15 Pa. Super. 167 | Pa. Super. Ct. | 1900
Opinion by (after finding the facts as set out in the statement of facts) :
The questions raised on the argument will be considered under the following general heads: first, the constitutionality of the act of 1895; second, the sufficiency of the petition to give the court of quarter sessions jurisdiction to make the order or decree prayed for, and the regularity of the proceedings; third, the jurisdiction of this court to review the proceedings; fourth, the right of an abutting landowner to appeal from the order or decree, and the effect upon that right of his failure to file exceptions in the court below; fifth, the question of estoppel arising upon facts, outside the record, to which we shall refer.
1. The constitutionality of the act is assailed on the grounds, first, that the title is defective; second, that it violates the provisions of section 7, article 3 of the constitution which declare that the general assembly shall not pass any local or special law “ regulating the affairs of counties, cities, townships, wards,
The act is entitled, “ An act providing for the permanent improvement of certain public roads or highways in the several counties of this commonwealth, making such improved roads and highways county i;oads, authorizing the relocation, opening, straightening, widening, extension and alteration of the same, and the vacation of so much of any road as may thereby become unnecessary; authorizing the taking of property for such improvement, and providing for the compensation therefor, and the damages resulting from such taking; providing for the payment of the costs and expenses incurred in making such improvements, and in thereafter repairing and maintaining said road, and authorizing the levy of a tax to provide a fund for said purposes.” The provisions of the act all relate, and are cognate, to one general subject, namely, the establishment and maintenance of certain highways as county roads, and that subject is clearly expressed in the title. It has been declared repeatedly that it is not necessary that the title should be a complete digest of the contents of the act; it is sufficient if it fairly and clearly gives notice of the subject-matter, so as reasonably to lead to an inquiry into the body of the act. In a very recent case the Supreme Court stated the rule as follows: “ Where a general title, sufficient to cover all the provisions of an act, is followed by specifications of the particular branches of the subject with which it proposes to deal, the scope of the act is not limited nor the validity of the title impaired except as to such portions of the general subject as legislators' and others would naturally and reasonably be led by the qualifying words to suppose would not be affected by the act. This is the rule established by all our cases. It is an application of the maxim expressio unius exclusio alterius. The express enumeration of the specific subjects must be affirmatively misleading as to the intent to exclude others, or the title will not be made invalid by it:” Sugar Notch'Borough, 192 Pa. 349. This rule has
It is argued that the act is effective in any county only upon the contingency of the county commissioners deeming it expedient to adopt its provisions; therefore, by the application of the principles enunciated in Frost v. Cherry, 122 Pa. 417, and Commonwealth v. Denworth, 145 Pa. 172, it must be declared to be a local or special law. We do not think the act is parallel with the acts construed in those cases. Its vitality as a law does not in a true sense depend upon the exercise of an option by the county commissioners. It is in force in every county of the commonwealth, just as the law authorizing boroughs to pave streets, to lay sewers and to make other improvements is in force in every borough of the commonwealth, although the corporate officers of some boroughs may in the exercise of their discretion decline to avail the borough of its privileges, or may pave some streets and leave others unpaved. The law providing for the taking of toll bridges for public use and making the same county bridges is not self-executing. Unless the persons designated in the act institute the proceedings, whereby the expediency of making a particular bridge a county bridge
2. None of the constitutional objections urged against the act being sustained, we come next to the question as to the sufficiency of the petition, and the jurisdiction of the court to make the order prayed for. The first section of the act provides that any county shall have the power, “ to cause any particular main or public road or highway or section thereof in such county to be improved under the provisions of this act,” (the language just quoted is to be particularly noticed), whenever the commissioners or a majority of them shall, by resolution duly adopted, deem it expedient to do so, and their proposition is duly approved by a grand jury and by the court of quarter sessions. At the foundation of the proceedings there must be a resolution of the commissioners designating a “ particular ” road or section thereof. We do not say that it is absolutely essential that a literal copy of the resolution must be set forth in, or attached to, the petition, although we remark that to do so would be good practice. But aside from all question of form, if neither the petition nor the resolution therein referred to designates with reasonable certainty the “ particular ” road or section thereof that is to be made a county road and improved, it is too plain for argument that the court cannot take jurisdiction. The question presented in this case is, not whether the commissioners may designate two roads in a single resolution
8. It is suggested that jurisdiction to review these proceedings has not been given to this court, either by the act under which the proceedings were instituted or by the act creating and defining the jurisdiction of the Superior Court. Sections five to ten inclusive of the former act relate to the proceedings to fix the damages when the amount of the same cannot be agreed upon. They may be instituted by the county commissioners or any person interested in the proposed improvement and whose property or land is affected thereby. The proceedings for the ascertainment of the damages are entirely in the common pleas, and need not precede the actual making of the improvement: The tenth section provides, inter alia, that “ any party so interested may, within thirty days after final decree and confirmation of said report by said court, have an appeal to the Supreme Court.” It is thus seen that the act contemplates two distinct proceedings in different courts. One begins in the
4. The next question is as to the effect of the appellant’s failure to file exceptions in the court below. The general rule is that the court will not be reversed unless the errors complained of have been called to its attention. To this general rule there are well recognized exceptions. “ When it is said that all irregularities and errors to which exceptions are not taken in the quarter sessions will be considered as waived, the court must be understood as excepting such as appear on the face of the record:” Frankstown Road, 26 Pa. 472. In that case the court reversed an order confirming a report of road viewers because it had not been made at the term to which the order was returnable, or to which it had been regularly continued, notwithstanding the fact that the plaintiff in error had not excepted in the court below. In Bean’s Road, 35 Pa. 280, the defect in the proceedings assigned as error was that the termini of the proposed road were not defined with sufficient precision. Exceptions were filed in the court below but not being in conformity to its rules they were dismissed for that reason. On certiorari the court was reversed, not because it had dismissed the exceptions but because it was apparent on the face of the record that the court had no authority to order the road to be opened. Mr. Justice Strong, who delivered the opinion of the Supreme Court, said: “It is true this exception was not taken in the court below according to the rules of that court. The exceptions filed not having been accompanied with a certificate of the attorney, that, in his opinion there were good legal reasons why the report should not be confirmed, they were liable to be dismissed- on motion. They were dismissed, but the court went further, and confirmed the report of viewers. Doubtless, after the dismissal, the case was in the same condition as if no exceptions had been filed. Yet this did not authorize the court to confirm the report and order a road to be opened when there was nothing upon the record to show its locality. We do not, indeed, often notice exceptions not taken in the court below, but where there is a radical error patent on the face of the record, especially where the court has made a final order that cannot be executed, an order which in itself is erroneous, we will
5. It is contended further that the appellant is estopped. The facts upon which this alleged estoppel is based do not appear of record, and strictly need not be considered. We have, however, given them full consideration, and are. convinced that they would not be sufficient to warrant the conclusion that the appellant is estopped from' questioning this decree, even if they were properly before us. What are they ? First, the appellant with others petitioned the county commissioners to cause to be improved “the public road known as the Middletown road,” describing it; second, he signed a release “ of and from all claims for damages .... if the permanent improvement of said road as a county road be confirmed by the court .of said county.” This petition and release were signed before the institution of
The decree is reversed and the proceedings are set aside.