The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-07-15
DECISION IS In
FAVOR OF THE CITY
OPINION OF JUDGE aUNsTER IN
ANDREW SMITH CASE.
It Is to the Effect That Although a
Lien for a City Improvement Is
Not Filed Against a Property an
Action in Assumpsit Can Be
Brought and the Amount of the AS
sessment Collected-Decision Is OF
Great Importance to the City.

yesterday which declares that where
liens for city improvements are defect
i've the city can bring an action in as
sumpsit and recover the amount as
sessed against the property owner.
The case was brought as test and
the decision rendered yesterday by
Judge Gunster is of great Importance
to the city.
While work on section = of the Fifth
sewer district was in progress it was
discovered that liens for the assess
ment had not been filed against the
properties. The time having expired
liens could not then be filed and Con-
tractor Vincent O'Hora was directed
to stop the work of constructing the
sewer, the city having no desire 70 be
compelled to pay move than the share
of the cost of construction assessed
against her by the viewers.
To overcome the difficulty an effort
was made to get the property owners
to waive the expiration of the time for
filing liens but some of them refused
to do so.
City Solicitor Vosburg thought the
property owners could be sued in the
usual manner prescribed for collecting
debts and Andrew Smith, one of the
property owners in the affected district,
allowed the use of his name for the
purpose of making a test. The facts
in the case were undisputed and were
:embodied in the form of case stated
which was argued before Judge Cum
ster Monday. His opinion filed yester-
day is as follows:
JUDGE GUNsTER's OPINION.
This Is an action of assumpsit
brought by the city of Scranton
against Andrew Smith to recover the
amount of a sewer assessment. The
facts in the case have been agreed upon
in a case stated in the nature of a
special verdict for the opinion of the
court, and are as follows:
An ordinance of the city of Scranton
was passed and approved by the mayor,
providing for the construction of a GER
| tain sewer system in said city upon
| Throop street, and other streets in said
| city. The defendant was at the time
| and at the present time is the owner
| of a lot abutting upon Throop street.
In conformity with the provisions OF
| the said ordinance, and according to
| law governing such cases, a contract
| for the construction of said sewer was
| regularly and legally made between the
| city of Scranton and V. II. O'Hora,
| dated May 6, 1899. BY virtue of said
| contract work on said sewer has been
commenced by said V. II. O'Hora.
| Viewers were appointed by common
| pleas court of Lackawanna county at
| No. ia March term, 1898, which said
viewers made an assessment of the
cost of constructing said sewer, and
reported to said court, which was
| finally approved by said court on No
| vember I, 1898. The defendant in the
| case was duly assessed by said view
| ers the sum of $60.13, but no lien there
for was filed on behalf of the city
within six months from the date of the
final confirmation of the said viewers
| report. Then the city brought suit
against said defendant.
| 1t is agreed that if the court be of
the opinion that the plaintiff is en-
titled to recover this assessment by an
action of assumpsit, then judgment is
| to be entered in favor of the plaintiff
in the sum of $30.06 but if not, then
| judgment Is to be entered for the de-
| fendant.
DEFENDANTS CONTENTION.
1t Is contended for the defendant that
| the act of assembly which authorized
the assessment provides for filing a
claim, and a lien and proceeding there
| on, and that this remedy is exclusive
and that no personal judgment can be
| recovered against the defendant while
on the part of the plaintiff it is con.
tended that the act provides for an ac-
| tion at law to recover a general judg-
| ment against the owner as well as g
lien, and scire facias thereon against
the property itself. and that ever
though that no right to recover a gen
eral judgment were expressly given, Il
would exist at common law.
There is no doubt high authority fol
this latter position. Thus in New
Haven VS.. Railroad company, 3S Conn.
423, the act there under consideration
provided that the assessment should b,
a lien upon the property benefited.
was held that the right and power tC
assess were in no way dependent upoI
a lien; that the lien was intended
merely as a security in addition to
proper remedy at law, and that an ac
ton Of debt would lie to recover sucl
| assessment.
So also in the case of the city o
Dubuque VS.. Illinois Central Railroad
company, 80 Iowa &C. it was held tina
an action at law may be maintained
for the recovery of taxes, although tn
legislature has provided for a specia
remedy therefor And Dillon i'm hi
work on municipal corporations lay
down the rule as follows:
when the power to levy the tax /
plainly given the right to collect b.
suit should not be taken to be i'm
pliedly denied unless the intention o
the legislature that the special mod
prescribed should be the only mode
appears with reasonable certainty. |
the special remedy is full and ade
quate, such an intention on the par
of the lawmaker would be more read
lily deduced than under other Circum
stances" Dillon on municipal corpor
ations, sec. 653.
STATE ACT THAT APPLIES.
But we must not be misled by thes
authorities, for questions of this kin
may be controlled by our own Act G
1906, which provides that
I'm all cases where a remedy Is pro
vided, or duty enjoined, or anythin
directed to be done by any act, or act
of assembly Of this commonw ealth, tn
directions Of the said acts shall be d
rectly pursued, and no penalty shall b
inflicted or anything done agreeabl
to the provisions of the common law
such cases, further than shall be neces
sary for carrying such act or acts int
| effect"
In the present case the lien Of IN
assessment and the right to file claii
therefor against the property are aC
mittedly gone. But while this Is,
does not follow that the debt create
| nv the &c opna too