108 Pa. 83 | Pa. | 1885
delivered the opinion of the court, January 5th, 1885.
The Act of April 28th, 1854, P. L. 513, is part of the charter of the borough of Verona. It provides that all ordinances “shall be recorded in a book to be kept at the office of the burgess, which shall be free to public inspection, and no ordinance .....shall be carried into operation in less than two weeks after the same shall be so recorded.” Such provision calls for no discussion whether it is mandatory or directory, for it plainly expresses the condition upon the performance of which, after two weeks, the ordinance shall be carried into operation, and no ingenuity oan make the ordinance operative before. That Act was originally applied to the borough of Birmingham, and contained a directory provision that all ordinances then in force should be recorded in said book. The distinction is obvious between thg ordinances passed before the date of the Act and those to be passed thereafter.
By the Act of April 8th, 1848, P. L. 415, also a part of the charter, the town council are empowered to direct and determine the location and limits of any'new street, lane or alley, when they shall consider that the opening of the same is necessary ; and.a plan of such location shall be made and deposited in
When the Act of 1848 was passed, t.he town council of the borough of Birmingham had authority to enact by-laws, rules, ordinances and regulations, but no'by-law or ordinance should be carried into operation in less than three weeks after publication by setting up a true copy thereof in three of the most public places in said borough: Act of April 10th, 1826, P. L. 376, § 11. How the location and opening of a new street could be directed and determined without an ordinance, by the town council, has not been shown. Its form may not be material;- if as a motion or resolution, when legally adopted it has the effect of and virtually is an ordinance. Conferring the additional power on the council to direct and determine, the location of a new street, that is to ordain that there shall be a new street on a certain location, dispensed with no requisite to the operation of an ordinance, prescribed by a prior statute. Upon the superseding of that requisite by the new one prescribed by the Act of 1854, the latter became an essential for an operative ordinance. Then, if it be conceded that the council had power to adopt the plan, the motion, resolution or ordinance for adopting it,, was not recorded as provided by law.
Thé Act of April 21st, 1873, P. L. 824, provides, “ That the burgess and town council of the borough of Verona are hereby authorized to open any part or parts of any street included in the-general plan of said borough, approved by council, September eleventh, one thousand eight hundred and seventy-two, and they are hereby authorized and empowered to pass such ordinances or resolutions as may be necessary to carry this Act into effect.” Then follow provisions respecting damages, which need little remark in the pending case. It has not been denied that the legislature had power to validate a plan of streets for the borough. The Act authorizes the passing of all ordinances that may be necessary for opening any part or parts of any street included in a described plan. On its face appears no intent that it shall operate retrospectively; it recognizes the plan and confers so large powers with reference thereto that practically it is made the general plan of the borough. Without surmise as to the words which should be read in the place of “and do,”’ it is clear that it is not the intendment that the plan and all ordinances for opening streets shall be void in default of payment of damages, as required, which
There having been no operative ordinance approving the plan, a person who examined it prior to the Act of 1878, and after the adoption of the resolution of approval, was not bound to apply for damages under pain of losing his right. At present there is no question concerning those who did apply. Nor is it necessary to consider whether owners of land on the lines of the streets, lanes and alleys included in said plan, would have lost their right to recover damages by suffering' the term of court to pass without application, had the ordinance, merely approving the plan, been recorded.
The Acts of 1848 and 1873 are to be construed as one. Therefore, on the passing of an ordinance for opening any part or parts of any street included in said plan, the prescribed notice shall be given, and the owner or owners of ground on the line of said part or parts of the street may apply for damages by petition to the next term of the court of quarter sessions. It was contemplated by the Act of 1873 that there would be no immediate necessity for opening all the streets included in the plan, and power was conferred to pass an ordinance for opening part or parts of any street. In case of an ordinance providing for the opening, where the owner of land on the line of the street, or part thereof to be opened, had not already proceeded for settlement of damages, or had not done some act that would bar his recovery, he is entitled to notice of the ordinance and may demand damages in the mode provided by the statute. By the terms of the Act of 1848, the “ council, so soon as they shall have caused payment of the damages assessed to be made to the persons entitled to receive the same, according to the report of the viewers, returned to said court and confirmed by the same, may proceed to cause such street, lane or alley to be opened forthwith.” Moreover, since January, 1874, a municipal corporation, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction of highways, which compensation shall be paid or secured before such taking, injury or destruction.
There is no evidence that Mazurie did any act to bar his right to damages, nor that such action had been taken by the
Decree affirmed, but modified so that the injunction instead of being perpetual, shall continue until the damages, if any, that shall be done to the property of the said M. Graver by the opening and grading of C street, shall be ascertained, determined and paid. And the second sentence be stricken out, and instead thereof, the following: That so much of the ordinance as directs said street to be opened over M. Graver’s land before the determina- ■ tion and payment of his damages, is void. The costs to be paid by appellant.