232 Pa. 255 | Pa. | 1911
Opinion by
The appellee contends that the court below had no jurisdiction, and for that reason, if for no other, the judgment for the defendant should not be interfered with. To which the appellant replies that the question of jurisdiction is not in the case, since none of the assignments of error raise the point.
Aside from whether any error was committed in arriving at the judgment, was the result complained of inevitable under the law? For if it was, the judgment will not be disturbed. This inquiry necessarily involves the underlying jurisdictional question, in the proceedings as instituted and tried, could any judgment other than the one rendered have been sustained? If this is determined against the appellant, then all subordinate issues are out of the case and the appeal must be dismissed. The question of jurisdiction is before us to this extent at least.
“Objections to the jurisdiction are of two classes between which there is a clear and well-defined distinction, first, those relating to the authority of the court over the subject-matter, and, secondly, those relating to its authority over the parties. Objections of the first class cannot be waived or jurisdiction obtained by acquiescence:” Com. v. Barnett, 199 Pa. 161, 177; English v. English, 19 Pa. Superior Ct. 586.
The present action was brought in trespass to recover direct and consequential damages to the property and franchises of the plaintiff company. The Act of May 6, 1897, P. L. 46, as amended by the Act of May 13, 1901, P. L. 191, provides: “That the county Commissioners of
Section 13, -of the Act of March 21, 1806, 4 Sm. L. 326, 1 P; & L. Dig. 107, provides: “In all cases where a remedy is provided, or duty enjoined or anything directed to be done by any Act or Acts of Assembly, .... the directions of the said Acts shall be strictly pursued; no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such eases further than shall be necessary for carrying such Act or Acts into effect." In White v. McKeesport Boro., 101 Pa. 394, the action was in trespass to recover damages suffered in the grading of a public street. In affirming a judgment for the defendant we said, “The legislature has provided a special remedy for that kind of injury by the Act of May 24, .1878, P. L. 129, and that form of proceeding must therefore be adopted in all cases coming within its terms. The Act provides that in all cases where the proper authorities .... may .... change the grade .... of any street .... thereby causing damage to the owner or owners of property abutting thereon in case they fail to agree with the owner for the proper compensation for the damages so done . . . ., the Court of Common Pleas of the proper county upon application .... shall appoint viewers, who shall proceed to assess the damages in the mode pointed out by the Act. This being the method established by law for the recovery of damages for changing grades .... it must be strictly pursued in accordance with the provisions of the Act of March 21,1806, . . . .”
While it was at first doubted that the doctrine of the act of 1806, supra, applied to ordinary civil suits, this point has long been decided in the affirmative: Wike v. Lightner,' 1 Rawle, 289; and there are a host of authorities in Pennsylvania applying the rule where the controlling
The plaintiff’s contention that the defendant waived the issue of jurisdiction is not well taken. The defendant neither expressly nor by its conduct at any time waived this point, but on the contrary questioned the jurisdiction of the court in its plea, by a motion for a nonsuit, and by requests for binding instructions (see Wiggins v. Columbian Fire-Proofing Co., 227 Pa. 511, 516). This is a case where the jurisdictional point goes to the authority of the court over the subject-matter, and therefore the appear^ anee to defend the action cannot be taken to have given jurisdiction by acquiescence. In substance, this was ruled against the contention of the plaintiff in Stork v. Philadelphia, 195 Pa. 101. There a claim was made before a jury of view for damages caused to property in the construction of a city improvement, an appeal was taken to the common pleas, and upon a verdict there rendered judgment was entered for the plaintiff and an appeal taken to this court. The evidence showed that the injury complained of was not the necessary consequence of the improvement, but that it arose through the negligent performance of the work. In reversing, we held that the liability declared upon could not be enforced in the form of proceeding adopted, and that the city was not estopped from raising the issue of jurisdiction, for the viewers could not be given authority to pass upon a question of liability which the law had not put within their jurisdiction.
But the plaintiff contends that the act in question is unconstitutional and void, and that since the constitution gives a right to damages for property taken, injured or destroyed, the present action could be maintained under the rule that “When a right exists and no adequate remedy is provided, it may be enforced by an action on the case:” Chester County v. Brower, 117 Pa. 647, 656. We cannot agree that the act should be set aside as unconstitutional legislation. The fact that there is no express provision in the statute for paying or securing the damages before the taking or injury, cannot be urged as a valid basic objection. In Keene v. Bristol Boro., 26 Pa. 46, 47, dealing with this subject, we said, “Ordinarily the power of taxation which is given to municipal corporations is adequate security to the citizen for his property which may be taken .... for public use.” In McClinton v. Railway Company, 66 Pa. 404, it is pointed out that while private corporations invested with the right of eminent domain must pay or secure payment before the taking or injury, this strict rule does not apply to the state or to municipal corporations; as to them, it is only necessary to provide the means of payment in the act of assembly authorizing the improvement. And in Barrett v. Nealon, 119 Pa. 159, 171, we said, “It has been repeatedly held that the power of taxation in a municipal corporation is sufficient security for property taken by such corporation; hence, it logically follows that it is sufficient for property injured.”
We are not impressed with the appellant’s contention that there is no proper method provided in the act for ascertainment and payment of damages or for concur
The act in question has been before the courts on several occasions. It was held to be constitutional in Seabolt v. Commissioners of Northumberland County, 187 Pa. 318, when attacked as special legislation and because of alleged defects in title. In Com. v. Attorney General et al., 13 Pa. Dist. Rep. 521, a proceeding concerning the bridge in this case, the amendment of May 13, 1901, was
It is true that the original act of 1897, before its amendment by the act of 1901, uses the word “may” in connection with the phrase “issue a mandamus,” instead of the word “shall;” but, as already explained, we construe the latter word, with its context, to have the same meaning as the former. It is also true that the facts found in 197 Pa. 110, so located the old bridge that the case was taken out of the act of 1897; but the amendment of 1901 makes the statute much more extensive in its operation, and the case as presented at the trial now under review was within the act as amended.
The act of 1897 as amended especially covers damages of the character claimed. As we understand the record, there was no denial that the plaintiff had owned the original bridge, that the commissioners had taken the old piers and toll house in the construction of the new bridge, or that they had been unable to agree with the plaintiff as to the amount of the damages sustained, if any. Hence the case falls squarely within the jurisdictional conditions for the appointment of viewers as provided in the act, and the fact that the defendants contended that the property claimed for had long since been abandoned and had no value, was not such a denial of the claimant’s title as would estop the defendants from demanding their right to have the case tried according to the method prescribed in the statute.
We cannot look into the record of the mandamus proceedings under the act of 1897 for the alleged irregularities
Since the court below had no original jurisdiction to try the case as instituted, the only judgment possible was one for the defendant. We might, therefore, conclude this already over lengthy opinion with that statement. But, with the thought of possibly ending the litigation, we have examined all the other points suggested by the specifications of error and ably argued by counsel, and while we do not conceive it necessary to make specific reference to the assignments, we will say that we have not been convinced of any reversible error in the rulings of the learned court below.
In conclusion we will notice briefly the principal rulings complained of. The grant to the bridge company must be construed most favorably for the public, and it cannot be said that the court below fell into error in holding that such grant could not be viewed as an exclusive franchise. The words used do not require such a construction, and so to hold would partially deprive the commonwealth of its sovereignty over the extension of roads and highways made necessary by the increase in population. Nor do we feel that error was committed in the conclusion that the ninth section of the Act of February 19, 1868, P. L. 177, did not allow the plaintiff a continuing franchise at the site of the old bridge as well as at the site upon which the new bridge was to be constructed. The authority given by the act was not to build an additional bridge!, but to rebuild the old bridge at a new site, and we construe the section in question to mean that all of the plaintiff company’s franchises for the bridge at the old site were preserved to it for the new bridge, and not that such franchises were to continue to exist at the old site. The plaintiff company’s abandonment, for bridge purposes, of
The appeal is dismissed at the cost of the appellant.