Brown's Petition

Opinion by Mr. Justice Potter, It appears from the record in this case, that Martha M. Brown and Mary J. B. Chew, presented to the Court of Common Pleas of Delaware County, a petition for the appointment of seven viewers under the Act of February 19, 1819, P. L. 79, to assess damages for lands of the petitioners taken by the Philadelphia and Western Railway Company for railroad purposes. The court below refused the petition on the ground that it should have been presented under the provisions of the Act of June 23, 1911, P. L. 1123, for the appointment of three viewers. The petitioners have appealed and assign for error the order of the court dismissing their petition. The first question raised by this appeal, as to the constitutionality of the Act of June 23,1911, P. L. 1123, has been disposed of in an opinion just handed down in Reber’s Appeal, 235 Pa. 622, from the judgment of the Court of Common Pleas of Berks County, in which we sustained the validity of the act. The remaining question here presented for our consideration is whether the Act of 1911 applies to the appointment of viewers to assess damages in railroad condemnation proceedings. To answer this question we turn to Section 5 of the act, which provides: “Whenever hereafter a petition shall be presented to any court, judge or judges of this Commonwealth, praying the appointment of viewers, reviewers or re-reviewers, or of a jury of view, or of any person or body, under any designation, for the purpose of viewing, laying out, opening, grading, altering, widening, vacating, or constructing of roads, streets, highways, sewers or bridges; or of the assessment of damages and benefits occasioned by such laying out, opening, grading, altering, widening, vacating and constructing of roads, streets, highways, sewers or bridges; or occasioned by any appropriation of [4] land, by municipalities and of other corporations having the power of eminent domain, the court shall appoint a board of view of three members — one of whom shall be learned in the law — from among the board of viewers of the county, as such viewers, reviewers, re-reviewers, or jury of view, or road jury, or commissioners of view.” These broadly significant words “other corporations having the power of eminent domain” seem clearly to bring railroad companies within the operation of the act. The obvious purpose of the law is to establish a uniform method of selecting viewers, from a permanent board. The words in question follow a reference to the appropriation of land by municipalities, and group them with other corporations having the power of eminent domain. The word “of” is evidently inserted before “other corporations” by mistake, or is to be used in the sense of “by.” The language resembles that in Section 8, Article 16, of the Constitution, which reads thus: “Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements.” In construing this provision in Chester County v. Brower, 117 Pa. 647, this court said (p. 656) : “The section referred to was intended to embrace, and the language thereof is broad enough to embrace every corporation and individual in the state clothed with the power of taking private property for public use.” To the same effect is Lamoreux v. Luzerne County, 116 Pa. 195. In the act now before us, the words “municipalities and other corporations” are used with the same significance as “municipal and other corporations” in the section of the Constitution above quoted, as the subject matter, the taking of property under the power of eminent domain, is the same in each case. It therefore follows that the statute under consideration, which pro [5] vides a method of carrying out the constitutional provision for assessing damages arising out of the exercise of the right of eminent domain, is to be construed in like manner, as including all corporations having that power. This is the plain import of the words. If it does apply to all such corporations, then manifestly it includes railroads, and it is inconsistent with prior acts providing other methods for the assessment of such damages, and under the 12th section, such acts are repealed. This would include the provisions of the Act of February 19, 1849, P. L. 79, which relate to juries of view, and under which appellants filed their petition. The court below was therefore right in holding that the Act of 1849 is repealed, in so far as it relates to the appointment of juries of view, and that the proceedings in the present case should have been brought under the provisions of the Act of June 23, 1911, P. L. 1123. The assignments of error are overruled, and the order of the court below is affirmed.