Paschall Street

81 Pa. 118 | Pa. | 1876

Mr. Justice Gordon

delivered the opinion of the court,

This was a proceeding in the Quarter Sessions of Philadelphia county, on the petition of John and A. J. Yewdall, to ascertain and assess the damages that might result to the property of the petitioners in consequence of the opening of Paschall street, in its extension from Fifty-second to Haverford street, in the Twenty-fourth, ward of the city of Philadelphia. Some five exceptions were taken to the action of the court in the premises, and are here now submitted to us for examination. We will consider them seriatim.

1. That the requirement of the 76th section of the Act of June 13th 1836, requiring the petition to be presented thirty days before the commencement of the term of court at which the viewers are appointed, wTas not observed. The answer to this is, that the act referred to, which was a special act for Philadelphia, was repealed by that of 16th March 1866, sec. 1, which applied the provisions of the General Road Law to the city. The two acts are evidently inconsistent with each other, and it is apparent that the latter was designed to abrogate and supply the former.

2. That it does not appear that more than five of the viewers were qualified or acted. But as the terms of the statute are complied with, where five of the six are qualified and act, this exception cannot be sustained. If the act itself be not sufficient to convey its own meaning, it is helped out by the cases of the Road in Little Britain, 3 Casey 69, and the New Hanover Road, 6 Harris 220. We have been cited to the case of Cambria street, 25 P. F. Smith 357, as sustaining this exception. But a very cursory examination would have informed the counsel that that case was not in point, for there the sixth juror was sworn after he had made the view; and as he had acted and signed the report, we held that this defect could not be cured by treating the report as that of the five competent viewers.

3. That thé jury was not properly sworn.

As we find nothing on the record beyond the statement that all the jurors present “were duly sworn or affirmed to perform their duties in the premises according to law,” this exception must fall. As we must presume all things to have been rightly done, unless the contrary appear, and as the words, “according to law,” necessarily mean according to the form prescribed by law, we must assume that the statute, in this particular, was complied with. In In re Cambria Street the form of the oath was specifically set forth as follows: “ The other jurors were then each severally sworn or affirmed to the faithful discharge of their duties, the petition having first been read to them;” hence we were obliged to say that a form of oath different from the one prescribed by the Act of Assembly had been adopted. Had the words, “ according to law,” followed the above the statement, the case would have been different, and the decision upon it would also necessarily have been different.

4. That the act is unconstitutional, in that it only provides for six instead of twelve jurors.

As this act has been treated by both bar and bench, for the last forty years, as constitutional, we may be excused if we pass this exception without further consideration.

5. That the jury appointed had no jurisdiction to assess the damages sustained by the appellant, and this, because the assessment was made upon a petition by John and A. J. Yewdall. This exception seems to me to be substantial. The words of the act are, “ any of the owners may petition,” &c. “And it shall be the duty of the jury to ascertain and report to the court, first, what .damages the parties claiming the same are entitled to.” I cannot, for my part, see how, under this act, one may have the right to claim damages for his neighbor; or how, on such claim, the city can be compelled to pay; for it does not follow he will claim such damages at all; and if he chooses not to interpose such claim, who may do it for him ? This view of the case, however, is of no value at present, for, if it be correct, then the appellant has no standing to review these proceedings, because they do not affect her; she is but a stranger to them.

There was another point made in the discussion of this case Avhich we may notice and dispose of as though regularly presented by exception ; that is, that the second set of viewers were appointed under the old petition, after the report on the first view had been set aside. But there is no reason Avhy this should not be done, for it Avould be an idle form first to Avithdraw and then re-present the petition, which would obAÚate the technical difficulty, if any there were; - and besides this, a practice of this kind is approved in the case of the Charleston Road, 2 Grant 476.

Proceedings affirmed.