The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-10-07

tract Under Certain Conditions.
other Important Measures Dealt
with.
Both branches OF council last night
agreed to allow the property owners on
Providence road and North Main ave
nue., between Jones street and the city
line, to enter into q private paving
contract, providing the work shall be
done by the contractor engaged under
the ordinance now in litigation and
that the property holders and COntrac-
tor shall absolve the city by written
agreement from all liability under the
original contract.
The matter came up in select coun-
Gil i'm a resolution introduced by Mr..
Ross directing the city engineer to fur
nish Controller George Mcdonald with
lines, stakes and such information as
may be necessary for the paving of
Providence road and North Main ave-
nue., upon the property holders agree
ing to pay the assessment, notwith-
standing what the outcome of injunC-
tiun proceedings may be.
Mr.. Sarderson offered as an amend
ment the resolution allowing the prop
erty holders to enter into private con-
tract If stipulated, in addition to
what is mentioned above, that no block
be included in the contract unless
every property holder thereon signs
the prescribed release.
Mr.. Roche seconded Mr.. SandersDn's
motion to adopt the amendment and
presented for the consideration of
council an opinion from City Solicitor
Mckinley calling attention to the in
junction proceedings: Characterizing
as dangerous to disregard the litiga-
ton, and advising, in line with Judge
Starrick's opinion, in a similar case
from this city (Barnes VS.. City of
Scranton), that municipal officers
should learn to follow the plain, spe-
Cifc provisions of the law" To adopt
a measure such as Mr.. Ross presented
would be liable to mulct the city for
the whole cost of the pavement
The opinion follows in full:
CITY SOLICITORS OPINION.
To the Select and Common Councils, City
of Scranton
Gentlemen: / deem 1t my duty to sub
init to you "a statement of the legal status
of the project toNpaVe North Main ave-
nue. and Providence road The COnsum-
| nation of this great Improvement would
be a gratifying addition to the many cvi-
dences of substantial developments which
this city has had; bat it must be effected
| in the way and after the manner that the
| law contemplates such improvements
| shall be made.
The contract with George Mcdonald Tor
| this pave was executed on August 10, 1898.
| on August %, 1898, suit in equity was
! Instituted by Charles S. Lowry, who
| named the city of Scranton and George
Mcdonald as defendants. The bill as
| filed attacks the validity of the ordinance
| in pursuance of which the contract was
made, and asks the court to issue an in
junction restraining the said defendants
from filing liens against your orators
property or in any manner proceeding
| under the authority Of the ordinance
above set forth to collect from: your or
ator any sum of money in payment for
| the improvement as above set forth, and
| to restrain the said contractor, George
Mcdonald, from digging up. obstructing
| or in any manner interfering with the
| stree: in front of your orators prop
| erty." All owners of abutting property
along the line of the proposed pave will
| be affected by the decision in the Lowry
case Notwithstanding they are not parties
| to the bill.
| An answer, on behalf of the city was
| filed on September l6 1895 Equity court,
| in which cases OF this nature are heard,
| will not sit until the week commencing
| November I, 1895 But recognizing the
| near approach of weather unsuitable for
paving, every effort was exhausted to
| have the case disposed of at once, but
| without avail. ON October l. 1895, court
| ordered MIR. Lowery to demur to the an
| swer of the city or reply thereto within
ten days, or in default thereof replication
| to be entered by the prothonotary. III
this step should result favorably to the
| city, the case could then be heard at any
! time convenient to the Judges
VERY UNWISE POLICY.
1t is now suggested by owners of prop
| erty along the line of the proposed inn
| proVcment that councils enforce the pro-
| visions of the contract and instruct the
| city engineer ITO assume direction and
| supervision of the work. This disregard
| of the pending litigation would be a Vc.y
| unwse policy for the city to pursue. If
| she assumes such course, she does it
| at the peril of becoming liable for the
| cost of the entire pave amounting TO
| about $50, 900. If the ordinance be declared
| by the court To be legal, then the eN-
pense Of the pave will be assessed To and
| borne by the property owners along The
! line of work. If it should be declared il
| legal, and the city authorities had direct
| ed the work TO be done in the face Of the
suit, the municipality would be liable for
| the entire cost. In such an event, in
stead of the expense being paid by those
| who reap the immediate benefit, as is con-
| templated by the law under which the
| ordinance is drawn, it would be charge
| against all the taxpayers of the city, ana
would be an unWarranted burden upon a
| large majority of citizens who derive no
particular benefit from it..
| conclusion is well settled, one of the
more recent cases being against the city
of Harrisburg, decided by the circuit
| court of the United States and re-
ported in United States supreme court
reports, book Al, page 800, in when case
the city was obliged to pay an amount
close to $4,000. Also, in the case ul
| Barnes against the city of Scranton, re-
ported in Pennsylvania state reports, book
! ll7, page i6l, the same question was
"Sed upon. This was a matter concern.
l.- sessments for the construction ut
the three main sewers. Some assessments
had been paid by abutting property own
ers before the contest was instituted; but
as result of the action, all of the un-
paid balance was placed upon the city
Chief Justice Steritt, in delivering the
opinion of the supreme court, said: eli
is an easy matter to follow the plain pro.
visions of assembly, and the sooner mu.
nicipal authorities realize the necessity
of doing so, the better it will be for al
concerned. When this is done, less of oul
time and the time of the local courts will
be necessarily consumed i'm attempts tc
correct ineXcusable blunders."
ONLY SAFE COURSE.
The proposition Of some OF the abuttina
owners along Providence road aud Nortf
Main avenue 10 sign an agreement tc
pay the cost Of pave in front of their re.
spectiVe properties does not materially
alter the situation. The act of assem-.
| nIY nrnNilns a ananlnc ANau of rnnIiulnn q