Somerset & Stoystown Road

74 Pa. 61 | Pa. | 1873

The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

The repeal of statutes by implication is certainly not favored. Where there are two affirmative statutes on the same subject, there must be a clear inconsistency or repugnancy between them in order that the later one shall produce this result: Street v. The Commonwealth, 6 W. & S. 209; Bank v. The Commonwealth, 10 Barr 448; Brown v. The County Commissioners, 9 Harris 37; Opdyke’s Appeal, 13 Wright 373. Yet a subsequent affirmative statute is a repeal by implication of a former one made concerning the same matter, if it introduces a new rule upon the subject and is evidently intended as a substitute for the former law : Johnston’s Estate, 9 Casey 511. Before the Act of April 3d 1851, Pamph. L. 320 — the General Borough Law— many special charters to particular boroughs vested them with powers to lay out and open roads, streets and alleys within their limits, but unless Avhere exclusive language was used, as in' the case of The Road in the Borough of Easton, 3 Rawle 195, they were always held not to repeal the General Road Law: Road in Moyamensing, 4 S. & R. 106; Road in Mercer, 14 Id. 447; The Newville Road Case, 8 Watts 172; Sharett’s Road, 8 Barr 89. The Act of 1851 provided that the boroughs should have power “ to survéy, lay out, enact and ordain such roads, streets, lanes, alleys, courts and common seAvers as they may deem necessary, and to provide for, enact and ordain the widening and straightening, of the same.” It enacted also “that like proceedings shall be had for the opening, widening and straightening of the roads, streets, lanes, courts and alleys laid out and ordained in accordance Avith the provisions of this act, as are provided for the laying out and opening of public roads within this Commonwealth,” and “ that such streets, lanes and alleys shall not be opened for public use until the damages shall be liquidated; and upon any amounts due or to become due by borough corporations for the purposes aforesaid, interest shall be allowed and paid from the date of the adjudication of said damages;” and further, “that all damages assessed beyond the value of the land thus appropriated to public use shall be paid by the corporation, and the jury shall separately assess the same.” The Act of April 22d 1856, Pamph. L. 525, entitled “A Supplement to the Act regulating Boroughs,” provides “that Avhenever the burgesses and town council of any borough shall open or be about to open any streets or alleys therein or to Aviden and pxtend the same,” they may apply by petition to the Court of Quarter Sessions, who shall appoint seven disinterested freeholders of such borough as viewers, who shall proceed to assess the damages to all persons injured, and shall also make assessments for contribution upon all properties benefited. It must be admitted that the differences in the proceeding thus provided for and that under the General Road Law of 1836 are very important, and it can scarcely be supposed to have been within the intention of the legislature that any person, by applying for a vieAV of a road or street within a borough, can have it opened and laid out by an order of the court Avithout the action of the borough authorities, and thereby throw the damages upon the county treasury, without any contributory assessments upon the properties benefited. It may be therefore, and there is great reason to hold, that as to streets and alleys within the limits of the borough, to which the Acts of 1851 and 1856 are confined, the provisions of these acts supersede and repeal so much of the General Road Law as they supply. But by streets and alleys “therein” — that is, within the borough limits — must necessarily be meant such as begin and end therein, and not such public roads as are or may be opened through the borough, of Avhich a part only is Avithin the borough limits. ■ As to such roads there is nothing in either of these acts to repeal the general law or repugnant to it. Most of the boroughs have had their beginnings by a few houses built along some public road, and not unfrequently Avhere two roads cross each other. In laying out and opening such a road between distant termini, though it may be laid out through a borough, or in widening and straightening one already laid out and opened, to require that as to the part within the borough ono proceeding shall be followed, and as to so much as lies without, another and different proceeding, would be to introduce unnecessary complication. Besides, a public road laid out and opened by order of the court under the General Road LaAV must be presumed necessary for the accommodation of the public at large, and not of the inhabitants of the borough only; yet if the construction now contended for prevail, such a road under the Acts of 1851 and 1856 could not be laid out through a borough Avithout the concurrence of the borough authorities. In the case presented to us upon this record it appears that a road Avas laid out by public authority, in the year 1798, from Somerset borough to the borough of Stoystown, and the petition, upon Avhich the proceedings below were founded, represented that part of said road, from a point in Somerset borough to a point in Somerset township, was too narrow to accommodate the public, and prayed for the appointment of vieAvers to widen and straighten the same. This was not, then, the case of a street or alley in the borough of Somerset. One of its termini is beyond the limits of the borough. We are of opinion with the learned judge below that the Court of Quarter Sessions had jurisdiction on the petition, and that the proceedings Avere warranted by the Acts of Assembly.

Proceedings affirmed.

Mbrcur, J., dissented.