Diamond Street, Pittsburg
| Decision Date | 21 May 1900 |
| Docket Number | 197 |
| Parties | Diamond Street, Pittsburg |
| Court | Pennsylvania Supreme Court |
Argued March 14, 1900
Appeal, No. 197, Oct. T., 1899, by Pittsburg Opera House Company and George V. Marshall, from decree of C.P. No. 2 Allegheny Co., April T., 1899, No. 703, sustaining exceptions to master's report on petition to widen Diamond street in the city of Pittsburg. Affirmed.
Exceptions to report of master on petition for widening Diamond street in the city of Pittsburg.
From the record it appeared that the proceedings were under the act of May 16, 1891. The case was referred by agreement to Thomas Herriott, Esq., as master, who reported that twenty owners of property abutting on the street had signed the petition, and that the owners of twenty properties had not signed it. He therefore recommended that the ordinance passed in pursuance of it should be quashed. On exceptions, WHITE P.J., found as a fact that there had been twenty-one petitioners and eighteen nonpetitioners. Exceptions to the master's report were accordingly sustained, and the ordinance was approved.
Errors assigned were in sustaining exceptions to the master's report, and in approving the ordinance.
D. T. Watson, of Watson & McCleave, with him Dalzell Scott & Gordon and W. F. McCook, for appellants. -- The jurisdiction of this court to review all proceedings in the lower court is not to be frittered away or lessened by ingenious reasoning, but is to be upheld and sustained: Appeal of the Commissioners of Northampton County, 57 Pa. 453; Act of May 22, 1722; Pollard's Petition, 127 Pa. 522; Matter of Bryson's Road, 2 Penrose & Watts, 210; Kimber v. Schuylkill County, 20 Pa. 368; Jones v. Tatham, 20 Pa. 410; President, etc., of Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R. 418; Citizens Gas-Light Co. v. Board of Assessors, 39 N.Y. 81; In re Lauterjung, 48 N.Y. Superior Ct. 308; People v. Smith, 45 N.Y. 776; People v. Assessors of the City of Albany, 40 N.Y. 154.
It is sometimes stated that the certiorari only brings up the record, and, while this is true, what constitutes the record in one case may be quite different from what constitutes it in another. The decisions in this court are full and illustrate and explain what constitutes the record in several different cases: Kimber v. Schuylkill County, 20 Pa. 368; Matter of Bryson's Road, 2 Penrose & Watts, 208; Com. v. Richards, 131 Pa. 209; Pollard's Petition, 127 Pa. 508; Fleming & Son's Petition, 127 Pa. 523; Carlson's License, 127 Pa. 330; Robb's Nomination, 188 Pa. 212; Vaux's App., 109 Pa. 503; Shippen v. Gaines, 17 Pa. 38.
It will be noticed that in all the license cases this court examined the petition, the remonstrance, where there was one, and the opinion of the court, to ascertain if there had been a judicial hearing, and whether the license was refused for a legal reason. If, from the opinion, it appeared that the license was refused for an illegal reason, this court as in Pollard's case, reversed.
If power of the lower court was improperly and illegally exercised; if on admitted facts the court decided contrary to law, then this court may, and it becomes its duty, upon proper application made to revise, and, in a proper case, reverse the court below where its decree is based upon such erroneous decision: In re Germantown Ave., 99 Pa. 479; People v. Goodwin, 5 N.Y. 571; People v. Van Alstyne, 32 Barb. (N.Y.) 131; Curtis v. Wilcox, 74 Mich. 69; 2 Dillon's Municipal Corporations (4th ed.), sec. 928; Jackson v. The People, 9 Mich. 111; Milwaukee Iron Co. v. Schubel, 29 Wis. 444; Chase v. Miller, 41 Pa. 412; People v. Smith, 45 N.Y. 772.
Even if the act expressly stated that the decision of the court of common pleas should be final, the Supreme Court would still have jurisdiction to review its decision upon certiorari: Mauch Chunk v. Nescopeck, 21 Pa. 46; Sunbury v. Dauphin, 1 Am. Law Jour. 77.
J. H. Beal, with him Knox & Reed and Clarence Burleigh, for appellee. -- The decision of the court of common pleas, that the petition for the improvement was signed by a majority in number and interest of the owners of property abutting on the line of the proposed improvement, and approving the ordinance, is final and conclusive, and no appeal, therefore, lies to this court: Ruhlman v. Com., 5 Binney, 24; Gangewere's App., 61 Pa. 342; Thomas v. Upper Merion Twp., 148 Pa. 116; Annexation to Camp Hill Borough, 142 Pa. 511; Annexation to Elk Twp. School District, 146 Pa. 1; Robb's Nomination, 188 Pa. 212.
By a review of the regularity of the inferior tribunal's proceedings is meant an inquiry whether the form of proceeding legally applicable to the case was followed, and not whether the rulings of the court upon the law and the evidence and in the application of the law to the facts were correct: Carpenter's Case, 14 Pa. 486; Appeal of Commissioners of Northampton County, 57 Pa. 452; Esling's App., 89 Pa. 205; In re Germantown Ave., 99 Pa. 479; Election Cases, 65 Pa. 20; In re Kensington & Oxford Turnpike Co., 97 Pa. 260; Com. v. Gillespie, 146 Pa. 546; Com. v. Ramsay, 166 Pa. 642.
That neither the evidence, the report of the master nor the opinion of the court below is any part of the record before this court in the present case, is, we think, clearly shown by the following cases: Bradford Twp. v. Goshen Twp., 57 Pa. 495; In re Road in Upper Dublin and Whitemarsh Twps., 94 Pa. 126; Com. v. Ramsay, 166 Pa. 642.
It is further suggested that this court will examine as to whether the court below decided questions of law arising during the consideration of the case contrary to law. The plain answer to this proposition is, that to so hold would be to give to a writ of certiorari the whole legal effect of a writ of error, and this certainly it does not have: In re Hamilton Street, 148 Pa. 640; Com. v. Ramsay, 166 Pa. 642; Pollard's Petition, 127 Pa. 507; Union Canal Co. v. Keiser, 19 Pa. 134; Penna. R. Co. v. German Lutheran Congregation, 53 Pa. 445.
Before McCOLLUM, MITCHELL, DEAN, FELL and BROWN, JJ.
Diamond street, or alley, in the city of Pittsburg connects two of the principal streets, Wood and Smithfield; it also extends from Wood to East Diamond street. Between Wood and Smithfield, it is now twenty-five feet wide, and between Wood and East Diamond only twenty feet. For some years, there has been a demand that it be widened because public interests and convenience so required. On November 28, 1898, a petition was presented to councils by the owners of property fronting on the street, praying for the passage of an ordinance to widen the street between Smithfield and East Diamond to a uniform width of fifty feet. An ordinance to that effect was adopted unanimously by councils. The action of councils was taken, under the 10th section of the general act of 1891, which provides that a majority in interest and number of property owners, whose property fronts on the line of the proposed improvement shall petition for the same; and further, that any person interested and denying the fact that said petition was so signed, may appeal within sixty days to the court of common pleas, and there present a petition, setting forth the facts, whereupon said court should inquire and determine whether said improvement was petitioned for by the required majority, and if said court should find that it was not so petitioned for, it should quash the ordinance, but if it should find it was so petitioned for, it should approve the ordinance. Under this provision the Opera House Company and Marshall appealed, and presented their petition, denying that the petition to councils had been signed by a majority in interest and number of property owners fronting on the line of the proposed improvement. The court, after full hearing, decided that the petitioners to councils were a majority in number and interest, and therefore approved the ordinance. From that decree comes this appeal, assigning for error the conclusion of the court, to wit: that a majority in interest and number of property owners on the line of the proposed improvement had signed the petition to councils.
The first question raised is by appellee, the city, which moves to quash the appeal for want of jurisdiction in this court to review the proceedings in the court below. This case is named in the writ appeal and certiorari; is it one or both? In Rand v. King, 134 Pa. 641, it is said, "An appeal in name may therefore be a writ of error, or a certiorari in legal effect; and it is necessary in every case to look into the record and determine at the outset of our examination, whether what is called an appeal, is such in fact, or is a writ of error or a certiorari." And in Annexation to Camp Hill Borough, 142 Pa. 511, it was held that the act of May 9, 1889, did not extend the right of review or modify its exercise. "It simply provides that all appellate proceedings in the Supreme Court, heretofore by writ of error, appeal or certiorari, shall hereafter be taken in a proceeding to be called an appeal."
The petition of appellants to the court below avers:
Then in response to the rule to show cause, the city...
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In re Widening of Diamond St., in City of Pittsburgh
... 46 A. 428196 Pa. 254 In re WIDENING OF DIAMOND ST., IN CITY OF PITTSBURGH.Appeal of PITTSBURGH OPERA-HOUSE CO. et al. Supreme Court of Pennsylvania. May 21, 1900. 46 A. 429 Appeal from court of common pleas, Allegheny county. In the matter of the widening of Diamond street, in the city of ......