Thirty-fourth Street, Philadelphia, 81 Pa. 27

Thirty-fourth Street, Philadelphia

81 Pa. 27 | Pa. | 1874

Mr. Justice Paxson

delivered the opinion of the court,

A writ of certiorari was sued out by Hugh Mcllvaine to the Court of Quarter Sessions of Philadelphia, to bring up the record of that court in the matter of the proceedings to assess the damages for the widening of Thirty-fourth street. The case is inaccurately termed an appeal, and the parties are treated as appellant and appellee in the respective paper-books. This is erroneous; there is no appeal in the case. The distinction between an appeal and a certiorari is marked and should not be lost sight of. An appeal brings up the case upon its merits; a certiorari brings up the record only, and upon such writ we can look merely at the regularity of the proceedings: Duff’s Road, 16 P. F. Smith 459.

A motion to quash the certiorari was made upon the argument. The reason assigned was that the writ had not been allowed by this court or by one of the justices thereof. This involves a question of practice of some importance. The second section of the Act of 23d of March 1829, Pamph. L. 93, provides “that from and after the passage of this act, no writ of certiorari shall issue from the Supreme Court of this state to remove any proceedings of the Court of Quarter Sessions of the county of Philadelphia, under the Act of Assembly for opening and laying out of public roads, streets or highways, and for assessing damages for opening the same, unless the party applying for .such writ shall make oath or affirmation that the same is not intended for delay, but because he firmly believes that injustice has been done in the Court of Quarter Sessions; and unless such writ of certiorari shall be *30specially allowed by the Supreme Court or a justice thereof, for just and reasonable cause shown to them or him, and that any writ of certiorari issued against the provisions of this act shall be void and of no effect.” This act was held to he still in force in the case of Road from Thomas’s Creek, 3 Whart. 11. It was contended in that case, that by the general road law passed on the 13th of June 1836, this provision of the Act of 1829 was virtually repealed, and that by the Act of 16th June 1836, relating to the jurisdiction and powers of the courts, a certiorari is to issue of course. But the court said that the Act of 13th June 1836 contained an express saving of special and local acts, and that a special allocatur was still necessary for the removal of the proceedings in the Quarter Sessions relating to the opening of roads in the county of Philadelphia. Such has been the uniform construction of the Act of 1829 from that day to this, and the practice, with rare exceptions, has been in harmony with it. We might well quash this writ without further discussion, but as it was.taken out under an impression that a special allocatur was unnecessary, and the case has been fully argued, we would not quash under the circumstances if, upon examination, we find that the plaintiff would be entitled to a special allocatur immediately thereafter.

I have looked in vain through this record for anything on which' to base the plaintiff’s assignments of error. The resolution of councils referred to in the first and second assignments is hot set out in the record and is not before us. It is true that, in the petition of Thomas Costigan for the appointment of a jury to assess the damages for the widening of Thirty-fourth street, it is stated “that the Select and Common Councils of said city, by a resolution duly approved July 11th 1871, directed the commissioner of highways to notify the owners of property through and over which Thirty-fourth street, from Market street to Aspen street, passes, that after three months from the said notice the same would be required for public use according to the widened and straightened lines, as an approach to the park, and which notification has been received.”

Assuming the resolution to be as set forth in the petition, we fail to perceive any error on the part of the court below in appointing a jury to assess the damages for the widening of the street.

The Act of April 14th 1868, Pamph. L. 1083, provides “ that the councils of the city of Philadelphia be and they are hereby authorized to widen and straighten any streets laid out upon the public plans of said city as they may think requisite to improve the approaches to Eairmount Park.” If, as was contended, the damages for the widening of the street were required to be assessed under the Act of March 26th 1867, Pamph. L. 547, to which the act first above named is a supplement, it wrnuld still be the duty of the Court of' Quarter Sessions to appoint the jury. Eor anything *31that appears upon this record, the damages may have been “ ascertained, adjusted and assessed in like manner,” as is prescribed by the Act of 1867. We are unable to say in this proceeding, from what is legitimately before us, that city councils had no authority to enact said resolution, or that the court below had no jurisdiction.

The third assignment alleges that the court below erred in sustaining the third exception filed on behalf of the city. The record does not show any such exception or ruling. It does disclose three exceptions filed by the plaintiff, all of which were dismissed by the court and the report confirmed. The first and second of said exceptions are sufficiently covered by what has been said. The dismissal of the third exception is not assigned for error.

We are unable to see anything in this record which would justify us now in granting a special allocatur.

Writ quashed.