County of Lancaster v. Frey

Opinion, Me. Justice Olaek: The question in this ease turns upon the true and proper construction of the act of April 13, 1854, P. L. 352, entitled “ An act relative to the opening of streets in the city of Lancaster.” Prior to the year 1850 the city of Lancaster would seem to have been subject to the provisions of the general road law of the state, and damages arising from the opening of streets therein, were payable out of the county treasury. By the eighth section of the act of May 8,1850, P. L. 751, however, it was provided: “ That* no damages whatsoever, which shall hereafter occur to any person by reason of laying out any road, street, alley, or way in the city or any of the boroughs of the county of Lancaster, shall be paid out of the county treasury, but the same shall be paid by such city or borough, or by the persons whose property is benefited by the opening of such streets, roads, alleys, or ways.” This act remained in force until April 13, 1854, the date of the passage of the act first above mentioned, when the eighth section of the act of May 8, 1850, was expressly repealed, and from thenceforth damages for the opening of streets have been assessed and paid under the provisions of the act of 1854. By the act of April 18, 1873, P. L. 811, provision is made for the manner of laying out, opening and grading of the streets in the city of Lancaster, but, as it is provided therein that the damages accruing to the property owners “ shall be paid by the said city of Lancaster and the county of Lancaster in the manner and in the proportions directed by existing laws,” the rule regulating the extent of the liability of each is not thereby changed. It is conceded that, by force of the second section of the act of 1854, all sums awarded for damages for the opening of streets in the city of Lancaster are to be. paid out of the county [598] treasury, with the exception of such damages as may accrue from the removal of or injury to “ any house, out-house, stable, or other building,” which are to be separately assessed and paid out of the city treasury. The second section, as thus construed, is a complete adjustment of the rule of responsibility attaching to the city and the county, for the opening of streets within the city. The third section is not a part of the second, but is built upon it; the proceedings are by the express terms of the act, “ under the general road laws of the commonwealth; ” and it is provided that the damages, except those for the removal of or injury to any house, etc., shall be paid, after being confirmed, out of the county treasury. In the third section, it is assumed that under the second, the county will expend county funds in payment of damages as therein provided, and the policy of the third section is that the city shall not thus withdraw from the county fund more than she contributes to it; that is to say, the city is responsible to the county that the amount thus expended in its behalf shall not exceed the amount contributed by the city to the county funds, for opening roads, etc. It is therefore provided: “ That the commissioners of Lancaster county shall open an account with the city of Lancaster, showing the amount contributed by said city, within the past two years, towards opening roads and erecting and repairing bridges in said county, and the amount drawn from the county treasury, within the same period, for opening streets or alleys in said city; to which amount shall be charged or credited, from time to time hereafter, the sums contributed or received by said city for said purposes; and any damages that may be incurred by the opening and extending of streets and alleys, while the balance on said amount is against the city, shall be payable out of the treasury of said county, and be reimbursable out of the county treasury, only when the balance shall be in favor of said city, and to the extent of such balance.” It is perfectly manifest that the word “ county,” the one hundred and eighteenth word in the third section, is a mere clerical error in the transcribing of the act. That the damages should be paid out of the treasury of the county and be reimbursable out of the county treasury, etc., is a manifest misuse of words. No such thing could have been in the mind of the [599] legislature, for the proposition involves an absurdity. The obvious meaning and purpose of the act is plain from the context. It needs no argument to show that the word “ county ” was mistakenly written for “ city; ” and it is a mistake apparent on the face of the act, which may be rectified by the context. In making this correction we are not to be understood as correcting the act of the legislature. We are enabled to carry out the intention of the legislature, from the plain and obvious meaning of the context, in which the real purpose or intention of the legislature is manifest. It falls within the province of the courts to correct a merely clerical error, even in an act of assembly, when as it is written it involves a manifest absurdity, and the error is plain and obvious. The cases in which this power has been exercised are collected in Endlich on Statutes, § 319; and it is unnecessary to refer to them in detail. The power is undoubted, but it can only be exercised when the error is so manifest, upon an inspection of the act, as to preclude all manner of doubt, and when the correction will relieve the sense of the statute from an actual absurdity, and carry out the clear purpose of the legislature. There can be no doubt upon an inspection of this statute that the word “ county,” already referred to, should read “ city.” The section is senseless and absurd as it is written, whilst the purpose of the legislature is perfectly obvious and certain, that the ultimate obligation was intended, in the event stated, to rest on the city. It is certainly true that the enrolment of an act of assembly in the office of the secretary of the commonwealth, after its passage, and after it has received the approval of the governor, is the highest evidence of its authenticity as a law, and to this rule we firmly adhere; but it is not unworthy of mention that in the original bill, as it passed the Senate and House of Representatives, it has been shown that the one hundred and eighteenth word of the third section was in fact “ city,” instead of “ county,” and the statute, after its passage, was so published in the newspapers of Lancaster county. We mention this fact, not because it has any legal significance whatever, but because it is part of the admitted history of the case. But this obligation of the city was to the county, upon which, [600] by the second section, the primary obligation to pay was imposed. By that section it is expressly provided that after the damages have been assessed, the said amount shall be paid, after being confirmed by the court, out of the county treasury; this is followed by the provision that if any house or building shall be removed, a separate estimate or assessment shall be made, and that amount, after confirmation, shall be paid out of the city treasury. If the county were to be primarily liable to the property holder when the balance of the account was against the county, and the city when the balance was against the city, the property holder, having no control over or even knowledge of the condition of tfye account, or of the existing liabilities of the county or city respectively, would or might be subjected to the greatest uncertainty as to the party against which he might proceed; for, whilst he was in an appropriate proceeding at law endeavoring to adjust his claim against one, the balance on his account might be found, upon tbe result of proceedings already pending in other cases, to have been against the other. Not only so, but the property holder would be held in each case to establish the correctness of an account, over which he had no control and as to which he could have no means of proof. Certainly, no such thing was in the mind of the legislature. The proceedings were under the general road laws of the commonwealth, and the damages, with the exception stated in the proviso, were, upon confirmation, to be paid out of the county treasury. Hence, it was provided that the county commissioners should open an account with the city of Lancaster, showing the amount contributed by the city to the county treasurer towards opening roads, etc., on the one side, and the amount withdrawn from the county treasury for opening streets, etc., in the city, on the other side; and, whilst the balance on that account was against the city, the damages incurred in the opening of streets in the city should be payable out of the treasury of the city—payable to the county, of course, who is primarily liable to the property holder. Thus the true condition of the account is made a matter between the parties interested in it. We are of opinion that the question of the liability of the city, in each case, can only be raised in a proceeding between the county and the city; that the property holder must [601] resort to the county treasury, and the county must, in a proper case, resort to the city; and further, that the city, upon payment of any such claim, is reimbursable out of the county treasury, when the balance is in favor of the city to the extent of such balance. Upon the grounds stated, The proceedings of the Quarter Sessions are affirmed.