In re Brady Street

Mr. Justice Paxson delivered the opinion of the court, February 27th 1882. If this case can be sustained under the Act of 21th May 1878, P. L. 129, the court had jurisdiction, the proceedings are regular, and the judgment must be affirmed. The said Act provides, “ That in all cases where the proper authorities of any borough within this Commonwealth have, or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in case they fail to agree with the owner thereof for the proper compensation, &c., .... the Court of Common Pleas of the proper county,” on application thereto by petition, shall appoint Viewers to assess the damages. This was a petition to the Court of Common Pleas by the burgess of the borough of Muncy, for himself and the town council thereof, setting forth that said town council had by ordinance widened Petrikin’s alley to a street of thirty-seven feet in width, to be called Brady street, and praying for the appointment of five disinterested citizens to assess the damages for the widening of said alley. It will thus be seen that we have no question of a change of grade before us. It was a proceeding to widen an alley — nothing more. The first section of the Act of 22d April 1856, P. L. 525, provides expressly for the widening of streets and alleys in the respective boroughs of the Commonwealth. It says : “ Whenever the burgesses and town council of any borough shall open, ■or be about to open any streets or alleys therein, or to widen and extend the same,” the said burgesses and council may apply [595] by petition to the Court of Quarter Sessions for the appointment of seven disinterested freeholders to assess the damages. The sa-id Act further provides for the assessment for contribution upon the properties benefited, and for the collection of all such damages and assessments for contribution, in the same manner as other debts due such boroughs are by law collectible. The Act of 1878 contains no express repeal of the above recited Act of 1856, nor do we think it was repealed by implication. .Such mode of repeal is not favored, and will not be presumed unless there is a clear and strong inconsistency between the Acts: Street v. Commonwealth, 6 W. & S. 209; Cohen v. Commonwealth, 6 Barr 111; Commonwealth v. Easton Bank, 10 Barr 442. We are unable to see such inconsistency between the two Acts as w'ould justify the inference that the legislature intended the repeal of the earlier one. On the contrary, we think it clear no such repeal was intended. The provision for the assessment of benefits is omitted in the Act of 1878, which would not probably have been the case if it was intended to supply the Act of 1856. The Acts of 1878 and 1856 must be construed in pari materia. They are part of a system. As before observed, the Act of 1856 expressly provides for assessment of the damages where a street is opened or widened by the authorities of a borough. What then was the object of the Act of 1878 ? If we apply the familiar rule of interpretation, the old law, the mischief, and the remedy, the solution of this problem is not difficult. The mischief was that while the old law provided a remedy for assessing the damages to the property owner for taking his land in the opening or widening of a street, it afforded him no remedy where his property was injured by a change of grade. This principle was settled by the decision in O’Connor v. Pittsburgh, 6 Harris, 187; In re Ridge street, 5 Casey, 391. The Act of 1856 furnishes a remedy for this hardship, and was undoubtedly passed for that purpose and no other. It speaks of a change of the “ grade or lines” of any street or alley, and while the succeeding words, “ or in any way alter or enlarge the same,” might seem to apply to widening a street, yet, looking at the manifest object of the Act, we must read these general words in connection with such object. Tested by this familiar rule, it is manifest the general words referred to are qualified by the preceding special words, and that the Act has no application where there is no change of grade. It may be, although we do not decide the point, that where the town council of a borough direct the change of the grade of a street, and at the same time alter the lines thereof so as to widen it in whole or in part, whereby the land of a property owner may be taken, his damages, both for the taking of his land and the [596] change of grade, could be assessed under the Act of 1878. Otherwise two juries might be required to assess the damages sustained by the same owner, one for the change of grade and the other for the land taken. 'This proceeding was for the opening and widening of a street, without any reference to its grade, and is directly within the Act of 1856. The petition should have been filed in the Quarter Sessions. The Common Pleas had no jurisdiction. Under these circumstances, the objection that the petition of E. Bruce Petrikin to set aside the proceedings was filed too late, is without merit. It is a well settled principle that the want of jurisdiction may be taken advantage of in any stage of the proceedings. The order of the court below confirming the report of the reviewers is reversed and set aside, and the petition of A., W. Tallman, burgess of the borough of Muncy, is dismissed at the costs of the petitioner. Gordon, J., dissented.