In re Public Highway Tunnel
| Decision Date | 01 July 1916 |
| Docket Number | 61 |
| Citation | 99 A. 225,255 Pa. 88 |
| Parties | County Commissioners' Petition for the Construction of a Public Highway Tunnel |
| Court | Pennsylvania Supreme Court |
Argued April 27, 1916
Appeal, No. 61, Oct. T., 1916, by Oliver McClintock, et al from judgment of the Superior Court, affirming order of Q.S Allegheny Co., Nov. Sess., 1914, No. 1, dismissing exceptions to report of grand jury in the Matter of the Petition of the County Commissioners for the Construction of a Public Highway Tunnel. Reversed.
Appeal from the Superior Court.
The facts appear in the opinion of the Supreme Court and in 61 Pa.Super. 591.
The Superior Court affirmed the order of the Court of Quarter Sessions, dismissing exceptions to the findings of the grand jury, approving the petition. Oliver McClintock, et al., appealed.
Error assigned was the order of the Superior Court.
The last mentioned assignment is dismissed and the others are sustained; both the order of the Quarter Sessions and the judgment of the Superior Court are reversed, and the proceedings are set aside.
H. F. Stambaugh, with him Ernest C. Irwin, Watson & Freeman, Aronson & Aronson and Kinnear, McCloskey & Best, for appellants. -- The Act of May 1, 1909, P.L. 506, is defective because its title gives no notice that the county commissioners may construct and maintain the improvements authorized by the act within cities or boroughs of the State: Busher v. Northumberland, 209 Pa. 618.
The act gives no notice of the new burdens which its operation will impose upon counties: In re Road in the Boro. of Phoenixville, 109 Pa. 44.
The title fails to indicate that the county commissioners are vested by the act with power to construct tunnels and highways at public expense, within cities, whereas before no one but the city could do so: Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593.
J. Rodgers McCreery, with him Lee C. Beatty, County Solicitor, for appellee. -- The title gives sufficient notice of the contents of the act: Minsinger v. Rau, 236 Pa. 327; Commonwealth, ex rel., v. Broad St. Rapid Transit Ry. Co., 219 Pa. 11; Middletown Road, 15 Pa.Super. 167; City Avenue & Germantown Bridge, Williams's App., 164 Pa. 394.
Before BROWN, C.J., MESTREZAT, POTTER, STEWART and MOSCHZISKER, JJ.
This case concerns the constitutionality of the Act of May 11, 1909, P.L. 506, entitled: "An act providing for the construction, operation, and maintenance of public highways, bridges and tunnels in the several counties of this Commonwealth; authorizing the taking of property for such improvement, and providing for the compensation therefor and the damages resulting from such taking; providing for the payment of the costs and expenses incurred in such construction, operation, and maintenance; and authorizing the levy of a tax and the issuance of bonds to provide a fund for said purpose."
The commissioners of Allegheny County, under and by virtue of the power and authority intended to be vested in them by this legislation, attempted to construct a tunnel within the limits of the City of Pittsburgh; in a proper proceeding the constitutionality of the act was attacked; the Quarter Sessions decided it valid, and directed work thereunder to be proceeded with; this order was affirmed by the Superior Court, and we allowed the present appeal. Here the constitutionality of the statute is contended against on several grounds, but the chief of these is the alleged insufficiency of its title.
Before entering upon a consideration of the question just indicated, we shall briefly review the act itself. Section 1 provides that "whenever the commissioners (of any county), or a majority of them, shall, by resolution duly adopted, deem it expedient so to do, and upon approval thereof by a grand jury and the Court of Quarter Sessions," they may "cause to be constructed, operated, and maintained, . . . a public highway, bridge, or tunnel, or bridges and tunnels, or bridges, tunnels, subways or underground roads within the cities of this Commonwealth . . ."; and that any tunnel so constructed shall thereafter be a county tunnel, the duty and cost of "maintaining the same and keeping in repair" to be borne by the county. Sections 2 to 9, both inclusive, provide for procedure; the next two sections deal with the subjects of plans, estimates and contracts for improvements constructed under the act; Section 12 authorizes county commissioners "to make and enter into a contract or lease with any street railway or transportation company" for such "concurrent use" of any "public highway, bridge or tunnel" constructed by them as shall not "substantially impair or restrict the public use and enjoyment thereof, . . . upon such terms and conditions as shall be agreed upon," the contract or lease to be "approved by the Court of Quarter Sessions"; Section 13 gives the same officials power and authority to levy taxes upon "all real and personal property" within their respective counties, "now or hereafter taxable for county purposes," in order "to pay all costs, damages and expenses required in locating, opening, constructing, maintaining, and repairing public highways, bridges, or tunnels constructed under the provisions of this act"; Section 14 authorizes the issuing of bonds; Section 15 provides for a sinking fund; and Section 16 is as follows: "Should any board of county commissioners, in the exercise of the powers herein conferred, deem it necessary or advisable to enter upon a highway, or highways, in any city, or borough, or take any other action affecting the property rights, or authority of such city or borough, for the purpose of constructing or maintaining a highway, bridge, or tunnel approaches, or otherwise, the consent thereto of such city or borough, by ordinance, shall be first had and obtained."
It may thus be seen we have a title, "Providing for the construction, operation and maintenance of public highways, bridges and tunnels in the several counties of this Commonwealth," with an act expressly authorizing county commissioners to lay out, open, construct, and maintain highways, bridges and tunnels, or underground roads "within cities of this Commonwealth"; a power over city works of this character such as county commissioners never theretofore had or exercised, and which, so far as it existed, for more than a century had been vested exclusively in the proper authorities of the several municipalities of the State. Again, the act places the cost and expense of constructing and maintaining such improvements "within cities" entirely upon the counties in which the municipalities affected happen to be geographically located, thereby putting upon such counties a financial burden differing essentially from any to which they had theretofore been subjected. Finally, the act empowers county commissioners to lease or contract with "railway or transportation companies" for the use of such public highways, bridges or tunnels, thereby conferring upon county authorities the right to control highways and transportation facilities within the limits of the cities of the Commonwealth, and thus effectually interfering with the serious problems of city planning and transportation, which theretofore were exclusively within the control of municipal authorities.
It is not contended that the general assembly lacked authority to make these radical changes, but that the title here in controversy is not sufficiently clear to give notice of an intention so to do. The controlling question in the case is reduced to this: is the phrase "in the several counties of this Commonwealth," contained in the title, when taken with its context, sufficiently comprehensive to put those who might be specially interested in the subject on inquiry as to whether it was the legislative purpose to make changes of the character which this act attempts to work. The provisions of the statute deal with the subject of "highways" in cities, in the broad sense of that term. If the words, contained in Section 1, "within cities," had been...
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