In re Opening of Twenty-eighth Street

| Pa. | Apr 16, 1883

Mr. Justice Trunkey

delivered the opinion of the court, April 16th 1883.

No question arises whether any local statute relative to opening streets, enacted prior to the Act consolidating the city of Philadelphia, is still in force, for it is conceded in the assignments of error that there is no special or local Act providing for the opening of streets in the district where the street described in the petition- is located. The sole inquiry has reference to the jurisdiction of the court.

In the argument for the plaintiff in error it was said that “until the passage of the Act of April 21st 1855, the jurisdiction of the court of quarter sessions as to the opening of streets was exclusive.” If the jurisdiction has been taken away it must be by an enactment which expressly or impliedly repeals the statute which conferred it. There is no express repeal, and there can be none by implication unless there is strong repugnancy or irreconcilable inconsistency. A grant of concurrent jurisdiction to another tribunal, or to the city councils, tabes away the exclusive quality; The board-of surveyors, uuderthe direction of the councils, are clothed with final authority to plot and lay out streets upon the plans .of the city, and that has supplied most provisions of the Act of.'1836 respecting the duties of-road viewers, and supersedes the power of the Quarter Sessions to locate or determine the. width of-such streets. But the power of said board has not been. extended to the opening of streets.

The Act of April 21st 1855, provides — “ That whenever councils shall deem the public exigency to demand it, they may order by ordinance any.street- laid down, upon any of the public plans-of the city to be, opened, giving, three, months’notice thereof to the owner.” This vests a large discretion in- the councils to act or refrain, but it authorizes action only when they judge respecting a street laid upon the.plans that the public exigency demands its opening. Though the councils, without control or review, can determine whether they will act in any particular case, and may claim, the right to' act in all cases, no intendment appears in the Act of 1855 to deprive the Quarter Sessions of jurisdiction. Jurisdiction is vested in councils in some cases, if not in all; at most it is concurrent. They may rightly exercise it in cases of public exigency. .The judicial and legislative understanding of the question is clearly shown by the learned judge of the court of Quarter Sessions in an opinion which completely vindicates the proceedings and order for opening the street. Besides the pointed recognition of the power of the court in the Act of March 16th 1866, the Act of April 13th 1856, provided, “ that councils may in all cases, whether the proceedings to open any street shall have been commenced in councils or in the ordinary course before the court,” refuse to appropriate for the opening until contributions by pei-sons benefited. The point is now raised the first time in this court. It was not involved in the cases of Jackson street, 83 Pa. St. 328, and Thirty-ninth street, 10 W. N. C. 384.

Eor the -reasons given by the court of Quarter Sessions,

Order and decree affirmed.

Mercur, C. J., and Gordon, J., dissented.