Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-06-10
THE CITY'S POWERS
IN THE OPENING OF DIAMOND STREET
DEFINED BY COUNSEL.

City Attorney Morelnnd Files n Written
Have No Just Cause of Complaint
Going TO the Supreme Court.
City Attorney Moieland yesterday pre-
sented to Select Council his opinion on the
legality of the awards and assessments of
damages made by the Board Of Assessors on
the widening Of Diamond street. The City
Attorney thinks the board has acted within
its powers and that the city has the right to
order the work done.
The report, which was received and or
dered filed without discussion, is as follows:
PITTsBURG, June z, 1890.
To the Select Council:
GENTLEMEN-Aty your last meeting you re-
ferred to me various protests presented by the
owners of property fronting on or abutting
upon Diamond street, demonstrating against
the approval of the report of the Board of
Viewers of Street Improvements in this city.
So far as the special statement of facts is
concerned, have no possible way Of verifying
them. The report of the Board OF viewers
is upon its face perfectly regular, setting out
that all action was taken In accordance with
law.
think we may safely assume that the board
did comply IN every particular with the
requisition of the act of Assembly under which
the work is proposed to be done.
So far as the law of tine case is concerned,
have no reason to change the opinion hereto
fore expressed, namely, that the act of As
sembly of 1889 is constitutional; that the city
under its charter has expressly conferred upon
it the right of eminent domain.
That in the exercise of this power it may
direct 'the opening. widening and straighten-
ing. or extending of any street, lane or alley"
within its corporate limits, and assess the cost
upon the property which may be found bene-
fited.
ALREADY TESTED IN COURT.
have gwen this munlcation the most
earnest and conscientious consideration. Have
had personal interviews with Mr.. Howard on
the subject, and have had consultation with my
associates.
The views thus expressed are strengthened
by the fact that all of the questions of impor-
tance appearing on the face of the protests
were most fully and ably argued in our Court
of Common Pleas No. 2 and were unavailing
in satisfying that court that the points were
well taken.
The case is one of great magnitude, involving
responsibility on all concerned, and which /
certainly appreciate.
Like every case in which Councils direct these
improvements, there is = possibility of at least
a portion of the costs being assessed upon the
city, for. in case of those whose property ''is
taken, injured or destroyed" the right of trial
by Jury is constitutlonally secured and in case
of recovery greater in amount than the dam
ages awarded by the Board of Viewers, this
difference is primarily assessable upon prop
critics which may be found benefited, but If no
such property can be found then upon the city
at large.
This is incidental to every case of public I'm
provement, and is expressly provided for by
law; but to my mind there is no greater prob
ability of such being done in this case than in
others.
think it has Ibeen conclusively established
A1,r.R wrk1 aE ~x1 a1IA
posed is a local benefit, 'in which property is
found sufficient to pay all the costs and ex-
penses."
The contention of the petitioners that the
the city, in such q case as this, is a declaration
that it is for public use, and therefore must be
paid by the public at large, is, in my judgment,
NOT WELL TAKEN.
1t does not seem to me sustainable under the
charter of this city, kindred acts of legislation.
or the authority Of our higher courts. If such
were the case it would be obvious that the rule
which requires properties specially benefited
to pay would be destroyed.
Nothing is more firmly established in this
State than that the assessment In accordance
with the benefit conferred. is cost and ex-
pense of all original public improvement.
All of these questions can be raised and final
ly settled before any serious expense can be
incurred. Those who are assessed with bene-
fits have the right of appeal. those whose
lS ",
and each person the right of raising ali these
constitutional questions.
have reason to believe that appeals will be
taken, in which case further action will be sus-
pended until the question shall have been fully
and finally settled. l am respectfully yours,
WILLIAM e. MoRELAND. City Attorney
Councilman Warmcastle said last evening
that an endeavor would be made to have a suit
brought TO test the legality of the citys position
in time for a final decision by the Supreme
Court when 1t meets here in October. If this is
done and the city is victorious, as is confidently
expected, the work on Diamond street can be
commenced in the spring.