Esling's Appeal

89 Pa. 205 | Pa. | 1879

Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This was a certiorari to the Court of Quarter Sessions of the city and county of Philadelphia, to bring up for review the record of said court dismissing the appeal of Mary A. Esling and Amanda

F. Holahan from the confirmation of plan No. 272 by the board of surveyors of said city.

The case was before us last year, when it was found that there was nothing upon the record to enable us to form an intelligent judgment upon the points in controversy. In order, however, that no injustice might be done the plaintiffs, the following order was made:

“Leave is given to withdraw the record on file, for the purpose of amendment and a new return to the writ of certiorari, as if upon a certiorari sur diminution of record. The appellant can then move the court below to enter in full nunc fro tunc the decree involved in the entry of appeal dismissed June 29th 1876, and forthwith to certify to us a copy of the resolution of June 29th 1874, and the map, or a true copy thereof, brought into the Court of Quarter Ses-. sions, by the appeal of the plaintiffs in error.”

We have now certified to us, by a further return to the certiorari, the decree of the court below made nunc pro tunc ; a copy of plan No. 272, and a copy of the resolution of councils of June 29th 1874.

The plaintiffs have filed ten specifications of error, the most important of which are those which deny the power of the board of surveyors, under the resolution of councils, to lay out new streets, and to straighten, widen or vacate old ones.

The interest of the plaintiffs appears nowhere except in their affidavit, filed in the court below upon their appeal. In it they state that they are “freeholders within the boundaries of said plan,” and that said plan will entail considerable loss and Expense upon them without authority of law.

A great deal that was pressed upon us at the argument was outside this record. Too much stress must not be laid upon the fact, that we permitted the resolution of councils and the plan to be cer-tified to us upon the certiorari. They were not legitimately any part of the record of the court below, nor did our order or permission to certify them make them so. In the view which we take of the case, any further comment on the effect of bringing up the papers referred to becomes unnecessary, and it is referred to merely to prevent misapprehension hereafter.

The Act of 6th June 1871, Pamph. L. 1853, confers upon the board of surveyors authority to confirm or reject all plans of surveys or revisions of plans of the city of Philadelphia, when the same shall have been made by direction of'the Select and Common Councils of the said city. The plan in controversy, No. 272, was made under this act. The city councils, by their joint resolution of June 29th 1874, ordered “ that the department of surveys be and is hereby authorized and directed to prepare plans in duplicate of the lines and grades of so much of the Twenty-sixth ward as is embraced between Twenty-fifth street and the river Schuylkill, Ritner and Geary streets.” In order to ascertain whether the board of surveyors exceeded the authority contained in this resolution, we must look at what they have done, as we find it in the record. And for the purposes of this case, giving the plan all its effect as though a part of the record, we find nothing in it but the lines and grades of the streets in the territory referred to. This is precisely what the resolution of councils directed. But it is said new streets have been laid out and old ones vacated. All this is dehors the record and the plan. The latter furnishes us no information as to what are old streets and what new. It is true, a street is marked vacated. But vacated when and by w'hat authority ? For aught that appears, it may have been vacated years ago, by order of the Court of Quarter Sessions, upon proceedings properly had for that purpose.

The difficulty in the way of the plaintiffs is, that they cannot, upon a certiorari, have the case heard as upon an appeal. Where an appeal is given by Act of Assembly, the parties are entitled to be heard upon the merits. The certiorari brought up nothing but the record, and we are confined strictly to questions affecting its regularity.

One question only remains. The Act of 23d May '1874, Pamph. L. 230, regulating the passage of ordinances by councils, provides that “ no bill shall' be passed containing more than one subject, which shall be clearly expressed in its title.” This clause is identical in language with the clause in the constitution relating to Acts of Assembly. The rule, as settled by numerous decisions under the constitutional provision, is, that it is sufficient if the title fairly gives notice of the subject-matter of the act, so as reasonably to lead to an inquiry into its body: Blood v. Mercelliott, 8 P. F. Smith 391; Church Street, 4 Id. 353; Dorsey’s Appeal, 22 Id. 192; Allegheny County Home’s Appeal, 27 Id. 77; State Line and Juniata Railroad Co.’s Appeal, Id. 429; Mauch Chunk v. McGee, 31 Id. 433. The resolution in question is entitled “ Resolution directing lines and grades over a portion of the Twenty-sixth ward.” If the title is not entirely beyond criticism, it certainly comes within the rule laid down in the cases above cited. •

Proceedings affirmed.