Dewhurst v. City of Allegheny

• Decision Date: 25 October 1880
• Citation: 95 Pa. 437
• Parties: Dewhurst <I>versus</I> City of Allegheny.
• Court: Pennsylvania Supreme Court

95 Pa. 437

Dewhurst versus City of Allegheny.

Supreme Court of Pennsylvania.

October 14, 1880.

October 25, 1880.

October 14th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ. absent

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 7.

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Kennedy & Doty, for plaintiff in error.—It is not contended, that because one portion of an Act of Assembly is unconstitutional it necessarily follows that the whole act is void. But when as in this case the unconstitutionality arises from a failure to express, in its title, the purposes of the enactment, and the unconstitutional provisions are so connected with the others that it cannot be presumed the legislature would have passed one without all, then the whole statute must fail: Beckert v. City of Allegheny, 4 Norris 191; Cooley's Const. Lim., p. 177 et seq., notes and cases there cited; Sedgwick on the Construction of Statutory and Constitutional Law, p. 414 et seq., notes and cases there cited. Slauson v. City of Racine, 13 Wis. 398; State ex. rel. v. Dousman, 28 Id. 541: State v. Perry County, 5 Ohio N. S. 497; Quinlon v. Rogers, 12 Mich. 168; Campau v. Detroit, 14 Id. 276; Reed v. Omnibus Railroad Co., 33 Cal. 212.

W. B. Rodgers for defendant in error.—There does not appear to be any Pennsylvania case in which the whole of a statute was held unconstitutional, because the title did not give notice of the subject-matter of the entire statute. The rule has been to sustain the portion of which the title gave notice: Wynkoop v. Cooch, 8 Norris 450; Lea v. Baum, 2 Id. 237; Allegheny County Home's Appeal, 27 P. F. Smith 78; Dorsey's Appeal, 22 Id. 194; Mauch Chunk v. McGee, 3 W. N. C. 32.

If, when the unconstitutional portion is stricken out, that which remains is complete in itself, or capable of being executed in accordance with the apparent legislative intent, wholly independent of that which it rejected, it must be sustained: Cooley on Const. Lim., p. 178.

A statute, which is entitled as relating to "streets," cannot embrace a power to lay out parks, but such power being severable from the body of the act, will not vitiate the entire law: Township of Union v. Roeder, 39 N. J. L. 509.

Dewhurst having petitioned for and promoted the improvement is estopped: Bidwell v. City of Pittsburgh, 4 Norris 416.

Mr. Justice PAXSON delivered the opinion of the court, October 25th 1880.

The defendant below objects to paying the assessment upon his property for the grading and paving of Troy Hill Road, in the city of Allegheny, for various reasons, the first of which is, that the Act of Assembly of May 10th 1871, authorizing the same, and the supplement thereto approved April 1st 1872, are unconstitutional, and the assessments thereunder null and void. In Beckert v. The City of Allegheny, 4 Norris 191, so much of said act was declared to be unconstitutional as provided for the assessment of a part of the cost of the work upon property in Reserve township, which said township is located wholly in Allegheny county and outside the city limits. The title of said act was "an act relative to grading, paving, curbing and otherwise improving Troy Hill Road in the city of Allegheny," and this was held not to be notice to property owners in Reserve township that their property was to be assessed for the cost of the improvement. There was nothing in that case, however, to throw the slightest doubt upon the constitutionality of any part of the act except in so far as it related to Reserve township. It is no injury to the defendant that property owners in the township have escaped. Their burdens have not been thrown upon his property, but have been very properly assumed by the city of Allegheny. His benefits are the same whether Reserve township pays or not; his burden is only increased by his share of general taxation and of this he has no cause to complain: Bidwell v. City of Pittsburgh, 4 Norris 491. An entire act is not necessarily unconstitutional because the title fails to give notice of some particular matter contained therein. The rule has been to sustain the portion of which the title gives notice: Dorsey's Appeal, 22 P. F. Smith 192; Allegheny County Home's Appeal, 27 Id. 77; Lea v. Bumm, 2 Norris 237; Wynkoop v. Cooch, 8 Id. 450. Even if there were anything in this objection, the defendant is not in a position to raise it. He petitioned for this road and was active in setting the machinery in operation by which the work was done. His case comes squarely within the rulings in Bidwell v. City of Pittsburgh, supra.

2. It was further objected that the lien was not filed in time. It was evidently filed under section 10 of the supplement which provides that "said assessments, with the interest accruing thereon, and fees for collection, shall be liens upon the property assessed from the commencement of the work until fully paid; they shall have precedence to...