Kennedy Township Road
Kennedy Township Road
Opinion of the Court
Opinion by
One of the exceptions considered and overruled in In re Road in Sterrett Township, 114 Pa. 627, was that the report showed that the county surveyor did not act, but that his deputy acted in his place and stead, and that by reason thereof the view and report were defective. The assignment of error to the overruling of this exception was dismissed by the Supreme Court in the following language: “The 17th specification is without merit. The act of February 24th, 1873, relating to the office of surveyor and civil engineer for the county of Allegheny, provides that the county surveyor ' shall, either in person or by deputy, act as artist in all road and bridge views.’ The report shows that the county surveyor’s deputy did represent him as artist in this case. There appears to be no error in the record that vitiates the proceedings.” It is true, the constitutionality of the act was not discussed in the opinion, and that the report of the case does not affirmatively show that it was discussed by counsel. But the assignment of error was broad enough to raise the question, and we are not convinced that, after such a lapse of time, during which the case, though cited many times, has remained unquestioned, we would be justified in assuming that the question of the constitutionality of the act was overlooked by court and counsel. Granting, however, that it was, and, therefore, that the case is not a binding precedent upon that question, still the sixth assignment of error in the present case should be overruled. It was declared very explicitly, in the recent case of Kucker v. Sunlight Oil & Gasoline Co., 230 Pa. 528, that, where an act is plainly in conflict with the organic law of the state, “old age cannot give it life and when the issue of its constitutionality is properly raised it must be declared void.” But it was said, in the same connection, that a court should hesitate to declare a statute unconstitutional, and where it has been on the statute books for many years the hesitation should be all the greater. It is thus seen that the principle enunciated in the case is not
The third, fourth, fifth and seventh assignments are overruled for the reasons given in the opinion of Judge Haymaker.
The remaining assignments to be considered are the first and second. These raise the objection that the petition for the appointment of viewers did not comply with sec. 1 of the Act of April 23, 1909, P. L. 142. The section reads as follows: “That hereafter all petitions for the laying out or for the vacation of a public road, in any county of the commonwealth, shall fix definitely the point of beginning and the point of ending, mentioned in said petition, by giving the exact distance from an intersecting public road, street, or railroad, already opened.” The petition for a road view under the act of 1836 lies at the foundation of all subsequent proceedings, and can state no more than the beginning and ending. “They are the initials which describe the proceeding, and limit the authority delegated by the court in its order to the viewers:” Road in Lower Merion, 58 Pa. 66. Reasonable certainty, therefore, in the description of the termini in the petition was always required. But prior to the act of 1909 mathematical precision was held not to be indispensable in all cases, and, as pointed out in Judge Haymaker’s opinion, there were cases in which it was held that to describe a terminus as being “at or near” or “below or near” some natural or other monument or object, as, for instance, a spring, a tree, a barn, a house, the dividing line between lands, the intersection of l’oads, or upon land of an owner named, was sufficient: Kennedy Twp. Road, 40 Pa. Su
The order is reversed and the proceedings are set aside.
Reference
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- Constitutional law — Title of act — Road law — Act of February 24,1873, P. L. 155. 1. The Act of February 24, 1873, P. L. 155, entitled “An Act relating to the office of surveyor and civil engineer for the County of Allegheny” is not insufficient in title and repugnant to the provisions of the constitutional amendment of 1864. 2. While the courts are bound to declare an act unconstitutional, when the question is properly raised, and the invalidity of the act is clear, yet where the question is doubtful, the courts will consider, in favor of the constitutionality of the act, the fact that it has been on the statute book for a long period of time and continually practiced under, and that, although it had been in the courts for construction, its constitutionality had never been attacked. Road law — Laying out public road — Termini—Act of April 23,1909, 1909, P. L. 142. 3. Under the Act of April 23, 1909, P. L. 142, which provides that a petition for laying out a public road “shall fix definitely the point of beginning and the point of ending in said petition by giving the exact distance from an intersecting public road, street, or railroad already opened,” the intersecting road, street or railroad is the one which intersects the public road upon which the terminal point of the road proposed to be laid out is situated. Any other construction of the act will render it meaningless. 4. All statutes are to be so construed as to sustain, rather than to ignore them; to give them operation, if the language will permit, instead of treating them as meaningless. 5. The Act of April 23, 1909, P. L. 142, is mandatory, and the omission to comply with it, where it can be complied with, is fatal. 6. A petition for a public road is fatally defective which states that the road is “to lead from a point on the Pine Hollow Road near a bridge at or near the property of C. in said township to a point on the Pittsburg and Middletown Road at or near a poplar tree on the H. farm in said township.”