City of Harrisburg v. Sheck

104 Pa. 53 | Pa. | 1883

Mr. Justice Green

delivered the opinion of the court, October 1st 1883.

The learned judge of the court below held that the Act of 1860 was repealed by implication by the Act of 1874, and upon that ground directed judgment to be entered in favor of the plaintiff. In this we are constrained to think there was error. The argument is that the two Acts cannot stand together, and their essential inconsistency abrogates the former. Had the earlier Act been of a general character, imposing liability for damages for improvements, covering the one in question, and providing the method of their ascertainment, there would', have been great force in the suggestions of the court below. But we think an examination of the Act of 1860 shows that it was legislation of a local and special character, conferring a peculiar privilege, and imposing a particular obligation, not embraced within either the letter or the spirit of the general law of 1874, and hence not taken away by it, there being no ’ words of express'fepeal. The Act of 1860 is a local law incorporating the city of Harrisburg (P. L. 1860, p. 175). The.. 42d section authorizes the city to straighten Paxton Creek wherever the same may be necessary within the boundary lines of the city and Swatara township, to change the bed of the stream and remove all obstructions, so that no stagnant water will remain in the. creek. The 43d section gives a remedy for damages suffered by any person in the straightening or changing the. bed of' the . creek, by application to the court of Quarter Sessions of the county of Dauphin, and directs that, the county shall pay the damages.

The creek being partly in the township of Swatara and' partly in the city of Harrisburg, it is obvious that the privilege and the power to enter within the limits of the township, for the purpose of straightening the creek, are special and peculiar,, not within the general powers of the city, and existing only by force of this Act. The obligation of the county to pay any damages occasioned by the work done in straightening the creek, whether in the city or township, is also of a special and particular character, not arising by any general law, or any law but this. The right of the city to do this work, and the duty of the county to pay the damages incurred, were certainly a continuing right and duty until the passage of the general law of 1874 in relation to the classification of cities. It is true that this general law gives to councils the power to establish, alter, and change the channels of water-courses, and to wall them and cover them over, but the limits within which this power must be exercised are the territorial limits of the city. No power is conferred by the Act of 1874 to go outside the city limits and do such or any similar work within any adjacent territory. And so also as to compensation for damages, the 53d section of the general law of 1874 gives a remedy against the city by application to the Court of Common Pleas, “ in all cases in which, under the provisions, of this Act,” any public work is done. But, of course, this remedy would not be coextensive with the remedy afforded by the Act of 1860, since it is limited to cases arising under the provisions of the Act which confers it. Under the former Act the obligation to pay the damages is imposed upon the county, which is a different and more extended municipal organization. The Act of 1874 gives no equivalent for this. Before and up to the time of the passage of the Act, although the city did the work, the county was obliged to pay. Under the Act the city cannot do (he-, work outside its own limits, and the county is not obliged to pay for anything. Certainly the latter Act does not supply the, former, flow, then, can it operate as a repeal by implication ? Such repeals aro' not favored, and are not allowed exceptin' cases of strong repugnancy or irreconcilable inconsistency: Brown v. Commissioners, 9 Har. 37; Erie v. Bootz, 22 P. F. S. 196; Wright v. Vickers, 31 P. F. S. 122; In re Barber’s Election, 5 Nor. 392. In Wright v. Vickers, Woodward, J., said : “ To repeal a statute by implication there must be such a positive repugnancy belween the provisions of the new law and the old that they cannot stand together or be consistently reconciled.” And in Brown v. Commissioners, we held, that a general statute, without negative words, will not repeal a previous, statute which is particular, though the provisions in the two-he different In the present case we perceive no conflict between the Acts in question which renders them inconsistent or irreconcilable. Their provisions aro different, but theyi provide for subjects which are not the same. For this reason they may both stand and be executed together. If the work done in -a particular case be a part of the process of straightening Paxton Creek or changing its bed, the special and local Act of 1860 applies, and must be followed, because it was passed for that Very purpose. The Act of 1874 neither supplies its place nor makes any corresponding provision. The two Acts may be executed, eaeli witliin its appropriate sphere, without any repugnancy whatever, and hence there can be no repeal by implication. In Sifred v. Commonwealth, 5 Out. 200, Mr. Justice Trunkey said: “It is against reason to suppose that the legislature, in framing a general system for the state, intended to repeal a special Act which the local circumstances of one county had made necessary.” Entertaining these views, we are of opinion that the learned court below was in error in entering judgment for the plaintiff on the verdict, and the same must now be reversed.

Judgment reversed, and judgment is now entered for the defendant in the court below on the questions reserved, non obstante veredicto, with costs of suit.