113 Pa. 281 | Pa. | 1886
Lead Opinion
delivered the opinion of the Court,
Did the Act of May 19th, 1871, entitled, “ An Act relating to streets in the several boroughs of Montgomery county,” impose upon the county the damages assessed to the owners of property on the laying out, opening or widening of streets, roads or alleys in any of the said boroughs, we would agree with the counsel for the county that the Act was unconstitutional and void. In such case the title to the said Act would have to be regarded as wholly defective, since it affords no notice that it embraces anything relative to the county. But as there is nothing apparent in the statute which at all affects the county, or expresses an intention to make such damages payable out of its treasury, we cannot, for this reason, which has been urged by the counsel for the .plaintiff in error, pronounce the Act unconstitutional. It will be observed that” both the Borough Act of 1851 and the general road law not only provide for the assessment of damages upon the laydng out of streets and roads, but also prescribe how they shall be paid, whilst the Act of 1871 only directs the method by which such damages shall be assessed, and says nothing as to their payment.
They are to be assessed under the General Road Act, but as there is no direction for their payment, the Borough Act remains, in this particular, unaltered, and to it we must resort in order to learn how those damages, when ascertained, are to be liquidated.
It is urged, indeed, on part of the defendant in error that as the damages are to be assessed under the Act of 1836 they must be paid according to the directions of that Act. This might be so if the assessment necessarily involved payment by the county, but it does not, for the two things are essentially different. There is no reason why the Legislature might not direct that on the taking of land by a railroad company, in exercise ,of its right of eminent domain, the damages to the owner should be assessed under the provisions of the general road law, but in such case it would not follow that the
The judgment of the Court below is affirmed.
Concurrence Opinion
filed the following concurring opinion : I concur in this judgment, though not for the reasons given by my brother Gordon.
I am of opinion that the Act of May 9th, 1871, P. L. 639, is constitutional, though the effect of it be to put the damages upon the county. That it does put the damages upon the county was conceded by the Court below, and by the counsel on both sides. It was upon this ground alone that the constitutionality of the Act was assailed; the allegation being that the title of the Act did not give notice to the taxpayers of the county that the county, and not the boroughs, would be hereafter liable for the damages arising from the opening of streets in said boroughs.
The title of said Act refers to “streets in the several boroughs of Montgomery county.” I think this title affects the taxpayers of the county with notice of any legislation concerning those streets, whether it relates to the assessment of damages or otherwise. In this respect the case differs essentially from that of the Road in the Borough of Phcenixville,'reported in the Legal Intelligbncer of July 31st, 1885, page 313.
The opinion of the Court concedes the Act of May 9th, 1871, to be unconstitutional if it puts the damages on the county, but holds that such is not the effect of the Act. Said Act provides that “ damages to the owners of land injured thereby shall be assessed as provided under the general road laws of the Commonwealth.”
The general road law provides (Act of 1836) that the damages, when assessed, shall be paid by the county treasurer out of the county stock.
It will thus' be seen that I have reached the same result as the majority of the Court, but by a radically different route.
Justice Green concurs with me in this view.