1 Grant 257 | Pa. | 1855
The opinion of the court was delivered by
— The Act of 23d March, 1839, under which the defendants claim the right to appropriate the property of the plaintiffs for public use, contains in its second section the following provision: “ that the said borough of West Chester shall pay, or receive to be paid, all damages that may be caused directly or indirectly to private property, by virtue of the privileges hereby granted, in such manner as is providéd in the fifth section of an act, entitled a further supplement to the act entitled an act to incorporate the town of West Chester into a borough, passed the 16th day of April, 1838.”
The fifth section of the act referred to, makes no provision for the payment, or securing the payment of damages, but merely declares how the damages shall be ascertained.
It is alleged by the plaintiff in error, that the first mentioned act of assembly is unconstitutional, because it does not require
Where an act of assembly is susceptible of different constructions, the one in accordance with, and the other in violation of, the constitution, it is too plain for argument, that it is the duty of a court of justice to give to the act that construction which harmonizes with the constitution,.for such is .presumed to have been the legislative intent.
Now, the act in question provides, that “the borough shall pay, or secure to be paid, all damages that may be caused,” &c. When shall it pay or secure the damages ? The constitution says, “before the property is taken;” and as the Legislature did not give, or attempt to give, the power to take private property, before payment or security, the presumption is, that payment or security was to precede the act of taking; and, upon this presumption, the act was in conformity to the constitutional requisition. The reference to the Act of 1838, is simply for the purpose of pointing out the means by which the damages shall be ascertained, but the extent of the damages is governed by the Act of 1839, which act provides that all damages that “may be caused directly or indirectly,” shall be paid or secured, including, of course, the damages that follow, as well as those that precede the assessment.
It is unnecessary to determine what would have been the effect, had the Act of 1839 contained no provision making it obligatory upon the borough to pay or secure the damages occasioned by its exercise of the right given to it by the legislature, to take private property for public use, as we are of opinion that the provision in the act required the damages to be paid' or secured before the property was taken.
An objection was made to the admission of the bond in evidence, because it was drawn to the wife alone, without naming the husband. It is conceded that the property belonged to the wife, and that it was devised to her since the Act of 11th April, A. d. 1848. As Mary D. Sharpless might have maintained an action in her own name for damages done to her real estate, and as her husband’s interest in her lands as tenant by the curtesy, although protected by the Act of 11th April, 1848, is not a vested interest until her death, it was unnecessary to include his name in the bond. The .entire damages sustained can "be recovered under the proceedings commenced for that purpose; and, therefore, the plaintiffs are neither entitled to recover the possession of the land in this action of ejectment, nor damages for the entry to survey and mark the same before the land was tendered. Judgment affirmed.
