Hand v. Fellows

Citations

• 148 Pa. 456
• 23 A. 1126

Syllabus

<p>[Marked to be reported.]</p> <p>Cities of the third class — Streets—Grading and paving — Acts of May 23, 1889, and May 16, 1891.</p> <p>The act of May 23, 1889, P. L. 288, was passed in order to provide a comprehensive code for the government of cities of the third class and for the regulation of their municipal affairs. Section 10 of article Y of that act, relating to grading, paving or macadamizing of streets, etc., provides that if the improvement consists of grading only, the expenses may be charged, in whole or in part, on the city or on the property benefited, according to benefits. If the improvement includes paving, the expense may be charged, in whole or in part, on the city or on real estate bounding on the street paved, according to the “foot-front” rule. The latter rule, however, it is well settled, does not apply in the rural portions of the city territory. Paving could only be done at the cost of the owners of property in cities of the third class, therefore, within the built-up city where the “foot-front” rule could be enforced. In all other parts of the city it could be done only at the expense of the treasury.</p> <p>The act of May 16, 1891, P. L, 78, is a general act applying to all cities of the commonwealth. It is an affirmative act containing no repealing section or clause, and can have no effect on the act of 1889, unless the system provided by it is so inconsistent with that previously existing as to make it impracticable for them to stand together. In respect to an improvement by grading only, both acts adopt the same basis of liability — the benefit accruing to the property by reason of the improvement. It provides that the grading and paving of streets shall be done at the expense of the property benefited. It reaches the rural as well as the built-up parts of the city. Thus, under both acts, in respect to an improvement by grading, the basis of liability of the lot owner is the same, — the benefit accruing to his property. In the rural