Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-01-24
Claims That Pittsburg Not Only Has
No Street Law, but Has No
Government at Present.
HER CHARTER HELD TO BIZ VOID.
Lawyers and Judges Frame Case for the
Supreme Court as GHide to
Curative Legislation.
HANGING ON THE STREET LAW OF 1864
City CfHeias Deeply Interested but Content to Await
the Outcome.

| of in yesterdays DISPATCH, on bill and
answer, were yesterday heard in Common
Pleas Court No. by Judges Slagle and
| Collier
The purpose of the suits is to determine
what street law, if any, is applicable tc
Pittsburg to-day The arguments were on
bills in equity filed by T. B. Atterbury,
George l. Whitney and T. A. Gillespie,
against the city of Pittsburg and the Depart
ment of Public Works, asking that the con-
tracts for the improvement Of Center and
Lexington avenues and the building of the
Thirty-third street sewer be declared illegal
and void, plaintiffs resting on the decision Of
the Supreme Court that the street act Of
1887 is unconstitutional and void.
Johns McCleve, who is credited with rep
resenting Mr.. Howard, opened the argu.
ment. which lasted the whole day, court re.
naming in session until nearly 4 o'clock.
Counsel for appellants hold that the de-
cision of the Supreme Court in the Bogg.
avenue case entirely struck down tine acts Of
! 1887 and 1889. and that all proceedings un
dertaken by the city under either of them
are void, and possibly that the repeating
clause in the acts OF 1887 and 1889 is left un.
touched, and this would sweep away the
acts of 1871, 1868, 1867, and 1864, and, in
fact, all the prior legislation, leaving the
city without any street laws whatever, and
in any event, the system as ap piled to street
cases would not cover the present proceed.
ings, nor justify the city in endeavoring tc
compel payment.
A Claim That the Charter Is Knocked Out
Counsel further contended that the ordi.
nances on which proceedings were based are
void. because the act of June IA, 1887,
creating the charter of the city, is unconsti.
tutional, because it virtually re-enacts vari.
ous laws applying to city authorities, with
out relating them at length, as required by
the Constitution. Article 3, section 6, was
quoted, as follows:
No law shall be revived, amended or the pro
visions thereof extended or conferred by refer.
ence to the title thereof, but SO much as is
amended d. extended or conferred must be re.
enacted and published at length.
The object of this, Mr.. McCleave said,
was to enable Legislators to act inteiligently.
He held that departments were exercising
powers under the charter, the nature OF
which the majority of the legislators could
not possibly know, and wound up by stating
that the charte- act attempted to confer on
cities of the second class, functions previous.
ly vested in the city of Pittsburg without re-
gard to the constitutional prohibition, and
the act being unconstitutional and void, the
city has no legal form of government, and
has no power to make contracts
For the city, D. T. Watson held city
classification to be constitutional; that the
kind of legislation needed for such cities is
a question for the Legislature. Pittsburg's
charter is valid because it expressly confers
powers enumerated in the act upon the city
and officers chosen.
Something Left by the Supreme Court.
Though the late decision of the Supreme
Court strikes out the Board OF Viewers, con-
tInued Mr.. Watson. it leaves unimpaired
the general power OF the city, and in the
position it would be had the acts of 1887 and
1889 never been passed, and it can fall back
on legislation prior to the adoption of the
Constitution of 1874 Under the act of 1864
the city can have viewers appointed bv the
Quarter Sessions Court and proceed with the
collection of the cost OF public improve.
meats.
w. B. Rodgers thought the chief diff.
! Guilty in collecting cost of improvements
made lay in the act of 1876, which provided
that no ordinance can be passed before the
City Engineer makes estimates of the work
and its probable cost, and preliminary
| assessment of benefits and damages and a
| preliminary assessment and schedule OF
benefits and damages shall have been made
| by the Board OF Viewers. Otherwise, the
ordinance is void. Under the acts of 1881
and 1889 the preliminary assessments were
made by the viewers appointed by the Com.
mon Pleas Court. But, as they had been
stricken down, he assumed that thev were
| de facto officials, and, as estimates had been
made by the City Engineer, the provisions
| of the law were complied with in every case.
The city had proceeded, and the property
| owner had acquiesced, and it was now toe
late to appeal on mere technicality, when
there was a substantial compliance with the
provisions of the act of 1876.
Argument of the City Attorney.
City Attorney Moreland held, regarding
the question of trial by jury on appeal.
from the Board of Viewers on assessments,
that In every instance of improvement it
had been agreed that the benefits were suffi-
cient TO pay the costs. The question was
raised some time ago in all appeal to the
| Quarter Sessions Court from an assessment
OF benefits in the case of the paving OF Tenth
street. 1t was demanded that the proceed
ings be certioraried to the Common Pleas
Court for jury trial, but Judge Ewing re-
fused the demand, deciding that constitu-
tional right of trial by jury does not exist
on an appeal from an assessment for bene-
fits. The case was taken to the Supreme
Court, and Judge Ewing was sustained.
The position of the attorneys for the CITY
was, in brief, that the Boggs avenue case
does not decide that all of the act OF 1887 is
void, but only the machinery for assessment
and collection of cost of street Improvements,
thus leaving intact the grant of power to
open and make streets, and if it is entirely
stricken down with repeating clause in
cluded, then the act of 1864 and prior legis-
lation continues in force.
As stated yesterday, the purpose of the
argument is to give pointers in the manu-
facture OF an act that will stand wear and
tear.
Mr.. Woodward and the Judges had a tilt
occasionally during his argument. He said
the Courts had found that when they got
wrongly started it was difficult to get on the
right track again. He was referring 10 the
decision in the classification dispute, and
intimated the Court was now irving to re-
tract wrong step taken at that time.
Necessities of All Kinds of Cities.
Referring to Mr.. Watson's argument that
classification was necessary TO meet the
wants of certain localities, Mr.. Woodward
held that the general necessities OF classified
and unciassified cities were much the same,
and particular necessity must spring from
manifest peculiarities.