CITY OF HARRISBURG v. JAMES McCORMICK.
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY.
Argued June 3, 1889 —
Decided June 28, 1889.
Where a municipal claim is filed for the cost of street improvements in the built up portions of cities, assessed upon abutting property under *214tbe foot-front rule, it is no defence against tbe claim that the property is but a narrow strip along tbe street and not worth the amount of the assessment claimed: Michener v. Philadelphia, 118 Pa. 585.
Before Paxson, C. J., Gkeen, Williams, McCollum and Mitchell, JJ.
No. 21 May Term 1888, Sup. Ct.; court below, No. 545 November Term 1886, C. P.
On November 13, 1886, a writ of scire facias was issued by tbe city of Harrisburg upon a municipal claim, filed on July 15, 1885, for 1446.05, assessed for water pipe, under the foot-front rule, against an abutting lot belonging to the estate of James McCormick, deceased.
On January 14,1887, James McCormick, one of the trustees of the defendant estate, made and filed an affidavit of defence which averred:
“ The lot of ground against which the lien for water pipe, amounting to 1446.05, is filed, is a narrow, triangular strip, about 31 feet wide at the one end, and running thence along Ninth street, about 405 feet, diminishing in width' until it reaches a point. A part of this land is claimed by the Pennsylvania Canal Company, and the title is in dispute. The defendant is advised by counsel and avers that the foot-front assessment,' on which the lien is based, as applied to a piece of ground of this description is unjust, inequitable and not warranted by law, the whole property in the opinion of the defendant, not being worth the amount assessed against it. The defendant, therefore, alleging that proof will be given, on. the trial of the cause, of the facts averred in this affidavit, prays for judgment against the plaintiff that it cannot maintain its lien against the property; and the defendant believes and avers that the act of May 23, 1874, under which the lien referred to was filed, is unconstitutional and void.
Upon a rule for judgment for want of a sufficient affidavit of defence, the court, Semonton, P. J., on April 28, 1888, filed the following opinion:
This case comes before us on a motion for judgment for' want of a sufficient affidavit of defence. Two grounds of defence are stated in the affidavit:
*2151. That the act of May 28,1874, P. L. 266, under which the assessment was made and the lien filed is unconstitutional and void. This is conceded on behalf of the plaintiff, but it is claimed that the assessment and lien were validated by the act of May 17, 1887, P. L. 117, and the act of May 24, 1887, P. L. 261. There is abundant authority for this claim: Grim v. Weissenberg School District, 57 Pa. 433; Hewitt’s App., 88 Pa. 55; and this defence must fail.
2. The affidavit avers: “ The defendant is advised by counsel and avers that the foot-front assessment, as applied to a piece of ground of this description, is unjust and inequitable and not warranted by law, the whole property, in the opinion of the defendant, not being worth the amount assessed against it.” It is also stated in the affidavit that the ground assessed is a triangular lot abutting on three streets, about 31 feet wide at one end, and running to a point at the distance of 405 feet, and the assessment is for laying water pipe along this whole distance at $1.10 per foot, amounting to about $446. The opinion of the affiant may therefore very readily be thought correct; but we are unable to see how, under the law, the facts can constitute a valid defence.
The late case of Michener v. City of Philadelphia, 118 Pa. 535, re-affirms the oft declared doctrine of the constitutionality of the per foot-front rule of assessment, and declares that such assessments are “ a species of taxation, and all taxation is presumed to be for the benefit, directly or indirectly, of the taxpayer or his property.” And further: “ It would be intolerable if in every instance of special taxation the question of benefits could be thrown into the jury box.” On the authority of the principles thus clearly stated we must adjudge the affidavit of defence insufficient.
Judgment is therefore directed to be entered for the plaintiff, the amount to be liquidated by the prothonotary.
Judgment was accordingly entered for the plaintiff for $520.61, whereupon the defendant took this appeal, alleging that the court erred:
1. In directing judgment to be entered for the plaintiff.
2. In ruling that the act of May 17,1887, P. L. 117, and the *216act of May 24, 1887, P. L. 261, validated the assessment and lien made and entered under the act of May 28,1874.
3. In ruling that the foot-front rule of assessment, as applied to the property mentioned in the affidavit, was legal and valid.
Mr. M. M. Graydon, for the appellant.
Cdunsel cited: Schenley v. Allegheny City, 36 Pa. 29; Hammett v. Philadelphia, 65 Pa. 146; Seely v. Pittsburgh, 82 Pa. 360; Craig v. Philadelphia, 89 Pa. 265.
Mr. Thos. S. Margesí, for the appellee.
Counsel cited: Butler’s App., 73 Pa. 451; Stewart v. Philadelphia, 4 Cent. R. 674; In re Centre Street, 115 Pa. 247; Michener v. Philadelphia, 118 Pa. 541.