Allegheny County Commissioners' Case

61 Pa. Super. 591, 1915 Pa. Super. LEXIS 377

• Court: Superior Court of Pennsylvania
• Decided: November 29, 1915
• Docket: Appeal, No. 44
• Status: Published

Opinion

Opinion by

Kephart, J.,

An appeal from an order of the court in relation to a public road is in the nature of a certiorari. Neither the testimony nor the rulings of the court on the admission of evidence, nor the findings of fact, however unwarranted, are brought up with the record on the certiorari: Manheim Township Road, 12 Pa. Superior Ct. 279; In re Diamond Street, 196 Pa. 254. All the assignments of error relating to the admission of evidence or the conclusions of fact are overruled.

The action of a grand jury influenced by fraud or improper conduct may be set aside by the court. If the court, in the exercise of a proper discretion, refuses to act, this court will not interfere unless the facts to sustain the charge of fraud or improper conduct be such that we may say that the court, in thus refusing to act, abused its discretion: Walnut Street, 24 Pa. Superior Ct. 114.

Certain statements of County Commissioner O’Neil, made at the hearing before the grand jury, are submitted as being an intentional effort to wrongfully and improperly influence the jurors in the investigation of the desirability of the proposed tunnel. In hearings before a grand jury in matters of public importance, which are required by law to be submitted to them, wherein they are supposed to act as a check on the actions of county officials relative to the expenditure of county money, the procedure incident to the hearing is not controlled by the strict rules of law, as is required in the submission of 'matters to a traverse jury. The hearing should be free and open, aiming to secure the widest scope of reliable information, so that they may intelligently pass on the question before them. Their decision as to the measure of usefulness to the public of projects such as this, is to a large extent speculative, as is the decision of similar bodies on like questions. There is nothing in the law which prohibits the county commissioners or any interested citizen from appearing before such grand jury. In the protection of county; monies it is the county commissioners’ right to be present. ' They are the business managers of the county and as such, acting within their authority, they are held responsible for the successful administration of public affairs. To a large extent they are the originators of projects snch as this, looking toward the advancement of the general public welfare. Commissioner O’Neil, in stating to the jury the aims, objects and feasibility of the proposed plan' and the probabilities of largely increased future county development from its accomplishment, was clearly within his right as an official. It is not contended that anything he said to the grand jury was based upon motives of personal advantage to himself or any one interested with him but, on the contrary, it appears that he acted in good faith, honestly believing his statements would be borne out. We cannot say, in the absence of fraudulent motive, that the court abused its discretion in declining to set aside the grand jury’s report.

Appellant contends that the Act of May 11, 1909, P. L. 506, is unconstitutional for the reasons: (1) that its title is defective. The title reads as follows: “No. 285. 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 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.” It here clearly appears that the title refers to the construction, operation, and maintenance of highways, bridges, and tunnels in the several counties of the Commonwealth. An examination of the several sections of the act will show that they exhibit a comprehensive plan Avhereby its purpose may be successfully carried out, and contain nothing not clearly covered by the title of the act. The title need not be an index of the contents of the act. It need only give a reasonably clear notice of the matter to be found in it: Commonwealth v. Keystone Benefit Association, 171 Pa. 465. Appellant does not argue that the title does not contain an adequate reference to the subject-matter of the act, but urges that when effect is given the act in its widest scope, it invades a field previously covered by a system of laws which should not be disturbed, modified or in part repealed without ample notice. That the Commonwealth by many enactments has confided to cities the exclusive control of its streets and that this grant of authority to the counties was such a radical change in these laws as ought to require some specific notice of the legislative intention. In answering this argument it must be remembered that it is the duty of the courts, in passing on the constitutionality of an act of assembly of general application, to consider it so as not to localize it to one section of a community, but in the light of the purpose to be accomplished throughout the entire State and the laws already in existence relating to such purposes as they may affect the act in question. It is admitted that all the highways in the Commonwealth are within the grasp of legislative control. Cities have no vested right in their highways, their business, charter rights, corporate powers or corporate existence: Commonwealth v. Moir, 199 Pa. 534. The construction, supervision, and maintenance of highways may be taken from one municipality and given to another as the legislature may deem proper. When considered in connection with the laws affecting our highways in general, we do not regard the present legislation as being a radical or revolutionary change. It is merely another step forward along lines already laid down and extending an authority before in existence. Early in our history counties have had the exclusive control of sections of highways in each bridge they constructed thereon. Within recent years, under the county road act, they may take over portions of township roads, reconstruct and maintain them. They have been charged with the cost, supervision, and maintenance of condemned turnpikes and toll bridges and the supervision and maintenance of abandoned turnpikes. They have been authorized to construct bridges entirely Avithin municipalities connecting streets therein and over streams forming the boundaries betAveen counties. The State highivays have taken a large percentage of roads from local control. There seems to be a groAving tendency to centralize this control of the main arteries of travel, either in the counties or in the State. The first change in our laivs vitally affecting our road system Avas in the county road Act of 1895. In passing on the constitutionality of this act, the title to Avhich Avas in question, and that title is substantially the same as the title being at present considered, and in discussing the counties’ invasion of the exclusive control of tOAvnship authorities over their roads, President Judge Rice says: Middletown Road, 15 Pa. Superior Ct. 167: “No legislator or other person reading the comprehensive title of this act Avould naturally and reasonably be led to suppose that a law prescribing a mode whereby what is ordinarily known and spoken of as a township road may be made a county road, would not- affect' the poAvers and duties of townships and their officers with reference to the establishment, maintenance and control of such road. On the contrary he Avould naturally and reasonably infer that something more was in contemplation in making such improved highAvays ‘county roads’ than a mere change of name, and that duties would be imposed and powers conferred on the county with reference to them. The title plainly invited inquiry into the body of the bill as to the nature and extent of those powers and duties, and this, under the authorities, is all that was required, We cannot see that the title is open to criticism; it certainly is not in the particular specified by the appellant.” The reasoning applies with equal force to cities under the Act of 1909. The word “counties” as used in this act is broad enough to give notice to, and include, all its subdivisions and when used in legislation it reaches to each part of the county without further notice. In City Avenue and Germantown Bridge, 164 Pa. 394, it was held under the Act of May 8,1876, “being an act to authorize the acquisition by the several counties of this Commonwealth for the use of the county bridges, etc., that “counties” embraced the condemnation of a toll bridge within the City and County of Philadelphia. Section 16 of the present act preserves to a large extent the authority of cities over its territory which may be embraced in any proposed undertaking. The city, for all useful purposes, before granting its consent to any infringement of its rights or authority, may preserve by agreement with the county any of those rights or authority as it deems necessary. While the cost of construction and the cost of maintenance may pass to the county if the city so desires, there is nothing to prevent the city from retaining its sanitation and fire control over and along the proposed street or tunnel. We do not consider the title to the act defective.

(2) Another objection, that the act violates the constitutional provision as to uniformity of taxation, has been fully answered by this court in Middletown Road case, supra, Commonwealth, ex rel., v. Bowman, 35 Pa. Superior Ct. 410, affirmed in Clarion County v. Clarion Township, 222 Pa. 350, and recently repeated in Winters v. Koontz, in an opinion handed down last May, affirmed by the Supreme Court during the present month.

(3) Nor do we regard the act as offending against Article III, Section 7, of the Constitution, relating to local or special laws. It applies generally to all counties and their subdivisions throughout the State. Lehigh Valley Coal Co.’s App., 164 Pa. 44; Ruan St., 132 Pa. 257. If it were necessary to give full effect to the act and sustain its constitutionality by changing the word “or” to “and” there is ample authority for so doing: Seabolt v. Commissioners, 187 Pa. 318; Commonwealth v. Green, 58 Pa. 226. The act in question permits the construction of tunnels in cities, townships or. boroughs or in and between cities, townships or boroughs.

(4) The objection that the consent of the city was not had as required under Section 16, is without merit. That contingency arises only when the city’s property rights or authority are affected. Until that is done, the county is not required to ask the city for an agreement. It is not a condition precedent to the institution of the proceedings under the act.

The assignments of error are overruled, and the decree of the court below is affirmed.