In re Airy Street

Mr. Justice Gordon delivered the opinion of the Court, Did the Act of May 19th, 1871, entitled, “ An Act relating to streets in the several boroughs of Montgomery county,” impose upon the county the damages assessed to the owners of property on the laying out, opening or widening of streets, roads or alleys in any of the said boroughs, we would agree with the counsel for the county that the Act was unconstitutional and void. In such case the title to the said Act would have to be regarded as wholly defective, since it affords no notice that it embraces anything relative to the county. But as there is nothing apparent in the statute which at all affects the county, or expresses an intention to make such damages payable out of its treasury, we cannot, for this reason, which has been urged by the counsel for the .plaintiff in error, pronounce the Act unconstitutional. It will be observed that” both the Borough Act of 1851 and the general road law not only provide for the assessment of damages upon the laydng out of streets and roads, but also prescribe how they shall be paid, whilst the Act of 1871 only directs the method by which such damages shall be assessed, and says nothing as to their payment. They are to be assessed under the General Road Act, but as there is no direction for their payment, the Borough Act remains, in this particular, unaltered, and to it we must resort in order to learn how those damages, when ascertained, are to be liquidated. It is urged, indeed, on part of the defendant in error that as the damages are to be assessed under the Act of 1836 they must be paid according to the directions of that Act. This might be so if the assessment necessarily involved payment by the county, but it does not, for the two things are essentially different. There is no reason why the Legislature might not direct that on the taking of land by a railroad company, in exercise ,of its right of eminent domain, the damages to the owner should be assessed under the provisions of the general road law, but in such case it would not follow that the [287] county must pay those damages when assessed. It is clear, therefore, that unless the Act of 1871 imposes this burthen upon the county it cannot be made to bear it. This Act must be construed as supplemental to the charters of the several boroughs in the county of Montgomery, and when in them we find provision for the payment of damages, we certainly cannot assume that a supplement which involves only their mode of assessment, is to be extended by implication so as to compel their payment out of the county rather than the borough treasury. It follows that as the Court of Quarter Sessions neither has made, nor can make, any order affecting the county of Montgomery, it, the said county, has no standing to maintain the certiorari now before us. The judgment of the Court below is affirmed.