Commonwealth v. Marshall

• Decision Date: 09 January 1872
• Citation: 69 Pa. 328
• Parties: Commonwealth to use of Allegheny City <I>versus</I> Marshall.
• Court: Pennsylvania Supreme Court

69 Pa. 328

Commonwealth to use of Allegheny City versus Marshall.

Supreme Court of Pennsylvania.

October 6, 1871.

January 9, 1872.

October 6th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 79, to October and November Term 1870.

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M. W. Acheson (with whom was W. B. Rodgers), for plaintiff in error.—Although the preamble is no part of a statute, yet it may serve to show the general scope and purport of the act and the inducements which led to its enactment: and it is often the key to the statute: 1 Kent 460-1; Jackson v. Gilchrist, 15 Johns. 89. The misrecital of date is cured by other recitals in the preamble: The Southwark Bank v. The Commonwealth, 2 Casey 446; Chalker v. Ives, 5 P. F. Smith 81; Levering v. Railroad Co., 8 W. & S. 459; Jackson v. Collins, 7 Cowen 89; The People v. Utica Ins. Co., 15 Johnson 358. The Act of March 24th 1869 cured the omission to record and publish: Marshall v. The Commonwealth, 9 P. F. Smith 455; Schenley v. The Commonwealth, 12 Casey 29. The public had an equitable right to reimbursement for the work done, and the curative legislation merely gave a remedy; this is constitutional: Hepburn v. Curts, 7 Watts 300; Magee v. Commonwealth, 10 Wright 358; Marshall v. Commonwealth, 9 P. F. Smith 455.

S. Schoyer and T. M. Marshall, for defendant in error, cited Commonwealth v. Schenley, Commonwealth v. Marshall, supra; 1 Kent 460; Erie and North East Railroad, 2 Casey 323.

The opinion of the court was delivered, January 9th 1872, by AGNEW, J.

This case was before us on a former writ of error, and is reported in 9 P. F. Smith 455. It was then decided that the resolution of the councils of the City of Allegheny of the 12th of April 1866, authorizing the committee on streets to enter into a new contract with James Hastings, for the grading of Ridge street, was null and void, because the same was not published and recorded as required by the city charter. An act to cure this omission was passed on the 24th day of March 1869. The preamble refers to this resolution as dated July 13th 1866, the date of the new contract, taken by the penman of the act by mistake for the date of the ordinance. It is, therefore, contended that the curative act is inefficient and inoperative. Of this opinion was the court below, which we think was an error. Though the preamble of a law, as often said, is no part of the enactment, and, therefore, does not proprio vigore make the law; it is, nevertheless, a part of the law for some purposes. If it be referred to in the enacting clause to identify the subject-matter of the law, or to explain the motive or the meaning of the legislature, it can be used for this purpose. In this view of its true character, the mistake here, of the date of the contract for the date of the ordinance, is plainly corrected by the remainder of the preamble. Not only does it refer to an ordinance which authorizes a new or second contract for grading Ridge street by name, and the fact of work done upon it in part, and large sums expended in grading; but this very suit is itself referred to, and the writ of error to the Supreme Court by number and term, the decision, and the recommendation of Justice Read in the opinion, that the want of publication and recording of the resolution should be cured by the legislature. This reference makes it perfectly plain that it was this very resolution or ordinance of April 12th 1866, which the legislature intended to validate. There is no other that concerns the case of A. Marshall.

It is contended that this resolution was incapable of ratification, because it was wholly void, no action having been taken under it within the thirty days allowed for recording it, as was the case in Schenley v. The Commonwealth, 12 Casey 29, and this it is said distinguishes the cases. That fact was stated in Schenley's case as adding weight, but not as the ground of decision. The reasoning of Justice Strong makes it clear that the principle, or the true ground of the decision, was that the value of the lots was enhanced by the public expenditure — that the city had the benefit of the work — that there was an imperfect or moral obligation to make compensation; and, therefore, that the non-recording of the ordinance was but a formal or technical defect, which the power of the legislature is competent to remedy. When the ordinance fell by the failure to record it, it was essentially dead — null and void, as though it had not been passed. The fact that the contract was entered into while it had a...