Loyalsock Township Road

26 Pa. Super. 219, 1904 Pa. Super. LEXIS 294

Opinion

Opinion by

Rice, P. J.,

Their report shows that the viewers did four things, subject, of course, to the approval of the court: («) they vacated a portion of the road at Miller’s run ; (b) they supplied its place; (c) they recommended that the road throughout its entire length be widened to fifty feet; (d) they assessed the damages.

It is urged that independently of the act of 1908, which it is claimed is unconstitutional, the road laws in force in Lycoming county do not authorize the accomplishment of these objects through one and the same set of viewers. Tire proper course, say counsel, would have been (1) to petition to change and vacate the old road, as provided by the act of 1836 ; (2) for the persons damnified to petition the court for the appointment of viewers to assess their damages under section 7 of that act; (3) after such change of location to petition under the act of 1850 to widen the changed road; (4) to ask for the appointment of viewers, under section 7 of the act of 1836, to assess the damages for such widening. We do not concur in this view.

Section 18 of the act of 1836, which conferred authority upon the quarter sessions “ to change or vacate the whole or any part of any public or private road which may have been laid out by authority of law, whenever the same shall become useless, inconvenient or burthensome,” declared that the court shall proceed therein by views and reviews, “ in the manner provided for the laying out of public roads and highways.” The manner then provided for the laying out of roads contemplated a separate view by six viewers upon the question of damages, which might be applied for by “ the owner of any land through which a public road shall be opened as aforesaid,” within one year from the opening of the same. But by the first section of the Act of February 24, 1845, P. L. 52, apply to Lycoming and some other counties, it is provided that the number of road and bridge viewers shall be three, one of whom shall be a surveyor, if deemed necessary. Unquestionably this section controls, whether the petition be for the appointment of viewers to lay out an entirely new road, under section 1 of the act of 1836, or to “ change or vacate ” under section 18, or to assess damages under section 7, or to widen under the act of 1850. But as the second, third and fourth sections of the act of 1845 relate in terms only to proceedings where viewers are appointed to “ view and locate' a public or private road,” it is argued that as to a proceeding to “ change or vacate ” no change was made in the law except as to the number of viewers. It would follow from the adoption of this construction that the damages accruing to the owners of land through which a public road may be located are to be assessed in the mode prescribed by the act of 1845, if the proceeding is under the first section of' the act of 1836, but if the proceeding is under the 18th section of that act they are to be assessed in the mode prescribed by the 7 th section thereof. It is appropriate in this connection to quote at some length the remarks of Chief Justice Paxson in Warriorsmark Road, 126 Pa. 305, as to the reasons which lead to the adoption of the Act of May 14, 1874, P. L. 164, for, owing to the similarity of the two acts, they seem to us equally pertinent in the construction of the act of 1845. He says : The prominent feature in this act is the change in the mode of assessing damages. It provides, as clearly as language can do, that the jury appointed to view and lay out a road, and also a jury of review, shall assess the damages caused thereby. To this extent the general road law of 1836 is repealed. The reasons which induced the legislature to make this change are not expressed in the act, yet it is not difficult to see why it was done. It simplifies the proceedings and makes them less expensive. This alone would justify the change. But there is another and more important reason. Under the old system the assessment of damages was a separate proceeding, by another jury, subsequent to the location of the road by the viewers and the approval of their report. It sometimes happened that the viewers located a road where it was subsequently ascertained that the damages for opening it were so large as to be greatly disproportioned to the public necessity for the road, and the ability of the township to pay.- In such cases had the jury of view also ascertained the damages they might well have hesitated to report in favor of the road. The expenses of opening a road, and the amount of damages to be paid to the landowners, are legitimate matters of consideration by a jury of view when they are called upon to decide upon the propriety of locating a road. We can readily understand, therefore, why the act of 1874 required the jury of view to pass upon both the location of the road and the assessment of the damages.” So here, having regard to the reason which we may safely assume influenced the legislature to pass the act of 1845, and to the familiar principles applicable in the construction of remedial statutes, we are unable to conclude that they contemplated the retention of the expensive, cumbersome and otherwise inconvenient mode of assessing the damages accruing to the owners of land through which a road may be located, where the proceeding is under the 18th section of the act, while providing a less expensive, simpler, speedier and more convenient mode of assessing the damages accruing from the same kind of injury, where the proceeding is under the first section of the act. This result can only be reached by assuming that by the use of the words “ to view and locate ” in the second section of the act of 1845 the legislature intended to exclude the case of a location of a road through a man’s land in the place of a road, or part of a road, vacated, for which we can find no warrant in the context, or by construing the words of the 18th section of thé act of 1836, “ in the manner provided for the laying out of public roads,” to mean the same as if the section had declared in express terms that the manner shall be the one existing at the time of its enactment. It is manifest, however, that the intent of the legislature of 1836 was to have but one mode of procedure whether the petition should be under the first or under the eighteenth section of the act, and we are convinced that we are effectuating it, and are not contravening that of the legislature of 1845, by holding that the “ manner provided for the laying out of public roads,” which is to be pursued where the petition is under the eighteenth section, is the manner provided by the law in force at the time and in the county when and where the petition may be filed; in this case the act of 1845, and not the seventh section of the act of 1836. Authority for this construction will be found in the principles enunciated in the analogous cases of Kugler’s Appeal, 55 Pa. 123, and Vernon Park, Philadelphia’s Appeal, 163 Pa. 70.

The act of 1836 did not confer power to widen roads. This was decided in 1843 in Church Road, 5 W. & S. 200, and again in 1848, in In re Liberty Alley, 8 Pa. 381. In the first cited case the court said : “ That object appears to be unattainable by any other process than vacating and laying out anew; and perhaps the subject requires legislation.” The defect in the law pointed out in these decisions was remedied by the Act of May 8, 1850, P. L. 713, whereby the courts of quarter sessions were given power,“ under the same rules and restrictions regulating proceedings for laying out and vacating public roads, to grant the orders for widening all such roads as are now, or hereafter may be, laid out, reserving to those persons who may consider themselves damnified the right of submitting their claims to a board of viewers, as is now provided in cases of laying out roads : Provided that no road shall in any case exceed fifty feet in width.” As already pointed out, under the procedure in laying out roads and the assessment of damages provided by the act of 1845 for Lycoming county, it was then, and still is, the duty of the viewers appointed to view and locate a road to endeavor to procure from the persons through whose lands the location may be made releases of damages, and failing in that, to assess the same and make report thereof. Manifestly, therefore, the assessment of damages caused by the widening of a road in that county is to be made in the same manner; that is, by the viewers appointed to report upon the proposed widening, and not by a separate board of viewers appointed specially for that purpose.

The act of 1850 may well be regarded as an amendment of the eighteenth section of the act of 1886 whereby the term “ change ” as used in that section was enlarged beyond' the construction previously given to it, so as to include a widening, as well as an alteration of location of parts of the road and the vacation of the parts supplied. There may be instances, and this appears to be one, where both kinds of “ change ” are needed in order to remedy existing inconveniencies. As the court has power to make them, and as the procedure is the same, why, when both are needed, one as much as the other, may not both be made in a single proceeding even though it be conceded that the act of 1903 is unconstitutional ? This would not only tend to the saving of expense and the prevention of delay, but would also be advantageous for other reasons, and none of the objections raised by the present appellant that we have thus far considered is sufficient to compel a negative answer to the question.

But it may be said, that, leaving the act of 1903 out of view, the damages to the owners of land through which a road is laid under the eighteenth section of the act of 1836 are, by virtue of the local Act of March 24, 1868, P. L. 464, payable by the township, whilst as to the damages accruing .from the taking of land 'in the widening of a road, .the general law was’ not changed by that act, and therefore, they are payable by the county. Even if this proposition were to be conceded, it is questionable, to say the least, whether it would be an insuperable objection to the joining of the two proceedings. But we deem it unnecessary to discuss or decide, that question, for we are of opinion that the proposition that in one ease the damages are payable by the county and in the other case by the township cannot be sustained.

The first section of the act of 1868 reads as follows: “ That all damages hereafter sustained by the owner or owners of any lands, tenements and hereditaments by reason of the laying out, altering or vacating the whole or any part of any public highway, road, street or alley in the county of Lycoming, shall be paid by the township, borough or city in which such lands, tenements and hereditaments are situate.” The contention is that the word “ alter ” as used in this act is synonymous with the word “ change ” as used in section 18 of the act of 1836, and that, as the latter, as used in that connection, was construed to mean a change of location only, and not a change of width, therefore it is to be presumed that the word “ alter ” was used in the same sense in this connection. But the reason why the word “ change ” was given this restricted meaning in the construction of the act of 1836, will be found, we think, in this remark of the court in Church Road, supra: “ As the question of width is determinable by the court, there seems to be no authority to widen.” It is thus seen that it does not follow, because by reason of the context, the word was given this restricted meaning in the construction of the act of 1836, that therefore it must be given the same meaning in the construction of subsequent road legislation, much less, that the word “ alter ” was used in the same sense in the act of 1868. True, it has.been held that “ the authority to alter a road is an authority to substitute a new road for an old one,” Millcreek Twp. v. Reed, 29 Pa. 195, but neither that case, nor any other authoritative decision to which our attention has been called would warrant us in holding, that when statutes authorize the altering of highways both by changing the location and by changing the width, a subsequent statute directing how the damages sustained by “ altering ” shall be paid, must be construed to apply to the former kind of change only. -The legislature having used a term, which, in its popular acceptation and as defined by the lexicographers, is comprehensive enough to include both kinds of change, the courts ought to give it that construction, there being no settled rule of law affixing a different meaning to it, and there being nothing in the context, or in the legislation of which the act forms a part, from which it reasonably can be inferred that the legislature intended it to have a more restricted effect. We therefore concur in the conclusion thus expressed'by the learned judge below: “We are also fully satisfied that the word ‘ altering ’ as used in this act of 1868 is sufficiently broad to cover the widening of a road as contemplated by the Act of May 8, 1850, P.' L. 713, above recited. Lexicographers define the word ‘ alter ’ to mean, ‘ To cause to be different in some respect; to become different in some'respect or to some extent; to vary in some degree without an entire change.’ These definitions would seem to us to fully warrant the construction we have here given to the word ‘ altering ’ as used in this act.”

Was this local act repealed pro tanto by the Act of April 3, 1903, P. L. 137, entitled “ An act, to widen and alter, or to widen or alter, public roads, in townships in this commonwealth, connecting a city with a city, a city with a borough, or a borough with a borough; and providing for the assessment of damages, and their payment to persons injured by such altering or widening ? ’’ This question is raised by the alternative form of the viewer’s report, whereby it was directed' that the damages should be paid by the township, in the event and that event only, that the court should be of opinion that the county is not legally liable therefor. It is clear, therefore, that they did not impose them upon the township in the exercise of the discretion attempted to be vested in them by the second proviso ; indeed they recommend specifically that they be not imposed upon the municipalities mentioned in that proviso. In that event the act of 1903 declares that they shall be “ awarded and paid, according to the provisions of the act of June thirteenth, one thousand eight hundred and thirty-six, and its supplements.” There are several acts of June 13', 1836, and many more passed subsequently, some so-called, and others in effect, supplements thereto. There is grave doubt in our opinion whether this mode of providing how the damages shall be awarded and paid in the special class of cases mentioned in the title is in conformity with the salutary provisions of section 6, article 8 of the constitution. We do not deem it necessary, however, to extend this opinion by a discussion of that question, for upon a proper interpretation of the act we think it does not repeal the local act of 1868, nor affect its application to a case, where, as here, the viewers report against the imposition of the cost and damages upon the municipalities mentioned in the second proviso of the act of 1903. The act does not contain the usual repealing clause, an omission, which, while not conclusive of the question, Commonwealth v. Summerville, 204 Pa. 300; Jadwin v. Hurley, 10 Pa. Superior Ct. 104, is significant as indicating the intention of the legislature. It was not passed to carry into effect any provision of the constitution. It does not purport to be a revision of the laws regulating the altering of roads either by widening or changing location, nor does it attempt to establish a new and comprehensive rule upon that general subject. Hence the principle upon which Chalfant v. Edwards, 176 Pa. 67, and kindred cases were decided does not apply. None of its terms or provisions indicates a clear intent to abrogate, wholly or pro tanto, the existing system of changing, vacating and widening roads and the assessment of damages in counties where the act of 1845 applies. On the contrary, the very indefiniteness of the language used, and the presumably deliberate omission of a repealing clause, tend to show that the legislature had in mind the general rule, that a general statute, without negative words, does not repeal a previous statute which is particular though the provisions of one be different from the other. We fully recognize the right of the legislature to express its will in any form, affirmative or negative that it pleases, so long as it does not transgress constitutional prohibitions, and the principle that whether the question be as to the implied repeal of a prior local or a prior general statute, the intention of the legislature must control: See Rodebaugh v. Philadelphia Tr. Co., 190 Pa. 358; McCleary v. Allegheny Co., 163 Pa. 578. But while the rule above stated is not an unbending one, to be applied without regard to other evidence of the. legislative intent, we nevertheless feel confident, from a consideration of the act as a whole, and a view of the entire' course of legislation upon the subject, that we are more likely to carry out the actual 'intention of the legislature by holding that the rule applies here, than by holding otherwise. See Morrison v. Fayette Co., 127 Pa. 110; Rymer v. Luzerne County, 142 Pa. 108; Murdock’s Petition, 149 Pa. 341; Commonwealth v. Philadelphia & Erie R. R. Co., 164 Pa. 252; Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6; s. c., 178 Pa. 308.

We therefore conclude that whether the act of 1903 be valid or not, there was ample legislative authority for the action of the viewers as described at the outset of this opinion, but that they had not authority to impose the damages awarded by them upon the county. Under their findings they are payable by the township, by force of the act of 1868.

As the viewers reported that the appellant will not sustain damages beyond the benefits that will be conferred by the alteration of the road in the manner described, the question whether the statutes governing the proceeding contemplate the recovery of damages by a corporation having a mere easement in the highway need not be discussed.

The viewers assessed no damages against such corporations, because in view of the expenses that they will incur in conforming their properties to the widened and altered road, they did not think it just to do so, “ and,” to quote their language, “ we, therefore, make no such assessment, upon the condition, however, that said corporations will so change the location of their .... railroad and poles, as to conform to the said road as widened.” Manifestly, what they call a condition is a mere-nullity.' It relates to a matter concerning which neither they nor the court had jurisdiction to make any order in this proceeding, it can be given no effect in any other proceeding in which the rights and duties of these corporations may be involved, and in the event of a breach of it neither the viewers nor the court can revise their findings as to damages and impose any part thereof upon them. There is no conceivable way in which it affects, or can affect, prejudicially the appellant, and, therefore, is not necessarily fatal to the report, but may be rejected as surplusage: In re Road in O’Hara Twp., 87 Pa. 356.

The order is affirmed, the costs of this appeal to be paid by the Montoursville Passenger Railway Company, the appellant.