in legis- ■ lative bodies, unless expressly prohibited. The prohibition must be so clear as to preclude all doubt. There may be laws directory as well as mandatory, and this is predicable of fundamental as well as of statutory laws: Miller v. State, 3 Ohio (N. S.) 483; Pim v. Nicholson, 6 Id. 179; People v. Supervisors of Chenango, 8 N. Y. 328; McCulloch v. The State, 11 Ind. 432; Lehman v. McBride, 15 Ohio St. 602; Washington v. Page, 4 Cal. 388; Pierpont v. Crouch, 10 Id. 316; McPherson v. Leonard, 29 Md. 377; Anderson v. Baker, 23 Id. 531.
    The emoluments or salary of a public officer are not property, and may be increased or diminished by law at all times, except when the constitution has forbidden it. The appellant is not within the protection of the constitution. He is not a public officer, but an officer of a municipal corporation, constituting only an integral part of the public, and a territorial division of the Commonwealth. A public officer is an officer who is appointed by the governor or elected by the people of the state: Commonwealth v. Burrell, 7 Barr 34-39; People v. Devlin, 33 N. Y. 288; Connor v. The Mayor, 1 Seld. 285.
    That this law is not local or special legislation is no longer a question since Wheeler v. Philadelphia, 27 P. F. Smith 338.
   The judgment of the Supreme Court was entered, November 19th 1877.

Per Curiam.

— The merits of the Act of 22d of March 1877, “in relation to cities of the second class, providing for the levy, collection and disbursement of taxes and water-rents,” are not a subject for our opinion. The only question before us in these cases is, upon the power of the legislature to pass this law. After a thorough argument and a careful consideration, we' are unable to pronounce the law unconstitutional. The power to classify cities according to the number of their population was fully discussed and decided in the case of Wheeler v. Philadelphia, 27 P. E. Smith 338. We adhere to that decision, and indeed cannot see how the question of power could have been decided differently. To say that no general law can be passed to regulate a certain subject because some of the classes contained in the regulation do not yet exist, or exist only in a limited number, is to hold that no law can be passed to provide for future wants or necessities. The welfare of the state and one of the chief purposes of legislation would be struck down by such a decision. If the classification had been different and the number of the population to constitute a city of the first class, had been fixed at one million, would the classification be void because no city had yet reached that number ? The absurdity of such a proposition is manifest, and it is simply to say that no law can provide for a state of affairs to which the subject is rapidly approaching, but which it has not yet reached. If the power to classify and regulate the subjects of cities generally be admitted, and clearly it cannot be successfully denied, the question of local legislation is at an end; for though it may happen that but one city may fall within the class, non- constat that others will not shortly do so and therefore may be provided for. The law was not passed for Pittsburgh as the only city happening within the second class, but for all cities having the population to bring them within that class. If I agree to sell all my lands at a certain rate according to a classification of tracts I have adopted, and only one tract falls within the rate of a given class, will any one be guilty of the absurdity of saying that it is not governed by my classification. The motives of those who passed the law are not involved. Suppose they did perceive that Philadelphia was the only city falling within the first class, and Pittsburgh the only one in the second, yet the motive influeiíbing that classification cannot be inquired into. If the power to classify for wise purposes exists, that ends the matter.

This act concerns a municipality — a division of the state for governmental purposes, and falls within the power of repeal and revision. Those who occupy merely official positions, unprotected by any special constitutional provisions, cannot set themselves up against the exercise of this governmental power. We know of no constitutional right of Mr. Kilgore or of the Central Board infringed by this law. They fill the place of public servants merely.

In regard to the passage of the law and the alleged disregard of the forms of legislation required by the constitution, we think the subject is not within the pale of judicial inquiry. So far as the duty and the consciences of the membei’s of the legislature are involved the law is mandatory. They are bound by their oaths to obey the constitutional mode of proceeding, and any intentional disregard is a breach of duty and a violation of their oaths. But ’when a law has been passed and approved and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage. The presumption applies to the act of passing the law, that applies generally to the proceedings of anybody whose sole duty is to deal with the subject. The presumption in favor of regularity is essential to the peace and order of the state.

If every law could be contested in the courts on the ground of informality in its enactment, the floodgate of litigation would be opened so widely, society would be deluged in the flow. It is not a question of fraud in which that is set up as a law which never was so in form or in fact, but a question of regularity in the conduct of those who have the power to enact the law, and who declare it to be such. The evidence of a law — its actual existence — we may inquire into; for before we are bound by it, we must be satisfied it is the act of the legislature, however informally they may have conducted the process by which they have made it a law.

Upon the whole case, we discover no substantial error, and the decree in each case sustaining the demurrer is affirmed, with costs of the appeal to be paid by the appellants in each case, and the appeals respectively are dismissed.


source: Caselaw Access Project

author: Mr. Justice Mercur,

license: Public Domain

text:
    Bidwell versus City of Pittsburgh.
    Where a party is active in procuring an ordinance from the councils of a city directing the grading and paving of a street, is elected a commissioner under such ordinance and charged with the superintendence and control of the improvement, sells the bonds of the city and expends the proceeds thereof to defray the cost and makes the assessments upon properties abutting on said street after a particular mode of assessment, he is estopped from denying the validity of the Act of Assembly in accordance with which said ordinance was passed and the mode of assessment thus adopted.
    November 8th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 256.

      Scire facias sur municipal claim, issued by the city of Pittsburgh against D. W. C. Bidwell, to recover the cost of grading and paving Ellsworth avenue, done under the provisions of the Act of April 2d 1870, Pamph. L. 796, entitled “ An Act for the improvement of Penn avenue and other avenues and streets in the city of Pittsburgh.” The 26th section of this act made it general, by providing that its provisions might be extended to other streets and avenues, on a petition of a majority of the property holders whose properties fronted thereon.
    By this act it was provided that five commissioners should be selected by the property holders along said avenue, who were to be charged with ascertaining the cost of the proposed improvement, have control of the same, and make the assessments to defray the expenses. These assessments were to be made according to the number of feet each property abutted upon said avenue, and were to remain a lien upon said property, to the extent of one hundred and twenty feet in depth, until they were paid. These assessments were made payable in ten annual instalments. The work, while it was in progress, was to be paid for with city bonds, to be issued upon the requisition of said commissioners, which bonds were to be redeemed by a fund made up from the assessments.
    Ellsworth avenue, Avhich extends through a rural district, was graded and paved under the provisions of this act, a petition having been presented to the councils of the city nf Pittsburgh, an ordinance enacted, and commissioners elected in pursuance therewith.
    The cost of the improvement was $>166,000, for which city bonds were issued.
    Mr. Bidwell, who owned property on this avenue, was among those who signed the petition to councils to have the same graded and paved, and having been elected one of the commissioners, he acted as such in directing and superintending the work, selling the bonds, expending the proceeds thereof on the streets, and in making the assessments on the various properties, including his own.
    On the announcement of the decision in Seely v. The City of Pittsburgh, 1 Norris 860, wherein the Supreme Court held that the Act of 1870, in so far as it applied the frontage rule of valuation to rural property, was unconstitutional, the city councils of Pittsburgh instructed their solicitor to proceed upon a lien against property-holders who had taken part in procuring some improvement to be made, so that it might be determined whether there w'as not some estoppel by which these owners of property might be made to pay their respective assessments. Mr. Bidwell having been active in the promotion of the improvement of Ellsworth avenue, was selected as one of these owners of property, and against him this suit was then brought.
    The defendant resisted the claim on various grounds, among which were these: that the Penn Avenue Act was unconstitutional; that the frontage rule of valuation, as applied to rural lands, such as these along Ellsworth avenue, was illegal and unjust; that said avenue is a great public thoroughfare mainly for public use, and it is unjust and illegal to assess private property abutting thereon for the cost of improving it for said public use; that it was inequitable to impose the liability upon those who were active in promoting the improvement, while others are relieved therefrom who made no protest while the work was in progress but acquiesced therein, and who derive an equal benefit therefrom; that in some cases there had been no petition for grading and paving, and in some no petition was required by law, and the cost of these improvements must be paid by general taxation, and if defendant is compelled to pay this assessment his property will thus be made liable for an excessive and unjust share, while his efforts in behalf of this improvement had been made with the understanding that each street should pay for its own improvement, and each property-holder in proportion to the number of feet his property abutted on said street.
    The in the to the said:—
    “Another ground of defence is a kind of equity arising out of the fact that many assessments cannot be collected, and to collect a part would be unjust. But this objection, it seems to me, would apply to any system of assessments or taxation. There will always be some who will not or cannot pay; and mistakes will occasionally happen which will render the collection of others impossible.
    “ It is better that this case should go up to the Supreme Court, on the question of estoppel. Eor that reason I have ruled out nearly all the evidence offered by the defendant. If this point is decided against him, his offers become immaterial.
    “I therefore instruct you, that, if the, defendant signed the petition to councils asking for the ordinance directing the grading and paving of Ellsworth avenue under the Penn Avenue Act; that in pursuance thereof the ordinance was passed; that the defendant was duly elected one of the commissioners, • and acted as such in directing and' superintending the work, selling the bonds of the city, expending the proceeds thereof on the street, and making the assessments upon the properties, including his own, for which this suit is brought; he is now estopped from denying the validity of the Act of Assembly, or its applicability to Ellsworth avenue, or the legality and validity of the mode of assessment provided in the act, and your verdict should be for the plaintiff.”
    The verdict was for plaintiff, and the defendant took this writ assigning this instruction of the court for error.

      T. Mellon, D. Bruce and M. A. Woodward, for plaintiff in error.
    — The true principles, demonstrated with conclusive reasoning, in the case of Seely v. City of Pittsburgh, 1 Norris 360; Washington Avenue, 19 P. F. Smith 361; and Hammett v. City of Philadelphia, 15 Id. 151, rule this cause. And but for the remark in the conclusion of the opinion in the Seely case, that, “ if there be any facts to raise an estoppel or other defence in equity, the parties ought to have stated them,” that case, as intended, would have been deemed as settling for ever the law of all this class of cases.
    To constitute an estoppel at least three ingredients seem to be necessary: 1st, misrepresentation, or wilful silence by one having knowledge of the fact; 2d, that the actor, having no means of information, was, by the conduct of the other, induced to do what otherwise he would not have done; and 3d, that injury would ensue from a permission to allege the truth. And these three things must appear affirmatively: Commonwealth v. Moltz, 10 Barr 527; Eldred v. Hazlett’s Adm’rs, 9 Casey 307; Helser v. McGrath, 2 P. F. Smith 534; Miranville v. Silverthorn, 12 Wright 149; Dezell v. Odell, 3 Hill (N. Y.) 215; Bigelow on Estoppel 9, 473, 480; Herman on Estoppel, § 325, &c. ; Alexander v. Kerr, 2 Rawle 90; Brown v. Spalding, 1 Pittsburgh R. 361; Hill v. Epley, 7 Casey 331; Crest v. Jack, 3 Watts 240; Epley v. Witherow, 7 Id. 163; McCormick v. McMurtrie, 4 Id. 195; Wilton v. Harwood, 23 Me. 131; Bispham’s Prin. of Eq., § 288-9; Barring v. Corrie, 2 B. & Ald. 137; Means v. Henderson, 1 East 335.
    It is said we petitioned for the improvement, and acted as a commissioner,, doing all required of such officer, and by those acts are estopped from showing that the street is through rural and farming lands, and the method of assessment thereby invalid. But in those acts there was no color of deception, misrepresentation or concealment, and, therefore, there is not and cannot be found in them any element of estoppel.

      D. T. Watson and T. S. Bigelow, City Solicitor, for the city.
    Under some circumstances a party who is illegally assessed may be held to have waived all his rights to a remedy by a course of conduct which renders it unjust and inequitable to others that he should be allowed to complain of the illegality. Such a case would exist if one should ask for and encourage the incurring of the tax of which he subsequently complains: Cooley on Taxation 573; Cooley on Const. Lim. 181; Baker v. Braman, 6 Hill 47; Embury v. Connor, 3 N. Y. 511; Heyward v. The Mayor, 8 Barb. 486; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586; The People v. Murray, 5 Hill (N. Y.) 468; Lee v. Tillotson, 24 Wend. 337; Kellogg, Treas., v. Ely, 15 Ohio St. 66; The People v. Goodwin, 1 Seld. 573; Ferguson v. Landram, 5 Bush (Ky.) 233; Tash et al. v. Adams, Treas., 10 Cush. 252; Van Hook v. Whitlock et al., 26 Wend. 43; Palmer v. Stumph, 29 Ind. 329; Hellenkamp v. City of Lafayette, 30 Id. 192.
    Misrepresentation is not essential to estoppel: Miller’s Appeal, 3 Norris 391.
   Mr. Justice Mercur,

delivered the opinion of the court, January 7th 1878.

The seventeen assignments of error may be considered together. They all involve the question whether the plaintiff can avoid the payment of the assessments made on his lands on the ground of alleged unconstitutionality of the law authorizing them.

The claim is to recover the cost of grading and paving Ellsworth iavenue, on which plaintiff’s lands front, under the Act of 2d April 11870, Pamph. L. 796. The main provisions of the act, to which reference need be made, providing for this improvement, are

1. It requires a petition from a majority of property-holders along the line of the proposed improvement, before the councils can act.

2. When authorized by councils, the improvement is placed under the exclusive control of the commissioners elected by the owners of property abutting on the improvement.

3. The cost of the improvement is to be paid in ten equal annual instalments with interest.

The legislative power to apportion a local tax, for a local improvement within the limits of a municipal corporation, has frequently been recognised by this court; so has the validity of municipal claims assessed on lots fronting on streets, their due share of the cost of grading, paving, curbing, building sewers and culverts, in proportion to the respective fronts: Pennock v. Hoover, 5 Rawle 291; Northern Liberties v. St. John’s Church, 1 Harris 104; The City v. Wistar, 11 Casey 427; Commonwealth v. Woods, 8 Wright 113; Magee v. Commonwealth, 10 Id. 358; Wray v. The Mayor of Pittsburgh, Id. 365; Smith v. McCarthy, 6 P. F. Smith 359; City of Philadelphia v. Field, 8 Id. 320; Stroud v. City of Philadelphia, 11 Id. 255; Washington Avenue, 19 Id. 352.

In Seely v. City of Pittsburgh, 1 Norris 360, it was held that while thp frontage rule of valuation might be a just mode of assessing the cost, upon compact city lots where the properties do not materially differ in value, yet it could not be applied 'to a street made through rural districts, and so far as the Act of 2d April 1870 applied this mode of assessment to the latter districts, it was unconstitutional. The validity of the law generally is there conceded, but the right to apply it to the property in question is denied.- Assuming that to be a correct exposition of the law, we will consider its application to the facts in the present case.

It is conceded that Ellsworth avenue was made through a rural district and that the property of the plaintiff sought to be charged was rural land. It would then be relieved from this mode of taxation unless other facts made it so chargeable. What are the other facts ? As the first step towards procuring this improvement, a petition, to which the name of the plaintiff and twenty-seven other names were subscribed, was presented to the councils of the city /of Pittsburgh. It declared the petitioners were the owners of a majority in interest of the property abutting on Ellsworth avenue, and that they desired to avail themselves of all the privileges of the Act of 2d April 1870, and asked for the passage of an ordinance directing the grading, paving and curbing of the same, and authorizing the election of commissioners. To this petition was added the affidavit of the plaintiff and two other signers thereof, averring the petition to be signed by the owners of a majority in interest of the property abutting on the avenue, and that the signatures were the genuine signatures of the petitioners.

The court substantially charged the jury that.if they found the ' plaintiff' in error signed the petition asking for the ordinance directing the grading and paving of Ellsworth avenue, under the Penn Avenue Act; that in pursuance thereof the ordinance was passed; that he was duly elected one of the commissioners, and acted as such in directing and superintending the work, selling the bonds of the city, expending the proceeds thereof on.the street, and in making the assessments upon the properties, including his own, for which this suit was brought, he was estopped from denying the validity of the act, or its application to Ellsworth avenue, or the legality and validity of the mode of assessment provided in the act.

It is not alleged that the evidence of these facts was insufficient to submit to the jury, nor that its finding thereof was unjustified. Conceding the facts, it is contended by the plaintiff in error that they are insufficient to prevent his alleging the unconstitutionality of the act for the purpose of relieving himself from its operation.

In Pickard v. Sears, 6 Ad. & El. 469, a leading case of estoppel by conduct, it was said “the rule of law is clear that where one by his words or conduct wilfully causes another to believe in the"' existence of a certain state of things, and induces him to act on ■ that belief, so as to alter his own previous position, the former is \ concluded from averring against the latter a different state of / things as existing at the same time.”

It may now be declared as a general rule, that whore an act is done, or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what otherwise would be mere matter of evidence. It is not necessary that the party against whom an estoppel is alleged, should have intended to deceive: it is sufficient if he intended that his conduct should induce another to act upon it, and the other, relying on it, did so act: Bisp. Eq., 1 | 290.

Prior to the presentation of the petition of the plaintiff in error, the city authorities had taken no steps towards the improvement of Ellsworth avenue. In fact, under the act they had no power so to do. The power was called into action by the petitioners. They asked to have the avenue brought under the operation of the act. They voluntarily asked for the privilege of becoming subject to all its provisions. They asked for the passage of the ordinance directing the work — for the assessment of their lands according to the frontage rule, in order to pay the bonds to be given to raise money to make the improvement.

The authorities acceded to the request. They altered their previous position. They assumed the large additional indebtedness, relying upon the words and conduct of the petitioners. The latter declared they would submit themselves to all the charges and responsibilities imposed by that act. They wilfully caused the authorities to believe this as a matter of fact. So believing, the authorities acted upon it. They accepted the offer in the terms in which it was made. The petitioners directed the work. They received and enjoy the benefits. To now permit them to deny the truth or the eflicacy of the assurance given, and continued during the progress of the work, would work a fraud on the city, which cannot be sanctioned.

It is true every one is presumed to know the law, and knowledge thereof is said to be equally open to all. Conceding that the city had knowledge of the law, or ought to have had it, the like legal presumption applies to the plaintiff in error, and his equities derive no strength from that presumption. The city had no reason to believe that he would allege any invalidity in the law which he was praying to have extended over him.' The city was misled, not by expressive silence merely of the plaintiff in error, but by his decided and persistent action. It has been held that where a party has acted upon a particular construction of a contract which has been acquiesced in by the other, the latter is estopped from contesting, it as the proper construction : Mercer Mining and Manufacturing Co. v. McKee, 17 P. F. Smith 170.

The constitutional right against unjust taxation, which the plaintiff in error invokes, is given him for the protection of his private property. He may waive that protection and consent to such action in regard to it as would otherwise be invalid. Having consented, and the other party having acted thereon, and made expenditures and incurred expense predicated thereon, the consent cannot be withdrawn. Hence, an act appropriating the private property of one person for the private purpose.of another on compensation made, was held valid when he whose property was taken assented thereto, and receiving the compensation awarded was a sufficient assent: Cooley on Const. Lim. *181.

The valid waiver of constitutional rights both of person and of property is of frequent occurrence. The constitution guarantees the right of trial by jury to one charged with a crime, yet he may waive that right and plead guilty in a case where his life will pay the penalty. So his private property may not be taken for a public highway without compensation paid or secured, yet he may just as effectively divest his right by a voluntary dedication to the public followed by acceptance and expenditure.

It is objected that inasmuch as some lands abutting on this avenue may not be held liable to the specific tax for grading and paving the same, in consequence of the owners thereof not having subjected themselves to the application of an estoppel, and in that case a portion of the cost of the improvement will fall on the tax-payers generally, of which the plaintiff in error is one, it would be unjust to impose on him this special tax in addition thereto. We are unable to see any force in this objection. His own direct.action has charged his land with this special tax. If one of the consequences of that action has been to throw a portion of the cost of the improvement on the tax-payers generally, on what principle ought he to claim exemption therefrom ? Ho has not derived. less benefit than they from this improvement. No voluntary act of theirs caused the expenditure. Why, then, shall he not bear his share of the obligation, which his voluntary action has created and not cast it wholly on. others ? As, then, a portion of any general tax levied for this purpose would justly fall on him, it cannot furnish any ground for relieving his property from the payment of the special tax. If so relieved, his conduct would have the effect of imposing lai’ger taxation on others, and thus work still greater injustice.

Numerous authorities sustain the conclusion at which we have arrived. Among them are: City of Burlington v. Gilbert, 81 Iowa 356; Story v. Furman, 25 N. Y. 230; Tash et al. v. Adams, 10 Cush. 252; Ferguson v. Landram, 5 Bush (Ky.) 233; Motz et al. v. City of Detroit, 18 Mich. 528; Lee v. Tillotson, 24 Wend. 337; The People v. Murray, 5 Hill 468; Mayor of Pittsburgh v. Scott, 1 Barr 809.

Whether other property on Ellsworth avenue has or has not become • liable to assessment under the Penn Avenue Act is not a question now before us. The bonds issued by the city for the improvement of various streets under that act amount to about five millions of dollars. It may be that all who passively enjoyed the benefits of the improvements may not be liable to specific assessments to pay the bonds under the act; yet it by no means follows that the plaintiff in error is discharged from his obligation: City of Burlington v. Gilbert, supra; Kellogg v. Ely, 15 Ohio St. 66. The conduct or action of each may determine his own liability where the law would not otherwise make him liable. We discover no error in the record. Judgment affirmed.


author: Mr. Justice Sterrett

text:
    City of Pittsburgh versus Irwin’s Executors.
    1. Where a street is opened, under the provisions of the Act of January 6th 1864, Pamph. L. 1131, and its supplements, and in pursuance of said act a bond is filed to indemnify parties whose property is damaged by said opening and an appeal from a report of viewers is certified from the Quarter Sessions to the Common Pleas, under the provisions of the Act of June 13th 1874, Pamph. L. 283, for trial by jury and judgment is therein recovered, the primary fund out of which said, judgment is to be paid is that to be raised by the assessment and collection of benefits from the property along the street opened, and this fund must be exhausted before recourse can be had to the bond.
    2. The proper proceeding is to remit the record after judgment, from the Common Pleas to the Quarter Sessions, for the purpose of completing the assessment, and handing it over to the city attorney for collection of benefits and payment of damages, and if the damages awarded by the Common Pleas are not thus paid then recourse can be had to the bond filed in the Quarter Sessions.
    November 9th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 267.
    This writ was taken by the executors of Anna H. Irwin, deceased, from an order of the court in the matter of the opening of Eortyseventh street, in the city of Pittsburgh. Said street was ordered to be opened by an ordinance of said city of June 30th 1873, which directed the damages and benefits arising from said opening to be assessed and collected in accordance with the provisions of the Act of January 6th 1864, Pamph. L. 1131, and the several supplements thereto. The viewers assessed the damages to the Irwin property at $3000. ■ The report of the viewers having been confirmed by councils on the 14th of October 1877, the executors of Anna EL Irwin appealed therefrom, as provided by the Acts of 1864 and May 13th 1871, Pamph. L. 840, to the Court of Quarter Sessions of the county. The bond required by the Act of 1864 to be filed by the city to indemnify parties damaged by said opening, was filed in the sum of $15,000, on the 27th of Eebruary 1874.
    On the 25th of October 1875, the executors of Anna H. Irwin made a demand to the Court of Quarter Sessions for a jury trial as to the assessment of damages for the property taken by the opening of said street, and on the same day the court certified the appeal to the Court of Common Pleas, No. 1, for such trial.
    This demand to and order of the Court of Quarter Sessions was made because of the provisions of the constitution, section 8, article 16, viz.: “ The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals, made by viewers or otherwise; and the amount of such damages, in all cases of appeal, shall, on demand of either party, be determined by a jury, according to the course of the common law.”
    The case was tried in the Common Pleas, and a verdict found for the plaintiffs for $12,000, as the amount of damages sustained by the said opening. The case was then taken to the Supreme Court, upon an order of the Common Pleas striking off the case because of the demand for jury trial not having been made within the time fixed by the Act of 18th June 1874 ; and in reversing this action of the court below, this court said, “ This • court, proceeding to give the same judgment which the court below ought to have rendered, now give judgment on the verdict for the plaintiff for the damage as found by the jury, viz., $12,000, with costs of suit; and the record is ordered to be remitted to the Court of Common Pleas, No. 1, for execution.” The record was remitted to the court below, and thereupon motions were made as follows: “ And now, June 2d 1877, comes Thomas S. Bigelow, on behalf of the city of Pittsburgh, defendant in the above-mentioned case, and moves the court for an order certifying the record in said case back into the Court of Quarter Sessions of Allegheny county, for disposition there according to the law in such case made and provided. Whereupon, upon consideration, the court direct the prothonotary to transmit a certified copy of the record, together with the papers in the case, forthwith to the Court of Quarter Sessions of Allegheny county.” On June 2d 1877, a rule to show cause why this order should not be granted, was made by the court.
    On the same day a motion was made for a rule to show cause why a special writ of execution should not be issued upon the judgment in this case. On July 7th 1877, both of these motions were argued together, and the court, after consideration, discharged the first, and made absolute the second, to which action of the court exception was taken by the defendant.
    The city then took this writ, assigning for error the discharge of the first and making absolute the second rule, as above stated.

      Thomas S. Bigelow, City Solicitor, for plaintiff in error.
    — The action of the court below abrogates the provision of the Act of Assembly, that the damages shall be assessed upon properties benefited by the street opening. The only right furnished by the constitution is, that the amount of damages shall be ascertained by a jury, according to the course of the common law. It was not contemplated that the laws under which the street was to be opened should be set aside.
    When the jury in the Court of Common Pleas liquidated the amount of damages to which the Irwin estate was entitled the record Of that fact should have been ordered back into the Court of Quarter Sessions, and the powers of the Quarter Sessions under the Acts of 1864 and 1871 executed in having the damages thus ascertained assessed by a board of viewers upon properties benefited by the street opening.
    In the event of a failure of the viewers to find benefit sufficient to pay the damages, if possession had not been taken under the Act of 20th of March 1873, the street opening would have to be abandoned because of the failure of the law to execute itself and the party left in his original attitude and not disturbed in the least in his rights. If possession had been taken under the Act of 1873, the only remedy which he would have would be in an action upon the bond of the city filed in the Quarter Sessions for the express purpose of securing such parties.

      Hill Burgwin, contra,

    did not present a paper-book.
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

The questions presented by the record in this case arise under proceedings instituted by the plaintiff in error, for the opening of Eorty-seventh street in the city of Pittsburgh. They will be more readily understood by briefly referring to the Acts of Assembly relating to the subject of opening streets.

By the first section of the Act 6th January 1864, the councils are authorized to lay out and open new streets, lanes and alleys whenever they deem the same necessary, and to levy and collect the value of property thus taken, or the damages done to property thereby, by an assessment upon the properties which may be benefited by such improvement. After an ordinance has been passed for opening a street, the act prescribes in detail the duties of the board of viewers, who, when their assessment of damages and benefits is completed, are required to report the same to councils. It is then made the duty of councils to hear any appeals or further complaints made by any person aggrieved by the report of the viewers, wfith power to recommit the same for further action, or to quash the proceedings. When the report is finally acted on by councils, any person aggrieved may appeal to the Court of Quarter Sessions, upon whose order the clerks of councils are required to certify to the court all the papers and proceedings in the case, and thereupon the said court shall take such action in the premises as they may think right and proper, and shall have power to hear evidence, to modify, correct and approve said report or quash the whole proceedings, or to appoint new viewers, with like power to modify, correct and approve their report or quash their proceedings; and in case of an appeal to court, it shall direct who shall pay the costs of the appeal.”

It is also provided, “ that after the final approval by councils, or, of the court, in cases of appeal, the plot and report of the viewers shall be handed over to the city attorney to collect the assessments and pay the damages.” The duties of the city attorney, as to filing liens, and promptly enforcing payment, &c., are fully defined.

The supplement of March 20th 1873, provides that in case possession is taken of the street “ before the assessment of damages and benefits for the opening shall have been made and approved, it shall be the duty of the city to file in the office of the clerk of the Court of Quarter Sessions, the bond of the city in such amount as shall be fixed by the court, conditioned to indemnify and save harmless all the parties who may be damaged, from all loss or damage by reason of the opening, widening, &c., with provision that said bond shall become void on the final confirmation of the report of viewers and the payment of all damages therein assessed.” In the present case a bond in $15,000 was given, approved by the court and filed on the 27th February 1874, before possession was taken of the street by the city authorities.

The Act of 13th June 1874, Pamph. L. 283, passed for the purpose of carrying into effect the 8th sect, of the 16th art. of the constitution, provides for appeal by either party, and trial by jury in the Court of Common Pleas, in “ cases of damages assessed against any municipal or other corporation or individual or individuals, invested with the privilege of taking private property for public use, for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements,” &c.

In this case the proceedings of councils and the board of viewers were in conformity to the acts above referred to. The damages awarded the defendants in error were assessed by the viewers at $3000. Within ten days after the approval of the report by councils, they appealed to the Court of Quarter Sessions, and on the 18th of October 1874 all the papers and proceedings in the case were duly certified by the clerk of councils and filed in court. On the 23d of the same month they demanded a trial by jury, which was granted, and all the proceedings were certified into the Court of Common Pleas for the purpose of having their claim for damages determined by a jury. The trial resulted in a verdict in favor of the defendants in error for $12,809.50. The court refused to enter judgment on the verdict and dismissed the proceedings for supposed W'ant of jurisdiction. A writ of error was taken to this court and on the 2d January last the order of the court below was reversed and judgment entered here on the verdict in favor of the present defendants in error, and the record remitted to the court for execution. After the record was returned a rule was granted at the instance of the city of Pittsburgh to show cause why the record and papers should not be certified back to the Court- of Quarter Sessions; and at the same time a rule was granted at the instance of the defendants in error to show cause why a special writ of execution should not be issued on the judgment. The latter rule was made absolute and the former discharged. These orders were excepted to and are here assigned for error. The question raised by the assignments of error is whether the defendants are entitled to their special execution for the purpose of collecting, directly from the city of Pittsburgh, the damages awarded them by the jury; or whether, after the damages have been determined by the court and jury, according to the course of the common law, the record, including the finding, should not be remitted to the Court of Quarter Sessions for further proceedings, in accordance with the law regulating the assessment and collection of benefits and the payment of damages.

It is contended by the plaintiifs in error that the several acts on the subject must be construed together; that nothing more was intended by the Act of 1874 than to give the party aggrieved the right of trial for the purpose of having his damages determined by a jury, instead of by viewers, or by the court; that when this has been accomplished, it becomes the duty of the Court of Quarter Sessions, with the aid of viewers or otherwise, to proceed and finally adjudicate all questions of benefits and damages, except so far as they may have been settled by verdict and judgment of the Common Pleas. It appears to us that this is the only way in which the harmony of the system can be preserved. The theory on which the legislation on the subject of opening streets proceeds, is that the advantages or benefits,to be derived from the opening, exceed the damages that will be sustained; and that sufficient benefits will be found, assessed and collected to pay all damages. If this should prove not to be the case, the city would of course be liable for the deficiency. The primary fund, however, out of which damages are intended to be paid, is that raised by the assessment and collection of the benefits. Formerly, under the proviso to the first section of the Act of January 6th 1864, the street could not he opened, or private property taken for street purposes until the benefits and damages were determined and the latter paid; but, as we have seen, the supplement of March 20th 1878, provides for giving security in case the city desires to take possession and open the street before the damages and benefits are assessed. Security was given in this ease; and, if the record is remitted to the Quarter Sessions for the purpose of completing the assessment and handing it over to the city attorney for collection of benefits and payment of damages, and the damages awarded to the defendants in error are not thus paid, they will have recourse on the bond filed in the Quarter Sessions for their benefit. It appears to us that the construction contended for by the defendants in error would lead to great difficulty and confusion, if not to the destruction of the entire system. If one party claiming damages, may, as soon as he obtains a verdict and judgment, proceed by execution to collect the amount directly from the city, all may do so, and the result might be that the city would be required to advance all the damages occasioned by the opening of streets, &e. This was never intended.

We are of opinion that the record should be certified to the Quarter Sessions, so that the assessment may he completed and handed to the city attorney for the purpose of collecting the benefits and applying the same to the payment of the damages awarded to the defendants in error and others.

The latter clause of the judgment of this court on the former writ of error is not in entire harmony with this view of the case. The record was ordered to be remitted to the court below for execution.” This was done for the reason that no question was then raised as to the propriety or necessity of further proceedings in the Quarter Sessions. It can be amended by striking out the words “ for execution,” and this may be considered as done.

The order of the Court of Common Pleas awarding the special writ of execution is reversed and set aside, and the order discharging the rule to show cause why the record and proceedings should not be certified to the Court of Quarter Sessions is also reversed, and the rulo reinstated; and it is ordered that the record be remitted to the court below for further proceedings.


author: Mr. Justice Woodward

text:
    City of Pittsburgh versus Biggart, Administrator.
    Under the provisions of the 64th section of the Act of May 4th 1864, cities and counties are required to provide suitable armories for the militia organizations resident therein and for the rent thus paid they are entitled to indemnity out of the brigade fund.
    November 10th 1877.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1877, No. 126.
    Assumpsit by F. C. Biggart, administrator of Body Patterson, deceased, against the city of Pittsburgh, for a balance of rent due for the occupation of a certain building as an armory by a battalion of the state militia resident in said city.
    The facts will he found stated in the opinion of this court.
    The court was requested to charge the jury to find for the defendant, for the following reasons :—
    1. Because by the provisions of the 64th section of the Act of 4th May 1864, under which plaintiff claims to recover, it was necessary that the mayor and councils should act in the manner which they are required by law to do, in order to perform the functions cast upon them by said section for the state, and that there has been produced no evidence whatever, that the councils of the city of Pittsburgh, as such, ever took any action with reference to the contract in controversy.

      2. That said section of said Act of Assembly simply contemplated that the mayor and councils should act for the state in the making of the contracts, and provides expressly that the rent of the rented armories through this medium should be paid out of the brigade fund, which is furnished by a state tax and expended by the state through a board of militia officers, as provided by sect. 99 of Act of 4th of May 1864, and 6th section of Act of 7th April 1870.
    The court refused, and instructed the jury that, if they believed the evidence of plaintiff, to find a verdict in his favor.
    The jury so found, and the defendant took this writ, assigning this instruction for error.

      Thos. S. Bigelow, for the city.
    — The 64th section of the Act of 4th of May 1864, Pamph. L. 234, contemplates the performance of a duty by two subordinate state agencies, viz.: counties and cities. In the first instance the county commissioners are directed to act for counties, and in the case of cities, it expressly states that the mayor and councilmen shall act for the city, not that the mayor shall act separately and independently of the councils, or that a sub-committee of the councils, without authority from the body itself, shall act for councils with the mayor.
    It is submitted, therefore, that the mayor and the councils should have acted conjointly, the mayor by his official signature, and the councils by an ordinance properly passed for that purpose, before the duty in renting the armory in controversy could have been properly performed in such manner as to create any binding obligation or enforceable contract.
    The militia organization was created for the protection of the citizens of the whole state, and it was never contemplated that any particular city or county should bear more than its equal proportion of the burden of maintaining it. The act provides that the rent for the armory should be taken out of the brigade fund, and the plaintiff must look for his rent to that fund.

      Thomas M. Marshall, for defendant in error.
    — According to the position taken by the plaintiff in error, a party renting a building to the city for an armory is remitted to the state for the payment of the rent. Surely such was not the remedy contemplated by the act. And if the city is in default in the collection of the militia tax, from which springs the brigade fund, there would then be no recourse for the lessor.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

By the 64th sect, of the Act of the 4th of May 1864, it was directed that “ the commissioners of counties, or the mayor and councilmen of cities” should “provide for each company of militia within the limits of their respective places, a suitable armory, or place of deposit for the arms, equipments and equipage furnished by the state, * * * the rent of which armory shall be paid out of the brigade fund.” Under this statutory provision, an application for quarters was made to the mayor of Pittsburgh on behalf of a military organization, described in the testimony indifferently as a ‘•'company” and a “battalion,” known as the .Du Quesne Greys. The mayor referred the application to the police committee of the city councils, and three members of that committee were appointed a sub-committee to make the required selection. They concluded an arrangment with Rody Patterson for the occupancy of the second and third floors of a building on Fourth avenue for three years, at an annual rent of eighteen hundred dollars. The premises were occupied by the organization throughout the term. Rent was paid for one year, and this suit was brought to recover the arrears.

It is shown by the evidence that the sub-committee reported to the police committee the agreement they had made. But there is nothing in the paper-books tending to prove that any action was taken by the city councils. They neither authorized nor ratified the agreement; and it does not affirmatively appear that the right to bind the city by their contract was within the scope of the police committee’s powers. It was insisted on at the trial and in the argument hero, that on this ground of the entire failure of evidence of participation by the councils, the plaintiff could not recover. If it were clear that the action was on the express contract, the view of the counsel might be sustainable. But for aught that appears it may have been brought for the use and occupation of the premises. All that the docket entries set out are the issuing of a summons in case and the filing of a plea, without reciting it or indicating its character. Ample evidence that possession of the rooms was taken and retained for three years was produced. Some of the witnesses testified to facts from which the jury could infer that the possession was of a kind to give it public notoriety. No objection was made during the term on behalf of the city to the agreement the police committee had entered into. Eighteen hundred dollars on account of the rent were paid out of the brigade fund to Mr. Patterson. And above all, the organization was legally entitled to an armory which the city was legally bound to provide. Assuming, in the absence of the pleadings, as it is due to the judge who tried the cause to assume, that the nature of the action was such as to warrant the submission of the facts to the jury, it was not error to charge that if the plaintiff’s evidence was believed, he was entitled to a verdict.

As another ground of defence, it was urged that the Act of 1864 made the mayor and councils the mere agents of the state in contracting for the armory, and that no liability for rent beyond the amount to be realized from the brigade fund, could be charged on them. But the city officers were required to “provide” an armory. They could do this by leasing, purchasing or erecting a proper building, or by appropriating to military use some building belonging to the municipality. They would be entitled to reimbursement out of the brigade fund in either case. That was a source of compensation to which the act certainly could not have intended to relegate the lessor. To do that would be to cast the duty of providing the armory not on the city, but on him. This “brigade or county military fund,” as it is described in the Act of the 7th of April 1870, is made up of taxes duly assessed, collected by the officer who collects the general taxes, and paid into the county treasury to await the order of the board of officers of the proper brigade. Its amount can be readily ascertained, and information as to the extent of the demands upon it can always be furnished by the members of the military board. With such means of knowledge there should be no embarrassment in securing adequate provision of armories for their military companies by the municipal authorities. Their expenditures can easily be made proportionate to the amount the law has dedicated to their reimbursement. But if they provide accommodations for any organization by contract with an individual property-owner, they are bound to comply with its stipulated terms. The brigade fund was designed to be an indemnity to them, and not means of payment within the property-owner’s reach. Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Pollock versus Ray.
    1. Claims against the estates of decedents, resting on mere oral testimony of declarations and admissions of the decedent are very dangerous, and not to he favored by the courts.
    2. P. brought her action in 1873 to recover for services rendered decedent, with whom she alleged she had a special contract, by which payment for her services was postponed until his death. P. left the house of decedent in 1861 and the latter died in 1872. The declarations of decedent on which the alleged contract was founded, in effect, were, “ we intend to do as well by her as by our own child“ if she lived after him he would do well by her at his death“ he intended to do well by her, and at his death would make her as good as an heir.” P. did not agree to remain or stay. Held, that the evidence of a special contract was entirely insufficient, and the question ought not to have been submitted to the jury.
    3. The court below admitted evidence of the amount of the estate of the decedent at the time of his death, and instructed the jury that “ if the decedent promised to do as well by her as by his own child, his meaning might be that he designed to put her on an equality with his own. In this view we have received evidence of the value of the decedent’s property, and leave it to you to say what plaintiff should have, regarding what decedent s child might have received as the only heir of the father, if he had survived him.” Held, that the admission of this testimony was improper and the instruction erroneous.

      November 12th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, of Washington county: Of October and November Term 1877, No. 18.
    Assumpsit by William Ray and Elizabeth, his wife, in right of the wife, against Sarah A. Pollock, executrix of James Pollock, deceased, to recover for services rendered the decedent in his lifetime by Mrs. Ray as a domestic servant and housekeeper.
    The action was brought on the 26th of June 1873, and came on for trial in 1876.
    The narr. averred that on the--day of May 1858, James Pollock, the defendant’s testator, agreed with the said Elizabeth Ray, that in consideration of her services then rendered and to be rendered by her to the said decedent, he would provide for her at his death out of his estate, the same as he would for his own son ; meaning thereby, that she, the said plaintiff, should take and receive out of his estate a child’s share for the services aforesaid. Yet the said decedent, in violation of his said agreement, made no provision whatever for plaintiff; and the defendant in this suit, his executrix, since that time has neglected and refused to pay or compensate the said plaintiff in any way for said services according to the promise of her said testator, although the compensation of said plaintiff under the aforesaid contract would and did amount to the sum of $10,400.
    Defendant pleaded non-assumpsit and the Statute of Limitations.
    At the trial, before Acheson, P. J., it appeared that Mrs. Ray was born of poor parents who resided on the land of Pollock; when she was about twelve years old he took her into his family — this was in the year 1836, and with the exception of nine months’ absence in 1850 or 1851, when she went to Allegheny city to learn a trade, she continued to live with him till the spring of 1861. In the fall of 1857 she married her present husband, William Ray, who was employed after his marriage by the decedent and lived with his wife in the family of Pollock, till March 1861, when they went to reside in a tenant house on his farm. Pollock was thrice married. He had but one son, by his second wife, Hannah. She died in 1857, and from that time till Mrs. Ray left in 1861, according to the testimony of Mrs. Bilderback, Pollock’s niece, she was his housekeeper and had the sole charge of his domestic affairs. The decedent married his third wife in that year and died in the spring of 1872. Nathaniel Pollock, his only child, died before him, in 1870. It appeared that Mrs. Ray was taken into the service of the decedent without any definite arrangement as to the compensation she was to receive or as to the time or terms of payment. In support of the alleged special contract between the decedent and Mrs. Ray, the plaintiff relied upon the declarations made by decedent in his lifetime as detailed in the testimony of the following witnesses: — ■
    Jane Gordon. “ We intend to do as well for her as we do for our own child.” * * * “If she lived after him he would do well by her at his death.”
    Elizabeth Ayers. “ He would do well by her, or he would pay her wages ; he intended to leave her and do as well by her as his own; he intended to do well by her, and at his death he would make her as good as an heir; he did not use the word ‘ will’ or ‘ heir;’ he said he intended to leave her and do as well by her as his own ; heard him say so more than a dozen times.”
    The plaintiffs followed the testimony of Mrs. Gordon and Mrs. Ayers with the offer to prove by Douglass Gerry “ that James Pollock, the testator, at his decease was the owner of two farms, one of about two hundred acres, and the other one hundred and fifty acres, and to prove the value of the same for the purpose of fixing a standard by which the jury may estimate the damages for the breach of contract.
    This testimony was admitted under objection and exception.
    The second and third points of defendant, with the answers of the court, were:—
    2. The testimony of Jane Gordon that Pollock said in 1858 that “ he intended to do as well by her (plaintiff) as he would by his own child — that if she lived after him he would do well by her at his death,” and the testimony of Elizabeth Ayers that Pollock said that “ he would do well by the plaintiff, or would pay her wages,” and that he “ intended to leave her and do as well by her as his own” do not amount to such clear and certain proof as the law requires to entitle the plaintiff to recover.
    Ans. “ We must refuse this point, leaving the jury to determine under the instructions we have given them whether the plaintiff is entitled to recover.
    8. This being an action brought after Pollock’s death to recover wages for services rendered to him more than ten years before his death, it should be clearly made out by direct and positive testimony; and the testimony offered by the plaintiff is not sufficient in law to entitle her to recover.
    Ans. “ We^affirm so much of this point as relates to the kind of testimony required to support the plaintiff’s claim ; but if the jury find that the decedent did agree to compensate the plaintiff at his death as proven, we cannot say she is not in law entitled to recover.”
    The court, inter alia, charged:—
    “If Pollock settled with the plaintiff before his death for her services, she would have no claim now against his estate. If he did not, she could not still recover unless she has satisfied you that her compensation was deferred till his death; but, if you are so satisfied, the question would be, what ought she to have ? Not simply the wages the law would give her upon an implied contract, but what the decedent ought to have given her according to his promise. If he promised to do as well by her as by his own child, his meaning might be that he designed to put her on an equality with his son Nathaniel. In this view, we have received evidence of the value of the decedent’s property, and leave it to you to say what the plaintiff should have, regarding what Nathaniel might have received as the only heir of his father, if he had survived him.”
    The verdict was for the plaintiff for $500. A motion for a new trial was afterwards overruled, and judgment entered on the verdict. The defendant then took this writ, assigning for error the admission11 of the above-mentioned evidence, the answers to the points and the portion of the charge noted.

      Boyd Crumrine and D. F. Patterson, for plaintiff in error.
    The alleged agreement with the decedent had none of the marks of a contract: Neal v. Gilmore, 29 P. F. Smith 421.
    Thompson v. Stevens, 21 P. F. Smith 161, and Graham v. Graham, 10 Casey 475, differ from this case. The declarations in the former case were to the effect that, if the plaintiff “ would stay with him as long as he lived he would provide and give her plenty after he was gone, so that she need not to work,” and, in the latter, “ if they would go and live with him until death he would give her as much as any relation he had on earth.” These promises were made directly to the parties, face to face, and they did live with those who made the promises until their deaths. Here there was no mutuality of obligation ; no condition to be performed by plaintiff; nothing, in fact, but a declaration of intention on Pollock’s part.
    The testimony as to the value of the decedent’s estate at his death was inadmissible; Graham v. Graham, 10 Casey 475; Neal v. Gilmore, 29 P. F. Smith 421.
    There was no such evidence of a contract as should have gone to a jury: Bush v. Bush, 9 Barr 262; Thompson v. Stevens, supra; Neal v. Gilmore, supra; Jordon v. Dutton, 1 Phila. 437.

      Braden & Miller, for defendants in error.
    — There was sufficient evidence to warrant the finding of the jury: Graham v. Graham, supra; Thompson v. Stevens, supra; Cottrell’s Estate, 2 W. N. C. 83. There can be no distinction, as insisted, between a promise made before the services are rendered and one made after they are rendered: Snyder v. Castor’s Adm’r, 4 Yeates 353.
   Mr. Justice Sharswood

delivered the opinion of the court, January 7th 1878.

The main question in this cause is whether the plaintiff below gave sufficient evidence of a special contract by which payment for her services was postponed until the death of the decedent, James Pollock. The services for which she claimed to be paid were rendered to him before 1861, when she left his house. Of course, if there was no such special contract as alleged her demand was clearly barred by the Statute of Limitations.

Claims of this character against the estates of decedents, resting on mere oral testimony of declarations or admissions, are very dangerous, and ought certainly not to be favored by the courts. “ The danger attendant upon the assertion of such claims requires, as was said by Chief Justice Gibson, in reference to a somewhat similar contract, that a tight rein should be held over them, by making the quality, if not the sum of the proof, a subject of inspection and governance by the court, and by holding juries strictly to the rule prescribed.” Per Strong, J., in Graham v. Graham’s Ex’rs, 10 Casey 481.

We think that both the quality and sum of the evidence in this case were entirely insufficient. The question ought not to have been submitted to the jury. All the declarations proved were only indicative of an intention to leave the plaintiff a legacy — to provide for her by will. Mrs. Gordon testified that Pollock said: “We intend to do as well by her as we do by our own child.” He said, “if she lived after him he would do well by her at his death.” Mrs. Ayers testified: “He said he intended to leave her and do as well by her as his own.” “ He said he intended to do well by her, and at his death he would make her as good as an heir. He said he would will it; did not use the word ‘will’ or ‘heir;’ he said he would do as well by her as his own; that is what he said. He just said he intended to leave her and do as well by her as his own.” “I heard Esquire Pollock say he would do well by her, or he would pay her wages.”

If the declarations had been to the effect that if the plaintiff would remain with him until his death he would then do well by her or pay her wages, there would be some plausibility in the contention that there was a mutual contract; she to serve him until his death, and he either to provide for her by will or pay her wages. It might possibly have been sustained under the case of Thompson v. Stevens, 21 P. F. Smith 161. This was not, however, pretended to have been the contract. Had she remained until his death it might perhaps have been implied. But in point of fact she left his service ten years before his death. There was no engagement on her part to remain a day. She might have left immediately and her case would have stood as strong on the evidence as it is now. There is not a scintilla of proof that she assented and agreed to postpone her claim until his death. Had she commenced an action, in 1861, for wages then claimed to be due, it would scarcely be contended that the evidence given upon this trial would have prevented her immediate recovery.

There was manifest error in the admission of the evidence as to the amount of the estate of the decedent, and in that part of the charge in which the court instructed the jury, “ if he promised to do as well by her as by his own child, his meaning might be that he designed to put her on an equality with his son, Nathaniel, In this view we have received evidence of the value of the decedent’s property and leave it to you to say what plaintiff should have, regarding what Nathaniel might have received as the only heir of his father if he had survived him.” As Mr. Justice Strong has said, in Graham v. Graham’s Ex’rs, 10 Casey 475, “ what loss is the result than the establishment of a parol will ?” “ It is a palpable error to say that the damages are to be regarded as a debt or liability of the estate. They are a distributive share and are claimed and recovered as an equivalent for an inherited portion or a legacy. If they are the fruit of a legal liability of the decedent, then the rule which the plaintiff invokes leads to a still greater absurdity than even a parol will; for under the contract which she sets up, she is only entitled to a share of what remains after all legal liabilities are discharged, and if those liabilities absorb the whole estate, she is entitled to nothing. The extent of her right varies with the residuum of the estate and is incapable of measurement until the residuum bo ascertained; there is no possible meter for it.” It is clear that if the plaintiff had succeeded in making out a clear and positive contract between her and the decedent that the payment of her claim should be postponed until his death, all that she could have recovered would have been what she was entitled to on a quantum meruit when she left his service.

Judgment reversed.