before the order has expired; that is, before or re Bridge Over Smithfield Creek, 6 Wh. 363; In during the session of Court to which it is returnable. re Appleby Manor Road, I Gr. 443; In re Road

Exceptions to the report of viewers.

C. E. Morgan, Jr. and Francis D. Lewis, for the

exceptants.

J. Lee Patton, Francis L. Wayland and James Alcorn, assistant city solicitors, and John L. Kinsey, city solicitor, for the city of Philadelphia.

in Baldwin and Lower St. Clair, 36 Pa. 9. That they must report to the next term: In re Boyer's Road, 37 Pa. 257. That a report made at a term succeeding the term next after their appointment, or at an adjourned term, is irregular and void: In re Springbrook Road, 64 Pa. 451. That if a view cannot be had in time to report to the next August 3, 1898. BEITLER, J. On April 10, term, a continuance must be had: In re Baldwin 1897, a jury was appointed to assess the damages and Snowden Road, 3 Gr. 62; In re Road in for the opening of Knox street. It was continued Salem Township, 103 Pa. 250; In re Chartiers in June, 1897, from July 10, and again on Octo- Township Road, 48 Pa. 314; In re McConnell's ber 7, for three months from the 10th. The re- Mill Road, 32 Pa. 285; In re Charlotte Street, 23 port was filed January 6, 1898. It assessed dam- Pa. 286. That a report cannot be confirmed nunc ages and benefits. Among those against whom pro tunc: In re Road in Salem Township, ante; benefits were assessed is William Wynne Wis- In re Allegheny Avenue, 3 Pa. Super. Ct. 387. ter, Jr., trustee. He has filed exceptions, the first In 1836 the terms in the Quarter Sessions of

of which, "that the report of the jury is contrary this county were the same as in other counties to law," raises the question whether the jury was of the State. The Act of April 14, 1834, sec. 46, regularly and lawfully continued and its report P. L. 333, provided that "the Courts of Quarter filed in accordance with law. On behalf of the Sessions of the several counties of the Commonexceptant, it is contended that the report should wealth shall be holden four times in every year. have been filed in the Court of Quarter Sessions They shall commence, unless it be otherwise in May, 1897, and that, as there was no continu- specially provided, on the several days appointed ance of the jury during that month, its power to for the commencement of the Courts of Common act was at an end. Pleas of the respective county."

The general road law of June 13, 1836, P. L. The Act of March 13, 1867, provided that "the 551, provides for the laying out of roads under sessions of the Court of Oyer and Terminer, proceedings in the Court of Quarter Sessions, General Jail Delivery and Quarter Sessions of and also for assessing the damages therefor. The the Peace for the city and county of Philadelphia first, fifth and sixth sections relate to the laying shall hereafter commence on the first Monday of out of roads by "six persons, qualified as here- each month, instead of the days now fixed by law inafter is provided, to view the ground proposed for the holding of the same." for such road, and make report of their proceed- It would, therefore, seem plain that in all proings to the respective Court at the next term ceedings under the Act of 1836, unless altered or thereof." The third section expressly provides amended, as to Philadelphia, by some later legisthat "the viewers as aforesaid '(to lay out)' shall lation, the viewers, whether appointed to lay out make report at the next term of the said Court." a road or to assess damages for a road laid out The seventh section provides for six viewers, to and opened by municipal action, must make rebe appointed upon petition of a property-owner port to the next Court of Quarter Sessions; that through whose land a public road shall be open- is, within the next month following that in which ed, "to view the premises and assess the dam- they were appointed. ages, if any, which such petitioner may have sus- An examination of the old records of this tained;" and the eighth section requires that the Court between 1867 and 1870 discloses that most viewers so appointed “shall make report in writ- of the juries reported during the next month after ing to the next Court of Quarter Sessions." their appointment. Their proceedings were eviKnox street was not laid out, nor its opening dently less protracted then than now. But in decreed, upon the report of viewers. It was several cases a continuance was necessary, and placed upon the city plan and opened by action these continuances were granted from month to of the city authorities. The damages, however, month. Thus in "street or road in Twenty-first in all such cases have to be assessed by viewers ward, near Wissahickon creek," we find that under the seventh section of the Act of 1836. The Judge LUDLOW, on October 19, 1867, extended sections of that Act just quoted, requiring report the time of the jury for filing report "to the Noto be made to the next term of the Court, have vember term of the Court of Quarter Sessions," been uniformly held to be mandatory. Thus it and "In re Jones Street, from 20th to 21st," the has been held that they cannot make report dur- continuances were from month to month. ing the term at which they were appointed: In Has there, however, been provided for this

county any special provision saving proceedings. In re Opening of Worth Street, 5 Dist. Rep. from the effect of the Act of 1867 or altering the 231, Judge THAYER, without considering at all Act of 1836? the question whether this Act is constitutional or

By the Act of May 6, 1870, P. L. 1304, it was pro-not, held that the Courts have power to extend vided: Sec. 2. The powers of the jury appointed the time of the jury upon application made and by said Court of Quarter Sessions shall continue cause shown. Upon the question whether the until they shall have reported on that subject- Act is constitutional or not, we are forced to the matter for which they were appointed, although conclusion that the decision of the Supreme a term or terms of the Court may intervene. Court in Ruan Street, 132 Pa. 257, leaves no This Act was expressly repealed by the Act of room for doubt. It is clearly unconstitutional. June 6, 1873, P. L. (1874) 407, which provides The Supreme Court there, in a decision concurthat jurors in the city of Philadelphia should red in by five of the seven Judges, held that the make their report within three months from the Act of 1887, P. L. 278, providing “a peculiar and time of their appointment, unless the time was somewhat cumbrous code of procedure in road extended by the Court. Following this Act, our cases for the city of Philadelphia, unlike that in Court of Quarter Sessions adopted rule 17, sec. use in the rest of the State," was unconstitutional. II, which provides that all reports of viewers It was contended in that case that the Act of 1887 shall be filed within three months after their ap-related to the "practice and procedure," before a pointment, unless the time shall be extended. Court and not to the Court's "organization, jurThe Act of 1873 was repealed by the Act of isdiction and powers," and that therefore it did June 26, 1895, P. L. 320. This latter Act was not offend against Article V. of the Constitution. undoubtedly intended to be a companion Act to The Supreme Court, however, stamped the Act the Act approved May 21, 1895, P. L. 87, which of 1887 as special and local legislation. The opingave the jury six months for their labors. The ion of Mr. Justice WILLIAMS points out the obAct of 1873 need not have been repealed to give ject of classification of cities, the basis on which the Act of May 21, 1895, full effect, but as it was classification rests, and what kind of legislation no longer operative after the latter Act became is and is not authorized by it. It is laid down a law, it seemed but logical to repeal it. flatly that Wheeler v. Philadelphia, 77 Pa. 338, The exceptant, however, contends that the Act in holding classification of cities constitutional, of May 21, 1895, is unconstitutional. It is en- did not authorize special or local legislation on titled, "An Act relating to jurors or viewers ap- subjects not relating to municipal affairs, and pointed by the Courts of any county co-extensive that the constitutional provisions therein referred in boundary with a city of the first class to assess to forbid legislation on special or local subjects damages or benefits for public or municipal im- not relating to the exercise of corporate powers or provements, requiring the jurors or viewers to to corporate officers and their powers and duties. complete their duties and to file the report within If the question of the constitutionality of an six months from the date of their appointment." Act similar in its provisions to the Act of May It enacts: Section 1. That all jurors or viewers 21, 1895, had been before the Supreme Court at appointed by any of the Courts of any county co- the time Ruan Street was argued, the Court extensive in boundary with a city of the first class might have made some exception in favor of such to ascertain and assess damages or benefits caus- legislation. A very strong argument in favor of ed by the opening of any street or road, or the the necessity of classification in the matter of the changing of the grade of the same, or the erection time allowed a jury or viewers to conclude their and construction of any sewer, bridge or other labors and make report in reference to a street municipal improvement, or the taking of private in a city of the first class might have been preproperty for any public or municipal purpose or sented, and perhaps the principle in Wheeler v. improvement, are hereby required to conclude Philadelphia might have been extended to save and complete their duties and file their report in such an Act. It must be remembered that in the Court in which they were appointed within Philadelphia the jury must first be furnished with six months from the date of their appointment. a plan of the street, which must be a double plan, Sec. 2. That hereafter, in all proceedings where showing the property lines and a profile to show the report of the said jury or viewers has been the grade. The jury must not only assess damfiled in any Court of any county co-extensive in ages for the taking of the ground, but for those boundary with a city of the first class after the other injuries inflicted upon the part left by the expiration of six months from the date of the ap-grade at which the street is opened. Many propointment by the Court of the said jury or viewers, ceedings in Philadelphia could not be concluded no compensation or allowance shall be given or if the jury sat every day for a month or even made to said jurors or viewers for their services. three months. In fact, however, the jury is gen

erally appointed as soon as the right to a jury same provisions practically as the rest of the arises, but the official plan is rarely then ready, State had, and had had under the Act of 1836. and is generally not ready for weeks thereafter. The Act of June, 1895, repealed the Act of 1873. No This plan is prepared by an official in the bureau objection can be made to this Act of June, 1895. of surveys in the department of public works, We must bear in mind that there was evidently and its preparation frequently requires the survey no intention on the part of the law-makers to reof many lots, sometimes hundreds in number, vive the Act of 1870 by the repeal of the Act of and a complete survey of the locality to complete 1873, for just prior to the enactment of the June the profile plan. For a road through the "hem- Act in 1895, they had passed an Act in May, lock forests of the Pocono mountain" (to borrow which they undoubtedly regarded as constituChief Justice PAXSON'S language in the dissent- tional, fixing six months as the time within which ing opinion in Ruan Street), no plan at all, ex- the jury must make report. Without considering cept one made by the jury after its view, would whether the Legislature could, if it had so intendbe necessary. Mr. Justice WILLIAMS was, of ed and clearly evinced that intention, have revived course, right in saying that "Courts of justice the Act of 1870 by the repeal of the Act of 1873, weigh legal rights in the scales of reason, not it is at once apparent that there was clearly no in those of commerce, and protect the citizen intent to revive the Act of 1870. If, however, whose scanty possessions are in the country with we are not to be guided by the legislative intent, the same jealous care as the holder of corner lots but to apply hard and fast rules of interpretation in a great city." Yet he would, I am sure, be in determining the question, we are driven to the ready to concede that more time is necessary in conclusion reached by Judge RICE in Com'th ex determining the damages to be awarded for the rel. v. Kelly, 5 Kulp, 533, in which he held that taking of a part of a lot every square foot of where a local or special law is repealed by anwhich is worth, as at Broad and Chestnut streets, other local or special law, and the latter is then in Philadelphia, more than an acre of good farm repealed, the former is not revived if there is a land in any of the populous and thrifty counties general law governing the subject. surrounding Philadelphia. While, in the one case, It is true that in Zimmerman v. Turnpike Co., the jury could not take a month, if it exercised 81* Pa. 96, the Supreme Court held that the reany diligence whatever, in the performance of its peal in 1868 of an Act passed in 1867, repealing duties, in the other case it could not conclude its the fifth section of an Act passed in 1810, relatlabors in a month with the utmost diligence. As, ing to a turnpike company, revived the Act of however, the Act of 1895 relates only to the 1810. In that case, however, the legislative inCourts of Philadelphia county and to the reports tent to bring into life the Act of 1810 was apof jurors and viewers in what may be termed parent, and there was no general law regulating generally "road cases," it is both local and spe- or governing the subject to apply if the Act of cial, and we are constrained to hold it unconsti- 1810 was not revived. tutional under the decision in Ruan Street.

The Act of May, 1895, being unconstitutional, We reach this conclusion with much regret. proceedings in Philadelphia are to be regulated We would rather in any case uphold the legisla- by the Act of 1836 as modified by the Act of tion, sanctioned by the legislative and the exe- 1867, and viewers must make their report to the cutive departments of the government, than to next Court; that is, within the next month of declare such legislation unconstitutional. We their appointment, unless continued by the Court. regret, too, that our fundamental law should deal The whole subject is epitomized in the decision

so minutely with details as to prohibit such nec- In re Road in Salem Township, 103 Pa. 252, in essary and useful legislation as that in the Act which the opinion was written by the present now under consideration. We see no alterna- Chief Justice. He said: "The jurisdiction of the tive, however, but to declare the Act in contravention of the Constitution.

Court of Quarter Sessions in road cases is purely statutory, and hence the mode of proceeding This brings us to another question, and that is, prescribed by the law should be strictly pursued, did repeal of the Act of 1873, which had express- especially in all matters that are intended to afly repealed the Act of 1870, revive the latter Act? fect individuals or the general public without We must remember that the Act of 1836 is a notice. The third section of the general road general Act. The Act of 1867 was a local Act, law of 1836 requires the viewers to make their intended for another purpose. It was constitu- report at the next term or session of the Court tional, and it altered the time within which juries after their appointment. The object of this recould make report. The Act of 1870 repealed all quirement is neither doubtful nor unimportant. limitations. It was local, but constitutional. The As has been repeatedly intimated, the Act means Act of 1873 repealed this Act and gave us the just what it says. It was intended to fix defin

itely a time when all parties interested may have March 31. These continuances were all granted an opportunity of examining the report, with on the application of counsel for the petitioner, the view of excepting thereto or taking such the city solicitor assenting.

other action as may be deemed necessary. If.! The report assessed damages and benefits. On for any sufficient reason, the report cannot be behalf of William Wynne Wister, Jr., trustee, made to the next term, the proper course is to against whose property benefits were assessed, continue the order to view and make returnable exceptions have been filed, the first of which to the next succeeding term; but this must be "because the report is contrary to the law," raises done before the order has expired; that is, be- the question, which has been argued in this case fore or during the session of Court to which it is and in two others, whether the jury has any returnable. If that term is permitted to pass power under the first continuance to go on with without the presentation of the report or an order the proceeding. extending the time for making the same, the order to view becomes, ipso facto, inoperative, and with it the authority of the viewers ceases. The Court itself has no power subsequently, by a nunc pro tunc order or otherwise, to resuscitate the defunct order to view. If anything further is attempted, it must be done by proceeding de novo." The first exception of William Wynne Wister, Jr., trustee, is therefore sustained and the report set aside.

Quarter Sessions.

We have partially covered the points involved in this exception in the opinion In re Knox Street [ante page 9]. There is one other point in this case, that there was a nunc pro tunc continuance. Had this continuance been in time, it would not have saved the proceedings; but we are of opinion that, under the decisions In re Road in Salem Township, 103 Pa. 250; In re East Grant Street, 121 Pa. 596, and In re Allegheny Avenue, 3 Pa. Super. Ct. 387, the continuance of June 14 for three months from May 25 was of no effect February, 1897. and the proceeding was then dead.

In re Hansberry Street. Road law-Continuance of jury of view-Assessment of benefits-Land in immediate vicinity.

It has been urged that during all the meetings

since May, 1897, the exceptants were present, taking part in the proceedings and making no objections at any time to the want of power in On February 26, 1897, viewers were appointed to the jury to longer continue their labors, and that, assess damages for the opening of a street; on June by such acquiescence, the exceptants are estop14 it was continued for three months from May 25; | on August 10 it was continued for three months, and ped or precluded from making the objection now again on November 3, and on January 26, 1898, the made, and Higgins v. Sharon Borough, 5 Pa. report being filed on March 31, 1898:

Held, that the nunc pro tunc continuance for three months from May 25 was of no effect, as the proceeding was dead at the time it was made.

Super. Ct. 92, is quoted. In that case the report of a jury was filed January 26, 1895. No exceptions were filed, and the report was subsequently confirmed and judgment entered on the jury's Under the Act of April 1, 1864, P. L. 206, benefits may be assessed upon property in the immediate awards. Higgins appealed. The appeal went to vicinity of the street intended to be opened. This issue, and was twice called for trial, but not tried. Act was not repealed by the Act of May 16, 1891, Just before it was reached the third time, the ap

P. L. 71.

John L.

pellant objected to the regularity of the proceedings, because the report had been filed not at the next term, but one week late. The Court below

Exceptions to the report of viewers. William H. Shoemaker, for the petitioner. C. E. Morgan, Jr. and Francis D. Lewis, for refused to quash the petition, saying: "If this Wiliam Wynne Wister, Jr., trustee. was an irregularity, the defendant claiming that Frederick J. Geiger, for William T. B. Roberts. the report should have been filed between JanJ. Lee Patton, Francis L. Wayland and James uary 7 and 19, we think the defendant has waived Alcorn, assistant city solicitors, and it by his acquiescence in the regularity of the Kinsey, city solicitor, for the city of Philadelphia. report since May, 1895." The Superior Court, as to this, said: "The defendant's motion to quash August 1, 1898. BEITLER, J. On February 26, the proceedings was properly overruled for the 1897, on petition of William King, this Court ap- reasons given by the learned trial Judge." pointed six viewers to assess the damages for the That case and this are essentially different. opening of Hansberry street. The jury, not hav- There, the appeal began the proceedings de novo, ing reported, was, on June 14, 1897, continued for and any irregularity in the record appealed from three months from May 25. This was a nunc was certainly waived. Here, at the earliest oppro tunc continuance. On August 10 it was con-portunity, the exceptant interposes his objection, tinued for three months, and again on November and it is an exception which goes to the root of 3, and on January 26. The report was filed on the case. His mere appearance before the jury

cannot be regarded as acquiescence in the regu- enough to give his tract access to main thoroughlarity of the proceeding. If he presented testi- fares. He appears before the jury and frankly mony; if he had moved the Court to grant a states that, after the opening of the street, the continuance; if he had requested the jury to fix ground remaining to him will be more valuable meetings for his convenience-all these matters with the street frontage than the entire tract is might be urged by the city, upon a proper peti- with no opened street along its front, and states tion filed or rule granted, as reasons why, under that he cannot claim damages. Or, he may at the Act of May 16, 1891, P. L. 90, the costs of once take down any fences he may have across the proceeding, justly chargeable to the excep- the street, re-erect them on the lines of the street tant's acts, should be imposed upon him; but we and clearly evidence his intention to dedicate; cannot say that, if he took any or all such steps, or, he may go a step further and sign and file he is precluded from urging, upon exceptions, with the survey bureau in the department of pubthat the report of the jury is in law no report at lic works of the city a formal deed of dedication. Any of these acts, according to the exceptant's Exceptions were also filed by William T. B. contention, prevents the jury from putting on his Roberts, raising the question whether Mr. Rob- land as an assessment of benefits any of the damerts, who had dedicated so much of his land as ages awarded, though he may with entire frankthe street takes, could be assessed benefits for the ness and candor admit that his land is doubled advantage accruing to the part left, by the open- in value. If we go a step further, it would seem ing of the street past his ground and past the that if he claims damages and the jury awards ground of his neighbors to whom the viewers him none, but assesses him with benefits, that gave damages. the assessment of benefits is illegal because no

all.

The jury was appointed in February, 1897. It damages were awarded. This is certainly illogimet in April, and the plan not being ready, not cal, because benefits represent the excess of adagain until October. It met in November, De- vantage over disadvantage to a property by the cember and January, and filed its report March opening of a street. If the exceptant's view is 31, 1898. correct, we may find a property owner, none of The ordinance to open the street was approved whose land is taken by the street, assessed beneDecember 9, 1896. The physical work of open- fits, while the man from whom some ground is ing began in October, 1897, and was finished taken, but who dedicates the same or makes no March 9, 1898.

claim therefor, or, having made a claim, is awarded nothing, is exempted from an assessment of benefits, though his land may be in fact greatly enhanced in value.

Mr. Roberts secured title July 14, 1897, to a large tract of land, up to which and over part of which the street was opened. The opening extended beyond his tract and gave access from it Mr. Roberts does not appeal. The report of to other streets. He executed two deeds of ded- the jury that his property is benefited is unchalication to the city; one in January, 1897, the other lenged. In fact, the jury reports "that, in estiin November, 1897. These were both after the mating the said benefits, the jury have considerpassage of the ordinance, and the latter after the ed the value of all land owned by him as describjury had been in session many months and had ed in said deeds before and after the opening of almost concluded its labors. These two deeds Hansberry street, including in said valuation bewere accepted by the board of surveyors on Jan. fore the opening that portion of his said land ly17, 1898, after the jury had concluded its meetings. ing in the bed of said Hansberry street." The contention of the exceptant is, that, having dedicated so much of his ground as was in the bed of the street, he cannot be assessed benefits as a contribution to the expense of opening the rest of the street.

The exceptant's argument rests upon the theory that as the deed recites that the ground is dedicated in consideration of "the advantages to" the grantors "accruing, as well as for divers considerations affecting the public welfare, which Before considering the law, let us see what they seek to advance," and this deed was acconclusions this may lead to if correct. A man cepted by the board of surveyors, that therefore has a tract of land utterly inaccessible. There the city of Philadelphia, whose treasury must is a plotted street which, if opened, will take some pay damages, cannot have the advantage of beneof his ground, but will go through other ground fits against this land, assessed by a jury of a and perhaps buildings which shut his tract off county Court.

from access to the city's system of highways. No authority in the board of surveyors to acThe opening of this street will in effect vastly cept the deed has been shown; no authority in benefit his tract. The city decides to open the them to do anything binding the city in the street not merely across his ground, but far premises has been shown; and we cannot see how