Mauch Chunk v. McGee

• Decision Date: 08 May 1876
• Parties: Mauch Chunk <I>versus</I> McGee.
• Court: Pennsylvania Supreme Court

81 Pa. 433

Mauch Chunk versus McGee.

Supreme Court of Pennsylvania.

March 20, 1876.

May 8, 1876.

March 20th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Carbon county: Of July Term 1875, No. 21.

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C. Albright, for plaintiff in error.—The amendments of 1864 to the Constitution, do not require that the title to an act should be an index to all its contents: Yeager v. Weaver, 14 P. F. Smith 425; Dorsey's Appeal, 22 Id. 195; Allegheny Home's Appeal, 27 Id. 77; State Line and J. Railroad Co.'s. Appeal, Id. 429. The title of this act relates to building drains, &c., the act provides for enforcing payment; this was within the scope of the title and therefore valid: Pennsylvania Railroad Co. v. Riblet, 16 P. F. Smith 164. When a law has but one general object the provisions of the Constitution are accomplished: Cooley on Const. Lim. 144; State v. Powers, 14 Indiana 195; People v. Briggs, 50 New York 566; Philips v. Bridge Co., 2 Metc. (Ky.) 222; Smith v. Commonwealth, 8 Bush 112; Blood v. Mercelliott, 3 P. F. Smith 391; Church St., 4 Id. 353; Commonwealth v. Green, 8 Id. 226.

The council had authority under the General Borough Law of 1851, to build sewers, &c., and therefore to pass the ordinance: Fisher v. Harrisburg, 2 Grant 296; Greensburg v. Young, 3 P. F. Smith 280; McGonigle v. Allegheny, 8 Wright 121; Schenley v. Commonwealth, 12 Casey 57.

Portions of an act being unconstitutional, the whole is not necessarily so: Smith v. McCarthy, 6 P. F. Smith 359; Commonwealth v. Green, 8 Id. 226; Cooley on Const. Lim. 178. If a penalty be given by statute, but there be no provision for its recovery, debt will lie: Dwarris on Stat. 160, 231. Statutes are to be interpreted so as to sustain them rather than to set them aside: Howard Association's Appeal, 20 P. F. Smith 346.

E. J. Fox, for defendant in error, as to the constitutional question, cited Dorsey's Appeal, 22 P. F. Smith 195; W. Phila. Pass. Railroad Co. v. Union Pass. Railroad Co., 9 Phila. R. 495. The ordinance is unreasonable and oppressive, and therefore void: 1 Dillon on Mun. Corp., sect. 253, et seq.; Northern Liberties v. Gas Co., 2 Jones 318; Commonwealth v. Worcester, 3 Pick. 462; Decatur v. Murray, 16 Id. 125; Comyn's Dig. title "By-Law" C. 7; Boston v. Shaw, 1 Metc. 130; Hammett v. Philadelphia, 15 P. F. Smith 146.

Chief Justice AGNEW delivered the opinion of the court, May 8th 1876.

The court below thought that the second section of the Act of 24th of March 1869, Pamph. L. 514, was unconstitutional because too foreign to the title of the act. The title is, "An act giving the right to the town council of the borough of Mauch Chunk to build drains and sewers, and to file liens for the building of the same." It is settled in this state that a part of an act not within the subject stated in the title, may be declared to be unconstitutional, leaving the portion within the title to stand: Dorsey's Appeal, 22 P. F. Smith 192; Allegheny Home's Appeal, 27 Id. 77; Smith v. McCarthy, 6 Id. 359; Commonwealth v. Green, 8 Id. 234; Cooley's Constitutional Limitations 178. The first section is conceded to be constitutional. The real question, therefore, is whether the second section is germain to the same subject. Giving to the second section the interpretation it may reasonably have, we think it falls within the general subject of the title. It is the duty of the court to reconcile the different parts of a law, if it can be reasonably done, rather than to declare any part void, and thus frustrate the legislative action. The subject of the title is the building of drains and sewers in Mauch Chunk, and securing the expense of so doing. The true purpose of the second section is to enable the borough to collect the expense of building sewers and drains, built or to be built, from those who use them. The words "and the said charge may be discontinued when the borough is fully reimbursed for all the expenses and costs incurred in building and maintaining the said sewers, culverts and drains," were intended to put an end to the special yearly charge per foot where the owner of a lot had paid his proportion of the expense. This must be treated as mandatory, to guard against a continuing charge for construction, beyond the time of full payment; leaving the borough under its general powers, which are ample, to collect a reasonable and uniform charge from lot-holders for the use of the sewer, if they continue to use it. The purpose, as thus interpreted, being to enable the borough to collect the cost of construction from those who use the sewer, it is not so foreign as to be declared unconstitutional. The variations in the circumstances referred to in the second section are not an absolute departure from the subject itself. A sewer built before the passage of the act was not illegal, for the structure falls clearly within the powers conferred in the second section of the General Borough Law of 1851, 1 Br. Purd. 167. This borough being under that act, the sewer being legally built, it was substantially, though not literally, within the intent expressed in the title; that is, to authorize the borough to file liens for the building of the same, which substantially expresses the idea of securing and collecting the expense. The difference in the time of the construction of the sewer is evidently immaterial, not being absolutely repugnant to the main intent to authorize the building of sewers and collect the expense.

It is also objected that the remedy given in the second section is not by way of filing a lien, but by action of debt. This, however is only...