Swissvale Borough Incorporation

9 Pa. Super. 212 | Pa. Super. Ct. | 1899

Opinion by

Rice, P. J.,

When proceeding were statutory and no appeal was given by the statute, certiorari was the proper mode of review, prior to the Act of May 9,1889, P. L. 158, in which the legislature declared that all appellate proceedings in the Supreme Court theretofore taken by writ of error, appeal or certiorari should thereafter be taken in a proceeding called an appeal. It was the exclusive mode of bringing up for review proceedings incorporating a borough: Osborne Borough (Rhoads’s Appeal), 101 Pa. 284. On the same day that the act above referred to was approved, another act was approved, which provided, that in proceedings for the incorporation of a borough “ an appeal shall lie from any such decree, within twenty days from the recording of such decree, by not less than three persons aggrieved thereby, to the Supreme Court of this commonwealth ”: Act of May 9, 1889, P. L. 174. We are of opinion that the intention of the legislature was not to give an additional remedy, leaving the remedy by certiorari at the instance of any person aggrieved unimpaired, but to regulate the existing remedy. It follows that the appeal must be quashed for the reason that it was taken by only two persons, unless the law has been changed by later legislation. This was practically conceded by the appellant’s counsel, but he argued that the Act of June 26, 1895, P. L. 389, repealed the provision of the act of 1889 under consideration. Repeals by implication are not favored. It is a rule founded in reason as well as in abundant authority, that in order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provision's and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal construction of it: Endlich on Interpretation of Statutes, sec. 210. There is no such repugnancy between the provisions of the two acts. The former relates exclusively to the proceedings for bringing the case up for review; the latter to the proceedings in the court of quarter sessions. The provision of the act of 1895 that any party interested may file exceptions to the proceedings was simply declaratory of a right which was always recognized in practice. But the right of a single person interested to file exceptions and to contest the proceedings in the quarter sessions cannot be said to carry with it, by necessary implication, the right of such person to appeal from the decision of that court when the statute regulating the subject declares that in order to bring up the case for review the appeal must be taken by not less than three persons.

This question was raised in Emsworth Borough, 5 Pa. Superior Ct. 29, but was not decided; and in order that it should not be assumed that it was decided, we expressly said that no opinion was expressed regarding it.

The appellee’s motion is allowed and the appeal is quashed.