Smedley v. Erwin

51 Pa. 445 | Pa. | 1866

The opinion of the court was delivered, by

Strong, J.

The court below was of opinion that the special Act of Assembly of May 20th 1864, by which the chief commissioner of highways was directed to open, or cause to be opened, Evergreen street for public use, cannot constitutionally be enforced, because it indicates no method of ascertaining or securing the damages to owners of property taken for the street. In this we think they were mistaken. It may be that the Act of April 1st 1864, entitled “ An Act relating to the opening of streets and payment of damages therefor in the city of Philadelphia,” applies only to streets laid out on the public plans of the city, and ordered by the city councils to be opened as provided for in the Act of April 21st 1855, and that it has no reference to streets directed be to opened by special enactments of the legislature. Such was the view taken of it in the court below. But the General Road Law of June 13th 1836 embraced as well the case of a street laid out under 'the authority of a special law, as the case of a road or street laid out under the direction of a Court of Quarter Sessions. This is not denied so far as concerns county roads.

But it is contended that streets in the city of Philadelphia, not on the public plans, and not made streets by proceedings of the Court of Quarter Sessions, but becoming such by special law, are not embraced in the provisions of the Act of 1836, relative to the assessment of damages. A distinction it is said is made between roads laid out in the country in virtue of special laws, and streets in the city made such by similar laws. And we are, referred to the legislative resolution of May 29th 1840, Pamph. L. 752, by which it was resolved, that the seventh, eighth and ninth sections' of the Act of the 15th of June 1836 (the General Road Law), shall be construed to apply to claims for damages in consequence of injury sustained from the location and opening of a road under the provisions of any special Act of Assembly, unless when the same is otherwise provided for by law. Inasmuch as the 76th section was not included among those to which such a construction was directed to be given, it is inferred the legislature did not intend streets in Philadelphia laid out by virtue of special laws, to be governed by the provisions of the general law. The inference is not well founded. The Act of 1836 prescribed a general system for laying out and opening roads and streets throughout the Commonwealth. All its provisions are as applicable to Philadelphia as to any other county, except so far as they are expressly declared to be inapplicable. The 7th, 8th and 9th sections are operative in this city as fully as elsewhere, saving only the particulars in which alterations were made by the 76th and four next following sections. Those alterations relate exclusively to the time of presentation of petitions for assessments, to the mode of selecting the jurors for views, and to their qualifications. In all other respects there is no difference.- No other difference was intended. The 1st section of the act enacts that the Court of Quarter Sessions of every county of the Commonwealth shall appoint viewers, to view the ground proposed for a road, and make report of their proceedings to the respective court at the next term thereof, with a proviso that the provisions of the act relative to the appointment of viewers to lay out roads and to assess damages shall not extend to the city and county of Philadelphia, thereinafter specially provided for. It is not the provision relative to the assessment of damages, but the provisions respecting the appointment of viewers that are declared not to extend to the city and county of Philadelphia. If the 7th, 8th and 9th sections are not in force in Philadelphia, so far as they relate to the lands taken for public use, then the act makes no provision for any assessment at all in the city. The 76th and following-sections are unmeaning, except as taken in connection with the former sections, and as constituting with them a system. Hence they refer to each other. The 76th declares that the viewers, drawn in accordance with its requirements, shall be subject to all the provisions of the act prescribing the duties of viewers of roads and damages; and the 80th section prescribes ’ that after the viewers shall be chosen (in Philadelphia), the same proceedings shall be had as are prescribed by the general provisions of the act; both clearly referring to the 7th, 8th and 9th sections, by which the right to damages as -well as the mode of obtaining damages is given. We are not then to look to the sections, enacting when petitions shall be presented, and how viewers shall be selected in Philadelphia, to ascertain in what cases assessments of damages are authorized. For that we must look to the 7th section, as well when the new highway is in Philadelphia as when in any other county. The Act of 1840, therefore, which resolved that highways laid out under special laws should be deemed embraced within the 7th section, was large enough to cover such ways in Philadelphia. It would have been absurd to have enumerated the 76th section among those to which the prescribed construction should be given, for it has exclusive reference to the mode of raising up a tribunal for assessment in cases designated by the 7th. It follows that the constitutional difficulty which the court below felt, and which has been so earnestly pressed by the appellees, is not in this case. The Act of 1836 makes full and adequate provision for the assessment and recovery of whatever damages they -may sustain in consequence of opening the street.

It is argued further, in support of the decree of the court below, that the Act of May 20th 1864, directing Evergreen street to be opened, was hastily and improvidently passed; that the street is not necessary for public use, and that for this reason the court may, and should, prohibit the execution of the act. This is a proposition to which we cannot assent. In the exercise of their undoubted right to take private property for public use, the legislature has ordered the street to be opened. Taking land for a public highway is taking it for a public use. The degree of the public necessity is exclusively for the legislature. It is not a judicial question. We may and will take care that private property is taken under an assertion of eminent domain for no other than a public use. Thus far we may prevent the operation of Acts of Assembly which have the forms of law, while they are not legislation. And it is that to which allusion is made by Judge Rogers in Pittsburgh v. Scott, 1 Barr 314, when he asserted that to justify the exercise of the right to take the property of the citizen, “it must be for the use of the public, to be determined in the first place by the legislature, subject, however, to correction or restriction when it clearly appears the right is abused, either by design, which we cannot well suppose, or, what is more to apprehend, by hasty and improvident legislation.” The abuse of which he spoke is the transgression of power in attempting to take private property for private use.

That might be by design, or, more likely, improvidently and hastily. But when the use is an undoubted public one, as is appropriation for a highway, it would be usurpation in us to prevent the execution of an act of the legislature because we might think it indiscreetly passed or enacted without proper consideration. . There is no such power in the courts of this Commonw'ealth.

.Again, it' is urged that the chief commissioner of highways was without power or authority to open the street, because he did not proceéd and open it, or cause it to be opened, within thirty days from the passage of the act that directed him to proceed and open it. It is said his authority expired with the thirty days. The argument overlooks the character and purpose of the enactment. It is not a grant of the eminent domain of the Commonwealth to private persons, nor is it the gift of a naked power. It is a statute for a public purpose. Its main design is to secure the street without delay. It therefore in effect appropriates the land for the street by its own force, and the direction respecting the time and agency for opening it are but incidental to the main purpose. If the street commissioner has been guilty of laches, the Commonwealth is not to suffer, especially when the delay works no injury to the complainants.

The decree of the Court of Common Pleas must therefore be reversed, and it is ordered, adjudged and decreed, that the injunction be dissolved, and that the bill of the complainant be dismissed with costs.