In re Opening of Ruan Street

• Decision Date: 17 February 1890
• Docket Number: 338,335
• Citation: 132 Pa. 257,19 A. 219
• Parties: OPENING OF RUAN STREET; @GRADE OF WASHINGTON STREET
• Court: Pennsylvania Supreme Court

19 A. 219

132 Pa. 257

OPENING OF RUAN STREET; @GRADE OF WASHINGTON STREET

Nos. 335, 338

Supreme Court of Pennsylvania

February 17, 1890

Argued April 8, 1889.

Re-argued January 6, 1890.

APPEALS BY J. A. CAMPBELL AND A. FOULDS FROM THE COURT OF QUARTER SESSIONS OF PHILADELPHIA COUNTY.

Nos 335, 338 January Term 1889, Sup. Ct.; court below, numbers and terms not given.

WASHINGTON STREET.

On April 27, 1888, Jonathan L. Pierce and others, owners of properties on and near to Washington street, in the city of Philadelphia, presented to the court below a petition praying for the appointment of a master and a jury of viewers, under the provisions of the act of May 6, 1887, P.L. 87, to ascertain the damages resulting to the properties of the petitioners from a change in the grade of said street, made in 1887, in accordance with an ordinance enacted in 1873 by the select and common councils of the city. Upon this petition, the court, on May 29, 1888, appointed Mr. Thomas A Gummey, master, and appointed also a stenographer and a jury of six for the purposes named therein.

On January 15, 1889, the master and jury made a report assessing damages in favor of the petitioners. On the same day, the court, on application of the city of Philadelphia, granted a rule upon all other parties in interest to show cause why the appointment of the master and jury should not be quashed. After argument, the court, on January 31, 1889, made the rule absolute, ARNOLD, J., delivering the following opinion:

A Petition was filed on April 27, 1888, praying for the appointment of a master and jury of view to ascertain the damages caused to the property of the petitioners by raising the grade of Washington street, in the Twenty-first ward of the city of Philadelphia. The application was made expressly under the act of May 6, 1887, P.L. 87, and in pursuance thereof a jury, master and stenographer were appointed. They entered upon their duties and filed a report on January 15 1889. The city solicitor has obtained a rule to quash the proceedings, on the ground that the act of 1887 is unconstitutional, because it is confined in its operation to cities of the first class. We have given the matter careful consideration; and, in view of the importance of the subject and the consequences involved in our judgment, we have deemed it proper to decide the question promptly, so that our judgment may be corrected by the Supreme Court, if we are wrong, or a remedy applied by the legislature, if our judgment is correct.

A perusal of the act of 1887 will show that every one of its seventeen sections, except the fourth, contains the words "city of the first class." A careful reading will also show that the writer of the act desired to make it a general law, and that it was made special and confined to cities of the first class, by alteration and amendment. Thus §§ 2 and 6 enact that the courts of Quarter Sessions of the several counties having jurisdiction in cities of the first class shall, etc. Now as there is only one city of the first class, Philadelphia, and that city does not lap over into an adjoining county, only one court of Quarter Sessions, and not several, has jurisdiction in it. Of course, other cities of the first class may be created by legislation or growth, or may extend over parts or the whole of two or more counties, and thus become subject to the jurisdiction of several courts of Quarter Sessions, so that there might not be any objection on the score of the remoteness of the possibility; but the fact cited shows that the act was by injudicious amendment changed from its original shape, and so rendered abortive.

The objection to the act on constitutional grounds is that by confining it to cities of the first class, instead of being in force throughout the state, it is made to sin against article III., § 7, of the constitution, which provides that "The general assembly shall not pass any local or special law . . . regulating the practice or jurisdiction of . . . courts . . . or other tribunals; or providing or changing methods for the collection of debts," etc.; and article V., § 26, which provides that "All laws relating to courts shall be general and of uniform operation, and the organization, jurisdiction and powers of all courts of the same class or grade, . . . and the force and effect of the process and judgment of such courts, shall be uniform," etc.

It requires no argument to prove that the act of 1887 regulates the practice and jurisdiction of the Court of Quarter Sessions, and a legal tribunal, to wit, a road jury, in road cases, by changing methods for the collection of debts due as damages for opening, widening, or changing the grade of streets, by a law which is not general and of uniform application, but is special and confined in its operation to cities of the first class. A reference to a few of the differences between this special and the general road law, will show how great they are. Section 3 provides for the appointment of a master, who shall preside over the meetings of the viewers, determine the admissibility of evidence, issue subpoenas, and instruct the jury upon the matters of law; that is, charge the jury. In no other part of the state is a master required in a road case, nor can a master issue a subpoena in any other case.

Section 15 Provides that petitions for damages may be presented within six years after the actual opening, widening, or change of grade of any street. In all other parts of the state, the statute begins to run from the time when the regulation of the grade is altered on the plans, although the actual grading may not be done for years thereafter: Philadelphia v. Wright, 100 Pa. 235; Campbell v. Philadelphia, 108 Pa. 300. That the legislature may, by repealing a statute of limitation, revive an outlawed claim, is settled law: Campbell v. Holt, 115 U.S. 620; and the same effect may be accomplished by making the statute begin to run from a later date. That this section of the act of 1887 is just, was said in Axford v. Philadelphia, 46 Leg. Int. 6, but we refrained from saying anything about its constitutionality, because the question was not mooted. If this section were in force throughout the state, there could be no objection to it. That it is not, is proof that the act is a special or a local act.

The learned counsel for the petitioners endeavored to save the act on the ground that the division of cities into three classes is permitted, and laws applying to cities in one or more of those classes have been held to be constitutional. This is true, so far as strictly municipal laws and regulations are concerned, including the titles, duties, powers, liabilities, and election or appointment of city officers; but, so far as relates to school districts, tax liens, holding of courts, fees of county officers, street-railway companies, and other matters of general government, laws limited to cities or counties by classification or population, or any other device, have been held to be unconstitutional and void: Scowden's App., 96 Pa. 422; Morrison v. Bachert, 112 Pa. 322; Scranton Sch. D.'s App., 113 Pa. 176; Philadelphia v. Haddington Church, 115 Pa. 291; Weinman v. Railway Co., 118 Pa. 192; Ayars' App., 122 Pa. 266; Shoemaker v. Harrisburg, 122 Pa. 285.

It was urged in argument that this motion to quash ought not to be granted because of the delay in making it, which, it is said, estops the city authorities; and we have been moved to wait and decide the question on exceptions to the report. Aside from the doubt whether a municipality can be bound by an estoppel, before an assessment of damages has been made and paid, there can be no doubt that an unconstitutional law may be questioned at any stage of the proceedings under it, and by any of the different modes of raising the question. If the law is unconstitutional, further and useless expense and litigation should be prevented.

The wisdom of such elaborate and unduly prolonged inquiry in road cases, with the attendant expense to the county, is a matter for the legislature to consider; but it is my opinion, that since the constitution gives the right of appeal to a jury in court by parties dissatisfied with the award of the road viewers, it would be better to have the viewers consist of from three to six persons, one of whom should be learned in the law, to draw the report, to notify all persons who may be affected by the proceedings to file their claims in writing, with such detail and affidavits of experts as they may see fit to present, and require the viewers to decide all questions of values, damages, and benefits impartially and according to their best judgment within thirty days, unless the time shall be extended by the court. The right to appeal to court affords ample protection against insufficient or excessive awards. Such is the law and practice in several of our sister states. As, under the law of this state, the viewers may base their awards of damages upon their own judgment or inspection, without regard to the testimony: Antoinette Street, 8 Phila. 461; Barbadoes Street, 8 Phila. 498, there is no longer any necessity for a drastic examination and cross-examination of witnesses, in what has now come to be a mere preliminary inquiry.

Being of opinion that the act of May 6, 1887, is unconstitutional, we make absolute the rule to quash.

Thereupon J. Addison Campbell, one of the petitioners, took the appeal to No. 335, specifying that the court erred:

1. In making absolute the rule to show cause, etc.

2-4. In holding the act of May 6, 1887, P.L. 87, to be unconstitutional.

RUAN STREET.

On October 19, 1887, Joseph F. Brett and others, residents of the Twenty-third ward of the city of Philadelphia, presented to the court below a petition...