In re the Extension of North Street

1 Pears. 199

• Court: Dauphin County Court of Quarter Sessions
• Decided: May 14, 1860
• Status: Published

Opinion

By the Court.

A petition was filed on February 1st, 1860, asking for the appointment of viewers for opening a street, “commencing on the street or public road at a point at or near the northeastern termination of North Street in the borough of Harrisburg, and thence to the northeastern line of the borough near George Sheeye’s.” Pursuant to the prayer of the petitioners, twelve viewers were appointed in accordance with a special act relating to said borough, who, on February 25th, proceeded to lay out the street for public use, and made report to April Sessions following. Their report was filed for confirmation April 23d; and on the 28th, exceptions to the report were filed by G. W. Harris. The first exception relates to the point of commencement, which was not on the public street or road near the termination of North Street, but on a private road west of the public, from whence it proceeded to cross the public street. The other exception is, that this court has no power to act on the report, the law under which it was made having been repealed before the same was presented by the viewers, or acted on by the court. The report was confirmed nisi, and the width of the road fixed by the court two days before the exceptions were filed. The regularity of the view in regard to the place of commencement admits of grave question ; but we forbear to decide that point, being of the opinion that the other is fatal to the proceeding. On March 19th, 1860, an act was passed incorporating the city of Harrisburg, the 33d section of which created a special commission to lay out streets, lanes, and alleys in the city, according to a general plan or system, and conforming as nearly as practicable with the course and width of the streets and alleys already in existence; a plan of all which is to be submitted to and approved by the Court of Quarter Sessions, and the same to be opened from time to time according to that plan. The last section of the law repeals all acts relating to the borough of Harrisburg inconsistent with the law thus enacted. There is no saving in favor of proceedings then pending; but the aid of the 46th section is invoked by those in favor of the report to show that the act of 1817, under which the view was had, remains in full force. That section provides in substance that all acts of Assembly now in force touching or concerning the borough of Harrisburg, and all laws and ordinances not inconsistent with this act shall remain in force until the same shall be re-enacted, repealed, altered, or supplied by other acts of Assembly, or by-laws or ordinances enacted by the city. In our judgment the provisions of the city law is entirely inconsistent with that relating to laying out streets in the borough. It creates a new tribunal for the purpose, and endeavors to establish a scheme of uniformity between the new and old portions of the city. The two systems cannot stand together.' It was manifestly the design of the legislature to abolish the old and establish the new. The 46th section was mainly intended to preserve the ordinances and by-laws of the borough until others should be enacted by the city authorities; but it also embraces such statutes as are not in their provisions inconsistent with the city charter. All which are, cease to be obligatory. What effect has the repeal of the law on the preceding report? It was not made by the viewers until the law under which they acted was repealed, although the statute was in full force when they viewed and located the street. The report had to be confirmed nisi by the Quarter . Sessions, the width to be fixed, and after laying over till August Sessions could be confirmed absolutely. In the meantime, those opposed to the location had the right to demand a review. Could the court prove by review and re-review to locate the street after the law had been repealed, merely because the proceeding had been commenced during its existence? To ask the question presents the obvious answer. At what time then did our power cease? Most manifestly on the repeal of the law. All was struck dead eo instanti just where the repeal found it. In North Canal Street Noad (10 W. 351) it is decided that “ proceedings commenced under the provisions of a statute are arrested by the repeal of the statute; every act done towards their completion after the repeal is void.” The facts of that case, when examined, will be found much stronger in favor of the proceedings than in this; as they had progressed nearer to completion. In Abbott v. The Commonwealth (8 W. 517), it is held that “the repeal of a statute, pending a proceeding under it, puts an end to the further prosecution of it, unless there be a saving clause in the repealing act.” The same principle is settled in 4 Dall. 373; 1 Binn. 601; 1 Wash. C. C. N. 84. A proceeding which Avas imperfect when the act of Assembly under Avhich it was begun expires, cannot be perfected aftenvards. What is done hereafter is void (Stoever v. Immell, 1 W. 258).

It is established that where a remedy has been given by statute, and procedings instituted under it, but during their pendency the law was repealed, that the remedy was thereby taken away, and further proceedings to enforce it were illegal (Commonwealth v. Beatty, 1 W. 382). It was decided in a road case that “ no proceedings could be pursued under a repealed statute, though begun before the repeal, unless by a special clause in the repealed act. Therefore, under the act of 6th April, 1802, repecting roads, proceedings under former laws, thereby repealed, cannot be continued (4 Y. 392). It was held that “proceedings under are-pealed act cannot be completed after the repeal of the act; but they will be handed over to be finished under the new act” (Fenelon’s Petition, 7 Barr, 173). To take that course with the proceedings under consideration is to throw it into the general mass of streets to be laid out by the commissioners. In Hampton v. The Commonwealth (1 H. 329), it is decided that “ where the law requiring a street to be opened was repealed after the damages had been assessed, but before the opening, all proceedings to recover damages were void; the whole matter being ended by the repeal of the statute.” It was held that proceedings commenced under an act which was repealed before their completion, are not revived by a repeal of the repealing act (Commonwealth v. Leech, 12 H. 55). The case which at first glance would appear most like supporting this proceeding is that of Uwchlan Township Hoad (6 C. 156); but when examined that case conforms to all tlie others cited. It is there held that the act of 28th April, 1857, changing the number of viewers in road cases in Chester and Lancaster counties did not affect cases pending. “Where the jurisdiction of any subject-matter depends upon a special act of Assembly, the proceeding falls of necessity if the law is repealed before it is terminated; but an act changing the mode of proceeding will not have that effect.” Our case depends on a special act of Assembly relating to the borough of Harrisburg, varying in some essential particulars from the general law. The act which substitutes the commissioners instead of the viewers to lay out streets, etc., introduces a new system entirely inconsistent with the old; consequently, the latter must fall, as the latest expression of the legislative will is binding and must be our guide. Even if there was no repealing clause in this law, the inconsistency between the two systems would operate as a repeal without one (Johnstone’s Estate, 9 C. 511). If it were a mere change in the number of viewers, I am satisfied that it would not end the proceedings, as in appointing viewers on any subsequent view we could conform to the new law. But the act of Assembly chartering the city creates a new system and entirely abolishes and takes away the jurisdiction of the sessions to appoint viewers.

The report falls for want of power in the court to confirm it.