Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1892-03-20
ONE MORE DECISION
Outlining the Scope and De-
filming the Limits~of the
New Street Act.
CITIZENS WHO PROTEST
Must Make Out a Good Prima Facie
Case Before Going to Court.
ADDITIONAL VALUATION SUITS.
Over 800 0leomargarine Dealers Returned
by the Constables.
AN IMPORTANT DAY In THE COURTS.

Judge McClung yesterday handed down
an opinion in the matter of the appeals from
the Board of Viewers on the grading, paw
ing and curbing of Aiken, Negley and STAN
ton avenues and Omega, keystone, Baird
and Lilas streets. The Court dismisses the
exceptions, saying there is nothing to justify
the courts interference, and confirms the
viewers reports.
The exceptions filed in the cases were
numerous, but the argument before the
Court was confed to two questions. 1t was
contended, first: That in cases where money
had been paid under the void assessments
OF the unconstitutional act the viewers
should take no notice of the fact, and give
credit for such payments in their reports.
Second: That on exceptions fled the parties
excepting were entitled to hearing by the
court de novo, and thus without showing
either misconduct or mistake on the
part OF the viewers, without even show
ing that viewers attention had been called
10 the matter embraced in the exceptions,
the broad claim being made that all party
lost bv failing to 60 before the viewers was
the chance of decision by them favorable
TO his claim.
Where Viewers Have Nothing to SaA
1t was further maintained that although
exceptions were based upon matters of fact
outside of the record and even contradicted
by averments Of the report, they need not
be sworn to, or at least a mere formal affi-
davit to their truths was all that was re-
quired The Court SAYS:
: payment made under the void acts can
not be regarded as anything more than so
much money paid by the property owner to
the city in advance to be credited when the
assessment is made. The. viewers have
nothing whatever to DO with it. The city
cannot OF course retain it and compel the
parties who has paid to pay a full assess
ment. 1t must pay it back or give credit for
Il. But We are wholly unable to see how
the viewers have anything to do with the
matter. They have not imposed upon them
the duty. nor are they given the right to in
Cuire rs to such payments. As to the other
position taken, we are there too, compelled
TO differ from the eXceptants. They prac-
tically maintain that the properly owners
can ignore the viewers, and by merely filing
exceptions can throw upon the Court the
burden of making the exceptions de novo.
We cannot Tor a moment concede this.
1t i true the act requires the court to care
fully and strictly supervise the work Of the
viewers. and this We will not hesitate to do.
Ii it is made to appear that they have neg
lected their duty, acted arbitrarily, failed
to hear the evidence or complaints of those
interested. or made material mlSta kes, or
shown incapacity or unfairnesS i'll the per-
formance of their duties, We will not hesi-
tate to correct the report. refer it back to
the board, or appoint another board. But
We cannot do this upon a mere allegation or
certificate, much less can We adopt the prac-
tice which would practically, or might, re-
cuire the court to make the assessment.
Location of the Burden of Proof
The Court then goes on to say that par
ties interested must look after the matter
before the report leaves the hands of the
viewers and if dissatisfied with assess
rnentS, object and give, or offer to give evil
oence to correct the error, and if viewers
decide against them, that the burden is on
them to show errer The evidence of error
must be sufficient to cause the Court to act,
and sufficient TO overcome the presumption
and Justice, to which the Court again saws
il will hold the reports of viewers entitled.
The evidence should be of the existence of
specific facts; must be more than
mere allegation of too high an as
sessment or TOO little damages. The
Court SAYS it should be remembered that the
proceedings in question are upon exceptions
TO the report, not appeals from them. The
report is basis Of the proceedings, and
stands until the exception affirmatively
shows it to be wrong. The propriety OF
this construction, the Court hollis is rem
dered more apparent by the fact that after
the confirmation of the report so far as re-
lates to damages to property, ETC., the
parties are entitled to an appeal and jury
trial
Further discussion, the Court says, is un-
necessary, in view of the recent opinion of
Judge White. The Court adds that it is
apparent that there is nothing before the
Court to justify the interference with the
report. The exceptions are dismissed and
the report is confirmed.