Vacation of Henry Street, Allegheny City

[353] OPINION, Mr. Justice Clark: The Court of Quarter Sessions of the proper county has authority to inquire of, and to vacate the whole or any part of any public road, whenever the same shall become useless, inconvenient, and burdensome: act of June 18, 1886, P. L. 558, § 18; whether the same was originally laid out by authority of law or existed by prescription, or lapse of time: act of April 21, 1846, P. L. 416; also to vacate roads laid out, but not opened: act of June 18, 1836, § 19; also roads opened in part only: act of May 3, 1855, P. L. 422. But these powers, by the express words of the acts of 1886 and 1855, are not exercisable in the vacation of any street or highway within the limits of an incorporated borough or city; and, as the act of 1846 is in pari materia with the acts of 1836 and 1845, it has been held, that the Court of Quarter Sessions have no power under that act to vacate a street in a borough or city, dedicated by the owner to the public use: In re vacation of Osage Street, 90 Pa. 114. By the special statute of May 10,1871, P. L. 704, the Court of Quarter Sessions of Allegheny county have power to vacate the whole or any part of any street, etc., laid out in any borough incorporated therein, in case the same has never been opened or used by the public. It is plain that none of these statutes has any application whatever to the case in hand, for the authority in none of them extends to the vacation of a street or highway in an incorporated city. This is a proceeding, however, under the act of May 8, 1854, P. L. 645, which provides that the Court of Quarter Sessions of the proper county shall have authority to vacate any private or public highway, whether laid out by the public or by private owners, whenever, by reason of forming town plots or otherwise, they shall become useless to the public, and to those having lands bounding thereon. The method of procedure is specifically defined, and is, in most respects, different from the methods pursued under the act of 1836. Tt is contended that this act of 1854 should be construed in pari materia with the acts of 1836 and 1855, and that the restrictions contained in those acts should be held to apply to it as part of the general system. But that the act of 1854 was intended to apply to incorporated cities is manifest: not only is the act general in form, embracing all cities within its terms, [354] but it expressly provides that “in any city” the rule to show cause shall be published in one or more newspapers twice a week, and in other parts of the state once a week, etc. It is plain, we think, that the restrictions imposed by the acts of 1836 and 1855, in this respect, were not intended to apply in proceedings under the act of 1854. It is equally plain, also, from the specific and peculiar methods of procedure defined and established by the act of 1854, that the proceedings are wholly independent of, and are, therefore, not to be regulated by the practice under the acts of 1836 or 1855. Whenever, therefore, a case is presented covering the conditions specified in this act, whether in an incorporated city or elsewhere, the Court of Quarter Sessions of the proper county must take cognizance of it. If this proceeding had been in the forms prescribed by the act of 1836, it is plain that it would be irregular and could not be sustained; that was the precise question in In re Osage Street, supra. From the petition we learn that before that portion of what is known as Pleasant Valley, in the Second ward of Allegheny, was taken into the city, a public road or highway was laid out and dedicated to the public use by the proprietor according to a plan duly recorded, to run from Taggart street across Brighton road to connect with another highway running to Washington avenue; that this highway was known as Henry street and was thirty feet wide ; that a portion of this street has been abandoned and closed, only that part remaining which extends from Taggart street to Brighton road, a distance of one hundred and fifty feet; that the highway aforesaid and the adjoining property has been taken into and now constitutes a part of the city of Allegheny, and that by reason-of forming-of town plots and other matters specifically set forth, Henry street has become useless to the public and those having lands bounding thereon; it is upon these grounds that the vacation is prayed for. This certainly presented a case within the provisions of the act of 1854, and as the petition and proceedings are plainly under the provisions of that act, we are clearly of opinion that the court had full jurisdiction of the case. It is contended, however, on the part of the plaintiff in error, that even if this be so, by the thirteenth section of the more recent act of May 23, 1874, P. L. 230, the exclusive con [355] trol and direction of the opening, widening, narrowing, vácating, etc., of all streets, etc., within the limits of all cities in this commonwealth is vested in “the municipal authorities and the courts having jurisdiction ” in such cases; that this jurisdiction must be exercised by the courts in conjunction with the municipal authorities, and that as the city of Allegheny has in no way consented to or recommended the vacation of Henry street, the courts cannot entertain jurisdiction. Without entering into any discussion of the purpose of this provision of the act of May 23, 1874, it is a sufficient answer to this contention that the city of Allegheny has not accepted or become subject to the act of 1874 nor to the act of April 11, 1876, P. L. 21, which is a supplement thereto. It is true that certain sections of this act of 1874 might appear to apply to all cities whether its provisions have been formally accepted or not, but a careful reading of the statute shows that these sections are applicable only to all cities of whatever class which by the terms of the act or by their acceptance have become subject to its provision. was to establish a uniform and general system of government for all the cities of the commonwealth; it was not designed, however, to work a repeal of any municipal charter previously created by special enactment; yet, when the municipality voluntarily relinquishes the same and accepts the provisions of the act of 1874, in the manner designated therein, or suffers a repeal of its charter, the effect in either case is to bring the city or its inhabitants within the provisions of the general law of the state. The act applies not only to any city accepting its provisions, but to all c-ities hereafter to be created; it may be said, therefore, to apply to all cities of the commonwealth, as ultimately all may become subject to it without the re-enactment of any of its provisions. As it is admitted that the city of Allegheny has never in way become subject to the act of 1874, no question arises the proper construction of the thirteenth section or upon constitutionality of that act; it will be time enough to consider those questions when they are properly presented. a private way laid out the owner of the soil, and that notice of this proceeding [356] bas not been given to all persons having interests and rights therein, nor has their consent been obtained as required by the act of 1854. This is plainly an afterthought. The petition sets forth that it is a “ public road or highway ” and that it was taken into the city of Allegheny as such. Upon presentation of the petition, a rule was entered to show cause why said “ public road or highway described in said petition and known as Henry street should not be vacated.” The exceptions filed do not deny that Henry street was a highway; on the contrary, it is described as “ Henry street,” and the thirteenth exception states that “ proceedings have already been commenced by the citizens residing in the vicinity of said street to have the same graded and paved by the city councils.” The record clearly exhibits a proceeding to vacate a public highway and a decree thereon in due form, and there is nothing to show that it was not a highway, unless it be an inference from the statement that it was originally laid out in a plan of lots by George Breed, the proprietor, in the year 1859; but, assuming this, the acceptance of it by the city would constitute it a public highway, and the decree of the court as to this, we think, is conclusive. Upon an examination of the whole case we find no error, and the proceedings of the Quarter Sessions are affirmed.