The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-07-24

appellant, against II. r. Koehler, was
yesterday forwarded to the prothono-
tary. The validity of the foot front
rule is fully sustained the conclusion
of the court being expressed at the end
Of the opinion in the following Ian
guage:
'"The city engineer made the assess
ment in strict accordance with law,
and. as a result. the property of ap-
pcllee was assessed in the sum of S2S6,
that amount being in proportion to the
number of feet which his property
fronts upon the street The jurisdic-
tion of the city authorities under the
admitted facts of this case cannot be
questioned, and there being no allega-
tion of fraud or defective workmanship.
or mistake in the computation of the
engineer, their assessment must be re-
garded as conclusive"
Former city Solicitor \. A. Vosburg,
who represented the city both before
the Superior and the Supreme court, in
the successive appeals from Judge
Archbald's decision. said to a Tribune
man that if the contention of Koehler
had prevailed thousands of dollars
would have been lost to the city, as
assessments have been made for years
u
them are as yet uncollected.
HIS POSITION SUSTAINED.
II am glad to see" said Mr.. Nosburg.
that my position is sustained by the
Supreme court in every particular.
have always held that the assessments
made by the city authorities were only
subject 10 legal attack upon the ground
of fraud, or, possibly, for defects in the
~ork. believe. however. that the foot =
front rule is not a tapc-linc rule. In
other words. I am of the opinion that
,he proper authorities have legal
right, in their discretion, to allow for
exceptional conditions. For example. il
one side of street was bounded by a
oublic property not subject 10 assess
mcnt for municipal purposes, the as
sessing officers would have right to
apportion the cost among all the prop
erty owners along the improvement
which would have been assessed
against the property which is exempt
from assessment.
This is upon the ground that the
property owner is benefited. not mere
" by the little strip of pave in front
his own property, but by the entire
Improvement, treated as n whole. The
equation of these exceptional cases is
eft, however, to the discretion of the
ity authorities, and their wisdom. or
ack of wisdom, in exercising this dis
cretion is not open to attack in the
courts"
This decision dsposes of long ant
1rotracted litigation. in the conduct Of
which Mr. Kochler was ably represent
ID by Attorney I. II. Burns. The opin.
on follows:
THE OPINION.
The city Of Scranton paved Mulberry
street with sheet asphalt. and assessed
the cost upon the abutting property
owners The assessment was laid with.
out regard to the number of square
yards of pavement in front OF any par,
ticular property, but was made upon
pro rata basis, which was ascertaineC
by dividing the entire cost of the i'm,
provement in proportion TO the number
Of feet of property fronting on the
street.
Immediately in front of the defend
ants property a street railway haC
laid its tracks, and paved that portion
of the street so occupied by it. The eff
feet was TO reduce the amount of pav,
ing required to be done by the city, a
that point. For this reduction the de
fendant claimed he was entitled Il
divided the whole cost of paving III,
street among the total property front,
age.
Upon a case stated the learned cour
below held that the basis for the as
sessment thus adopted by the city wa!
not correct. Judgment was accordingl,
entered for the amount admitted to b,
due by the defendant and upon appea
by the city to the Superior court, thi.
Judgment was affirmed.
While the defendant in this case wal
not one of the petitioners for the i'm
provement. yet il was asked for by :
majority of the property owners alonl
the section of the street TO be improved
and the petition was for the payemen
as whole and the ordinance wa,
based upon and followed the petition
The improvement was constructed as ;
whole from one end to the other.
WEIGHT or AUTHORITY.
The learned court below found tha
the weight of the authority, outside IN,
state of Pennsylvania, was in favor q
the foot front rule of assessment, ac
cording to the benefits derived from
the whole. But he seemed to hc con
strained 10 hold otherwise in this case
by former rulings of this court whicl
he deemed controlling, and, therefore
entered judgment upon a basis OF TN
supposed cost of the paving immedi
ately in front Of the defendants prop
erty. We are not, however able /,
draw, from the cases cited. the sam
conclusion as that reached by the tria
court in this case.
In McCunigle VS.. Allegheny, 4 Pa
llS, the improvement was upon a stree
bounded upon one whole side by mari
property the title to which was i'm IN
city, subject 10 the right of common
In the owners of in lots. The Act a
Assembly under which that improve
ment was made, authorized IAN euua
assessment on the foot front boundinl
on said street" 1t was held that IN
property on the east side, the title he
ing In the city, was not subject to as
sessment, and that the whole cost mus
be collected from the properties abut
ling upon the other side of the street,
But 1t Is carrying the effect of tn
decision in that case too far to hol
that 1t Is authority for the proposition
that the assessment upon each prop
erty must be limited TO the cost of III
work done Immediately in front of il.
In Erie City VS.. Butler, 120 Pa. 374
this court entered judgment, for wan
ef sufficient affidavit of defense. upo
the averments, which set forth that IN
work was not well done, nor accordin
10 contract. but which did not rails
any question as to the manner O
making the assessment.
ALLEGATIONS TOO VAGUE.
And in Pittsburg VS.. Mcconnell. IA
Pa, 1853, judgment was also entered 70
want or sufficient affidavit of de
Tense upon the ground that the allie
cations were too vague and unsatisfac
Tory to carry the case to the Jury.
The case OF Harrisburg VS.. Baptis
tbe Pa. b28. was similarly decided. /
none or these cases was the manner @