Weekly Notes of Cases. VOL. III.] THURSDAY, MARCH 15, 1877. [No. 24. Supreme Court. Oct, & Nov. '75, 300. Oct. 6, 1876. The approval of the councils was obtained, the commissioners elected, and the paving done, strictly in accordance with the provisions of the Act. Bonds were issued to the amount of $356,500, and after the completion of the entire work, the total cost was assessed equally per foot front on the adjacent properties. The defendant owned property with a frontage of 108 feet on the avenue, on which the assessment amounted to $1073.84. A lien was filed for that amount against the property, on which lien this suit was brought. The line of the said improvement ran, in part, through what is called 1870-the rural or suburban portion of the city, and the district, as shown by an annexed plan. defendant's property was situated in such rural Seely v. City of Pittsburgh. Constitutional law-Act of April 2, Frontage method of assessing cost of paving and similar municipal improvements-Unconstitutional when applied to property in suburban districts-City of Pillsburgh bonds The method of assessing the cost of paving and other similar municipal improvements, in proportion to the frontage of property on the street improved, although sustained, as to closely built up portions of a city, by a long line of decisions, is, when applied to property in suburban districts, in derogation of the constitutional rights of the property holders. The Act of April 2, 1870 (P. L. 796), is unconstitu tional in so far as it attempts to apply this method of assessment to property in such suburban districts. It was agreed in the case-stated that if, under the above state of facts, the Court should determine that the said assessment was not in derogation of the defendant's constitutional rights, judgment should be entered for the plaintiff for the amount thereof, with interest and costs; that otherwise judgment should be entered for the defendant for costs; and that either party should have the right to take out a writ of error to the Supreme Court. The Court entered judgment for the plaintiff on the case-stated. The defendant thereupon took this writ, assigning for error the judgment Error to the Court of Common Pleas No. 2 of of the Court. Allegheny County. This was a sci. fa. sur municipal claim, brought by the City of Pittsburgh against C. B. Seely. A case-stated was submitted to the Court, setting forth the following facts: The Act of Assembly of April 2, 1870 (P. L. 796), entitled "An Act to provide for the improvement of Penn Avenue and other avenues and streets in the City of Pittsburgh," and the supplements thereto of Feb. 1, 1871, and March 2, 1872, provided that a majority of the owners of property fronting on Peun Avenue, between St. Mary's Avenue and the eastern boundary of the city, should have the power to elect, in a manner prescribed, commissioners to control and superintend the paving, grading, etc., of that portion of the said avenue; that these commissioners should determine the kind of pavement, contract for the work, sell city bonds to pay the contractors, and, on the completion of the work, ascertain the entire amount of the bonds so sold and the interest thereon; that this amount should be taken to be the cost of the improvement and be assessed equally per foot upon the properties abutting on the said avenue; that on the failure of any property holder to pay such assessment, the city might file a lien therefor, in the nature of a mechanic's lien, and issue a scire facias upon such lien; and, finally, that the act should not take effect until approved by the councils of the city. M. A. Woodward (J. W. Kirker with him), for the plaintiff in error. The Act of April 2, 1870, is unconstitutional, for it directs the cost of the improvements contemplated by it to be assessed on the propertyholders in proportion to the frontage of their property on the street to be improved. Now this rule, although equitable and expeditious as to thickly settled portions of a city, is, when applied, as in this Act, to improvements in suburban districts, extremely unequal and unjust. The cost of the improvements will often exceed the whole value of the property, thus sweeping away entirely the safeguards thrown around the right of private property by the bill of rights. In re Washington Ave., 19 Sm. 351. contra. The frontage rule has been sustained by too many decisions of the Court, for its constitutionality now to be questioned. Pennock v. Hoover, 5 Rawle, 291. Northern Liberties r. St. Johu's Church, 1 H. 104. City v. Field, 8 Sm. 320. Jan. 2, 1877. THE COURT. It is fortunate for the rights of the people when a case occurs causing the Courts to pause and to retrace the boundaries of delegated powers. Thus the stealthy steps of invasion may be detected and the power denied, ere it be too late and a precedent become fixed beyond judicial control. pay for its opening, grading and paving, can be justified. As a practical result in cities and large towns the per foot mode of assessment makes a just and equal apportionment in most cases." Again: "But it is an admitted substitute only because practically it arrives, as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties." "But this rule, as a practical adjustment of proportional benefits, can apply only to the cities and large towns where This is such a case. The attempt is to apply, the density of population along the street and the here, the frontage rule of valuation of compact small size of the lots make it a reasonably certain city lots, to a rural population, and make farm mode of arriving at a true result. To apply it property and town lots indiscriminately pay for to the country and to farm lands would lead to an expensively paved city highway, under the such inequality and injustice as to deprive it of name of a street, running far out into the country. all soundness as a rule, or as a substitute for a The assumption is that by the addition of exten- fair and impartial valuation of benefits in pursive rural districts to a city, the whole surface issuance of law; so that at first blush every one brought by the legislative power within the sphere would pronounce it to be palpably unreasonable of city taxation for municipal purposes; and cases and unjust." are cited of local or special taxation for local purposes, as justifying this stretch of power. But seeming analogies must not be allowed to lead our minds astray. Fortunately this subject has been examined in several recent cases, leading to a fuller development of the principles at the foundation of this power. Prominently among them are Hammett v. Philadelphia (15 P. F. Smith, 146), and Washington Avenue (19 P. F. Smith, 352). In the early cases the mode of determining the benefits, to pay the damages and the cost of construction, was by actual view and assessment. (McMaster v. The Commonwealth, 3 Watts, 292; Fenelon's petition, 7 Barr, 173; Extension of Hancock Street, 6 Harris, 26.) These were followed in the later cases of Commonwealth v. Woods (8 Wright, 113); McGee v. Pittsburgh (10 Wright, 358); Wray v. Pittsburgh (10 Wright, 365) Afterwards came the frontage mode of equal valuation per foot front. (Schenly v. City of Allegheny, 1 Casey, 128; Philadelphia v. Tryon, 11 Casey, 401; Schenley v. Allegheny, 12 Casey, 57; McGonigle v. Allegheny, 8 Wright, 118; Stroud v. Philadelphia, 11 P. F. Smith, 255.) In none of these cases was there a close examination of the per foot front rule, but it seems to have been assumed as a convenient approximation where the property fronting on the street was of a kind, and not differing much in value. But in Washington Avenue" it is shown that this mode of valuation is but a substitute for actual assessment. It is there said: "So long, therefore, as a law faithfully and reasonably provides for a just assessment according to the benefits conferred, and does not impose unfair and unequal burthens, it cannot be said to exceed the legislative power of taxation when exercised for proper objects. It is on this ground only that assessments according to the frontage of property on a public street to It needs no reasoning to prove the soundness of these views. That the benefits a property owner receives from an improvement can be ascertained only by a reasonable mode of assessment, is plain; and that to measure the fronts of all the abutting properties and divide the cost by an equal charge per foot front upon each, is not an assessment of advantages, but simply an arbitrary mode of charging, is equally plain. Therefore to be just and equally fair to each, it is evident all the owners must stand in like, or in reasonably equal, circumstances; otherwise the charge is an exaction, not a fair assessment. The cases of frontage cited, as far as discoverable, were of city lots in close juxtaposition. The frontage rule, when applied to such cases, is not denied. As remarked in Washington Avenue, "Whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors under oath, it has been so often sanctioned by decision it would ill become us now to unsettle its foundation by disputing its principle." These remarks will enable us to test the case before us. The law under which the proceeding took place was peculiar, and, in some respects, extraordinary. It was passed April 2, 1870 (P. L. 796). A marked feature is that it gives power to a majority of the abutting owners on Penn Avenue, between St. Mary's Avenue and the eastern boundary of the city of Pittsburgh, a distance of about three miles, to elect a commission of five citizens, without any previous ordinance or subsequent control of the city. The only assent of the city required was its approval of the Act before its taking effect. Then the commissioners were to determine the kind of pavement, contract for the work, make requisition on the city for bonds, and sell them to raise money to pay the contractors. When the Avenue was completed, it was to come under the city's control. The commissioners were to ascertain, on completion, the entire amount of bonds sold by them and the interest, and this should be taken to be the cost of the improvement and assessed equally per foot front upon the abutting properties. They were to give notice, and within twenty days might correct errors. After that their judgment became final without appeal. Now, though technically it may be said the improvement was made under municipal authority, because of the general approval of the Act by the city, yet, in fact, the improvement is made by a majority of the owners, the minority nolens volens. It is, perhaps, not beyond the power of the legislature to authorize the work to be done by such a commission, but it will be seen that practically the voice of the property owner who objects to be thus charged with the expense, is not heard even through his representatives in the city councils. The municipal authority cannot even intervene for his protection. Now, without resting a decision on these harsh features of the law, they constitute strong reasons for a rigid examination into the power of the legislature to authorize the frontage rule to be applied to this case. The east end of Penn Avenue, upon which this improvement is made, extends from St. Mary's Cemetery, near the U. S. Arsenal, eastward for about three miles, as shown by the distance upon the plot made part of the stated case; passing in that distance the grounds of several cemeteries and through lands, partly farms, partly large rural residences, partly smaller, and partly the lots of several hamlets and villages which were taken into the city territory. The avenue is a broad woodpaved highway, after the manner of a city street, and its cost, as evidenced by the bonds issued, was $356,500. out in seven or eight years, without a power of self-protection or the control of even their representatives in councils, is not to be viewed complacently. How near the actual value of the improvement approximated the estimated bond cost may be inferred when it is seen that the whole cost was $350,000, and the per foot cost ten dollars. This blending of town and country, of city lots and farm lands, of the residences of the living and the graves of the dead, constitutes a group so motley and discordant, a series so wanting in similitude and uniformity, that the frontage or per foot rule cannot be applied to it. It is so plainly, palpably, and rankly unjust, it must be pronounced no proper or lawful mode of special taxation, but an injustice so rank that it is therefore void as against the right of property as protected by the bill of rights. The ground of this has been so distinctly stated in the Washington Avenue case, it need not be restated here. (19 P. F. Smith, 363) A fixed sum to be paid per foot, without regard to the character, kind, extent, or value of the property, is an exaction, not a just assessment according to benefits. The extent back to which the lien runs (120 feet) merely limits the quantity to be taken, but does not change the kind, character, or value of the property upon which the fixed charge is fastened. But it is said that Seely's lot is in a village, and therefore the foot rule may apply to him. Possibly this might have been the case had the streets of that village alone been improved. But this is not its character. The act assumes to make a wide and costly avenue, extending long distances through rural lands where it is not needed, and to make the cost of the whole the measure of the cost of each owner. It makes a unit of the entire distance, where the per foot front rule obtains and where it does not obtain, While the.cost per foot front, as evidenced by and then divides this integer into fractions of a the map and the charge, was within a small frac- foot; imposing on the defendant his proportion tion of ten dollars, the defendant's lot being of the fractions. Such a mode of charging might 10848 feet front, and his assessment $1073,8, be continued for any indefinite distance over the the bonds which, under the 16th section, were State, and the owner of each lot in every village made the cost of the improvement, were made up through which the line passed be made to pay of the contract price, and the incidental expenses. his per foot charge of the entire route. The The contracts were to be let by the commissioners principle of such a system is wrong, and therewithout supervision, the law providing for no fore cannot be applied even to the village lot settlement of their account, and the expenses owner. If the rural portions of the route be exwere such as might be determined by the commis-empt, as clearly they must be, then must all sioners to be incidental, and subject to no review. others be also, for the system itself is founded on The commissioners were, no doubt, reputable a general error. If this case be examined closely, men, and so far as their personal supervision what is it but a repetition of the Hammett v. Broad went, their duties were performed, no doubt, Street case in principle, differing only in form. Penn faithfully. Yet such a system, which subjects the Avenue, like Broad Street, is a grand thoroughproperty holders to jobbing contracts, and in- fare, designed for the use of the people of the genious expedients, such as men bent upon mak-city proper, where they may ride out into the ing all they can out of their jobs adopt, and to country for pleasure or profit. That it is a great, patent-right claims for wooden streets, which rot useful, public improvement, so long as its wooden pavement lasts, no one will deny. But it is this very | have upon which to base a decision of vast importance both in its principle and the immediate results flowing therefrom. The case, as it appears to my mind, is one in which we ought to have the fullest information. public character for general use, and not for local benefits through the farms and along the cemeteries, which should protect the owners along the route from special taxation. More literally and directly the case is governed by the case of the Washington Avenue, which it resembles closely in form and fact. More than once lately we have had occasion to reprehend that legislation which seeks to cast the burdens of the public on the shoulders of individuals, often bringing ruin on men of moderate means. Such legislation is too often the fruit of designing schemers, to promote their selfish ends. We may therefore say that while the frontage rule is conceded to be a legal mode of assessment when properly applied, it is not to be used as an arbitrary mode of casting the public burdens upon the property of individuals. There is another matter which it is proper to refer to. It is alleged in the counter-statement of the defendant in error, and not denied, "that no property owner along the line of any streets or avenues improved under this system bas in any manner formally objected to these improvements while they were in progress; that the improvements were under the direct and exclusive directions of the persons directly interested, to wit, the property owners; and that should this case be reversed it would practically add over five million dollars to the debt of the city of Pittsburgh." If the fact be that this plaintiff was eagerly clamoring for the benefits of this system, and held his peace while the improvements were in progress, it is an answer to so much of his case as is based upon the allegation of its special hardship. It is idle to say that the improvements referred to were of no benefit to him. Having received the benefit, and having stood by while the improvements were made without interposing an objection, knowing that his property was to be assessed for its pro rata share of the expense, he is not in a position to complain. He would be estopped from doing so in an equitable proceeding. He may not be estopped from setting up this defence at law, but it furnished a persuasive reason why this Court should move with caution, and act only with all the light that can be thrown upon the case. For the reasons given I would quash the case-stated. To prevent any misconception of the facts we may add, before closing, that they come up as a stated case, and not in equity form. If there be any facts to raise an estoppel or other defence in equity, the parties ought to have stated them. No motion has been made to quash the case as defective. The case it elf states "That the line of said improvement in part runs through what is called the rural or suburban part of the city, and the defendant's premises are situated in such rural district. The plan hereto attached is the assessment plan for said improvement, and is made part hereof." The plan referred to includes large tracts of land frouting on the avenue whose lines and measurements noted prove that they are not city lots. For example, St. Mary's Cemetery fronts 1000 feet; Philip Winebiddle's property 1261 on one side, and 2427 feet on the other; the Pennsylvania Railroad Company's land, 1829; then we find many tracts fronting 300 to 400 feet; 400 to 500; 500 to 600; 600 July, '76, 23. Hammett's Appeal. Jan. 13, 1877. to 700; 700 to 800; 800 to 900; and 900 to 1000. The facts of the case, therefore, very distinctly appear, and we ought not of our own motion to quash the case. The judgment of the Court below is therefore reversed, and judgment is now entered for defendant for costs. Opinion by AGNEW, C. J. PAXSON, J., dissents. WILLIAMS, J., absent. Dissenting opinion of PAXSON, J. I do not concur in this judgment. Owing to the meagre presentation of the facts I have found it difficult to come to an intelligent conclusion. It appears from the case-stated that "the line of said im provements, in part, runs through what is called the rural or suburban part of the city, and defendant's premises are situated in such rural district." This bald statement, with a plan that furnishes little practical information, is all we [See Wistar v. City of Philadelphia, ante, 124.] In re Hammett's Estate. Decedents' estates, "settlement of - Exclusive jurisdiction of Orphans' Court-Creditors bound to present their claims or be debarred -Distribution not delayed to await result of suits in common law courts-Notice to creditors-Acts of March 22, 1832, and April 13, 1840. As the Orphans' Court has exclusive jurisdiction of the settlement and distribution of decedents' estates, creditors, as well as legatees and distributees, must debarred from the fund. appear and present their claims in said Court or be The mere pending of an action in a common law Court to establish the claim, does not ipso facto entithe a creditor to share in the distribution in the Orphans' Court. Nor is the pendency of such litigation any reason for suspending he proceedings in distribution to awa.t its result; but the Orphans' Court may direct such temporary delay as may, in their discretion, be necessary to give the notice to creditors provided for in the 20th section of Act of 1832. The Orphans' Court made a decree, postponing "until the further order of the Court," the distribu tion of a large sum of money in the hands of executors, to await the determination of suits pending in common law courts to establish claims which had not been presented before the Orphans' Court. Held, that, while a temporary decree of this nature, to give time for notice to creditors, etc., might be sustained, this indefinite postponement of the exercise of the statutory powers of the Orphans' Court was a trenching upon its own jurisdiction, and was error. following exceptions: "The accountants except to the distribution of any portion of the fund at this time, because it appears that there are large claims against the estate in course of litigation, the result of which, if adverse to the executors, will more than absorb the entire personal estate." The Orphans' Court (DWIGHT, J., delivering the opinion) held that the Orphans' Court and the Common Pleas had concurrent jurisdiction of the claims of creditors against a decedent's estate, and they therefore dismissed Mrs. Hammett's exception, sustained that of the executors, set aside the distribution reported by the auditor, and ordered the accountants to retain the balance in Appeal from the Orphans' Court of Philadel- their hands until the further order of the Court. phia County. (Reported 2 WEEKLY NOTES, 430.) This case was heard in the Court below upon exceptions to the report of an auditor appointed to audit the account and award distribution of the balance in the hands of the executors of Barnabas Hammett, dec'd. The material facts were as follows: Barnabas Hammett died January 22, 1873, leaving a will in which J. H. Campbell, D. M. Fox, and N. B. Browne were appointed executors. In due time the executors filed their first account, which was referred by the Orphans' Court to Thos. Greenbank as auditor. The balance in the executors' hands was found by the auditor to be $84,688.67, one-third of which Robenia Hammett, the widow of the decedent, claimed as her distributive share. No creditor appeared to claim this balance, or any part of it, but the executors called the attention of the auditor to the fact that several suits for very large amounts were pending in the various courts against the estate. Mrs. Hammett thereupon took this appeal, assigning for error the above-mentioned action of the Court. W. A. Porter (with him W. D. Allen), for appellant. It is admitted that the Orphans' Court and the common law courts have concurrent jurisdiction to ascertain the amounts due creditors of a decedent, and to enforce payment out of his real estate or out of such of his personal estate as may not be in the actual custody of the Orphans' Court. But when an executor or administrator has once filed his account, the Orphans' Court has exclusive jurisdiction to settle it, and to make distribution of the balance, and every creditor must appear before the said Court and establish his claim or lose his right to share in the distribution of the particular fund then in hand. Act of March 29, 1832, Purd. Dig. 1103, pl. 4. The auditor reported inter alia: "This balance, under a reference to the auditor to settle the account and to distribute the balance, would, in an ordinary case, be distributed by the auditor among the widow and legatees, because no creditor who remains unpaid has presented and established a claim to any part of it. But taking into consideration the pendency of the numerous suits at law which are brought to the attention of the auditor, he is of opinion, that, although they are not presented as claims upon this fund, and Sergeant's Executors v. Ewing, 6 Cas. 75. it could therefore be distributed without regard G. Bull (with him H. M. Phillips), contra. to them, yet, as a matter of precaution, it would The jurisdiction of the Orphans' Court as to be wise to retain a larger part of this balance in claims against decedents' estates, is concurrent the hands of the executors, after awarding a small with that of the common law courts. Moneys. proportion of the distributive fund to the widow in the hands of executors are trust funds on and legatees, until the adjudication of the next which the widow and heirs have no claim until account. The auditor has therefore made dis- the rights of creditors have been secured. In tribution of one third of the distributive balance." administering such a trust, it would be inequitaTo this report Mrs. Hammett filed the follow-ble for the Orphans' Court, having been informed ing exception: "The auditor has erred in not of large claims against the estate, more than distributing the whole balance of $84,688.67, in sufficient to absorb the fund, in process of litigathe hands of the accountant tion in the common law courts, to hand over the trust fund to the widow and heirs. The executors likewise filed, inter alia, the |