Kennedy Township Road

50 Pa. Super. 619 | Pa. Super. Ct. | 1912

Opinion by

Rice, P. J.,

One of the exceptions considered and overruled in In re Road in Sterrett Township, 114 Pa. 627, was that the report showed that the county surveyor did not act, but that his deputy acted in his place and stead, and that by reason thereof the view and report were defective. The assignment of error to the overruling of this exception was dismissed by the Supreme Court in the following language: “The 17th specification is without merit. The act of February 24th, 1873, relating to the office of surveyor and civil engineer for the county of Allegheny, provides that the county surveyor ' shall, either in person or by deputy, act as artist in all road and bridge views.’ The report shows that the county surveyor’s deputy did represent him as artist in this case. There appears to be no error in the record that vitiates the proceedings.” It is true, the constitutionality of the act was not discussed in the opinion, and that the report of the case does not affirmatively show that it was discussed by counsel. But the assignment of error was broad enough to raise the question, and we are not convinced that, after such a lapse of time, during which the case, though cited many times, has remained unquestioned, we would be justified in assuming that the question of the constitutionality of the act was overlooked by court and counsel. Granting, however, that it was, and, therefore, that the case is not a binding precedent upon that question, still the sixth assignment of error in the present case should be overruled. It was declared very explicitly, in the recent case of Kucker v. Sunlight Oil & Gasoline Co., 230 Pa. 528, that, where an act is plainly in conflict with the organic law of the state, “old age cannot give it life and when the issue of its constitutionality is properly raised it must be declared void.” But it was said, in the same connection, that a court should hesitate to declare a statute unconstitutional, and where it has been on the statute books for many years the hesitation should be all the greater. It is thus seen that the principle enunciated in the case is not in conflict with what had been declared in Sugar Notch Boro., 192 Pa. 349, as to the attitude which the court should take in such cases. Upon this subject Justice Mitchell said: “In conclusion, it is not inappropriate to direct attention to the fact that the act of 1887 has been in operation for twelve years, has been twice previously before this court, and has been the ground of action many times before other courts without objection to its constitutionality. It is rather late now to question it. While these circumstances are not conclusive in its favor, yet they are a strong argument that it is not so plainly repugnant to the constitution as it must be to require a court to overturn an act of the legislature.” And these remarks may be pertinently quoted here. This act has been on the statute book for nearly forty years; as pointed out in the opinion of the learned judge below, it has been practiced under in Allegheny county, with the sanction of the quarter sessions, during all that period; it was before the Supreme Court in the case cited, and before this court in Chartiers Creek Bridge, 48 Pa. Superior Ct. 106; and in no reported case, in any of the courts, has objection to its constitutionality been sustained. These considerations do not preclude inquiry into the sufficiency of its title even at this late day, but they are to be had in mind in the determination of that question, as was wisely held in both of the Supreme Court cases last cited and in other cases. For, if the title is so plainly defective and repugnant to the constitutional amendment as is now contended, it is at least a matter of surprise that the act has stood the test of litigation so long. Moreover, it is to be noticed, the title is not misleading; it invites inquiry into the body of the act as to the functions and duties of the county surveyor. All the cases recognize the distinction between such a title and one which is misleading; and the general rule is, that, where a title is not deceptive, and relates to one subject, and is sufficient to put those interested on inquiry as to the contents of the bill, the demand of the constitution has been met, even though the various details by which the object of the bill is to be attained are not indicated by express mention of them in the title: Com. v. Darmska, 35 Pa. Superior Ct. 580, and cases there cited. Upon full consideration of all the legitimate arguments pro and con, we hold that the title of the act of 1873 is not so plainly defective and so plainly repugnant to the provisions of the constitutional amendment of 1864 as to justify us in declaring the act to be void. Therefore, the sixth assignment is overruled.

The third, fourth, fifth and seventh assignments are overruled for the reasons given in the opinion of Judge Haymaker.

The remaining assignments to be considered are the first and second. These raise the objection that the petition for the appointment of viewers did not comply with sec. 1 of the Act of April 23, 1909, P. L. 142. The section reads as follows: “That hereafter all petitions for the laying out or for the vacation of a public road, in any county of the commonwealth, shall fix definitely the point of beginning and the point of ending, mentioned in said petition, by giving the exact distance from an intersecting public road, street, or railroad, already opened.” The petition for a road view under the act of 1836 lies at the foundation of all subsequent proceedings, and can state no more than the beginning and ending. “They are the initials which describe the proceeding, and limit the authority delegated by the court in its order to the viewers:” Road in Lower Merion, 58 Pa. 66. Reasonable certainty, therefore, in the description of the termini in the petition was always required. But prior to the act of 1909 mathematical precision was held not to be indispensable in all cases, and, as pointed out in Judge Haymaker’s opinion, there were cases in which it was held that to describe a terminus as being “at or near” or “below or near” some natural or other monument or object, as, for instance, a spring, a tree, a barn, a house, the dividing line between lands, the intersection of l’oads, or upon land of an owner named, was sufficient: Kennedy Twp. Road, 40 Pa. Superior Ct. 70. But it is apparent, from the preamble of the act of 1909, that, in view of the present policy of the commonwealth relative to the laying out and maintenance of public highways, the legislature deemed it necessary to require greater certainty in designating the termini, so that the relation of the road to other roads should more clearly and definitely appear. The section is undoubtedly mandatory, and the omission to comply with it, where it can be complied with, is fatal. The petition was for a public road “to lead from a point on the Pine Hollow Road near a bridge at or near the property of Robert Clever, Esq., in said township, to a point on the Pittsburg and Middletown Road at or near a poplar tree on the Hinheauer farm in said township.” As the exact distance of each terminus from an intersecting public road, street, or railroad, already opened, is not given, the petition would seem not to conform to the requirements of the act, and, therefore, the proceedings were irregular from the beginning. But it has been argued in another case before us, involving the construction and application of the act of 1909, somewhat as follows: The grammatical meaning of the enacting language, without regard to its physical impossibilities, is that the public road, street, or railroad shall intersect the terminal points of the road proposed to be laid out or vacated; palpably only lines can intersect, therefore no road, street or railroad, already opened, can intersect the terminal points of a proposed road; hence, the first section of the act of 1909 enacts an impossibility, an absurdity, and means nothing. The conclusion at which this argument arrives, shows there must be a faulty premise, or a fault in the reasoning somewhere along the fine. There is the strongest kind of presumption against the existence of that species of absurdity in the intention of the legislature which would consist in a design to defeat its own object. It is a cardinal rule that all statutes are to be so construed as to sustain, rather than ignore, them; to give them operation, if the language will permit, instead of treating them as meaningless: Howard Association's App., 70 Pa. 344. These elementary principles are overlooked, we think, in the argument to which we have referred. It is fallacious in assuming, in the first place, that the grammatical meaning of, the words is that the intersecting road is one, and only one, that intersects a terminal point of the road proposed to be laid out or vacated. Having regard to the purpose of the enactment, the words may be and should be construed as relating to, or at least including, a road, street or railroad which intersects the public road upon which the terminal point of the road proposed to be laid out is situated. We need not, in the present case, stop to inquire whether the word “intersect” is used in the literal sense of crossing, or in that sense as well as in the sense of touching and opening into. But that it refers to the crossing or joining or opening into the road upon which the terminal point is situated, we entertain no doubt. It is argued against this view of the statute, that the terminal point of a road need not always be in another road; but that consideration does not arise here. So far as appears, there is no reason why the statute could not have been complied with, in the present case, as to both termini, and, as it was not, we are constrained to sustain the first and second assignments of error.

The order is reversed and the proceedings are set aside.