Norwegian Street , 1876 Pa. LEXIS 157 ( 1876 )

Mr. Justice Woodward

delivered the opinion of the court,

It has been the policy of all the recent legislation relating to the boroughs of the Commonwealth, to subject the highways within their limits to the control of the municipal authorities as exclusively as was consistent with the duty of affording protection to the interests of individual citizens. By the 9th section of the Act of the 1st of April 1834, it was made the duty of the burgesses elected and qualified under the provisions of the act, “ to cause to be opened all streets, lanes or alleys laid out by order of the proper court.” By the general borough act of the 3d of April 1851, the corporate authorities were empowered to survey and lay out necessary roads, streets, lanes, alleys, courts and common sewers ; to provide for widening and straightening them ; .to prohibit the erection of any obstructions to such opening, rvidening and straightening, and to their convenient use; to regulate the roads, streets, lanes, alleys, courts, common sewers, public squares, common grounds, foot-walks, pavements, gutters, culverts and drains, and the heights, grades, widths, slopes and forms thereof; to require and direct the grading, curbing, paving and guttering of the side or foot-walks by the owners fronting on them, and to cause the work to be done on the failure of the owners to do it, with power to collect the cost of the work and materials, as claims are by law recoverable under the provisions of the acts relative to mechanics’ liens. A supplement to the statute regulating boroughs was passed on the 22d of April 1856, which provided for the opening of streets and alleys in any borough subject to that statute, by proceedings in the court of quarter sessions of the proper county, upon the petition of the burgess and town council; and this, has been the exclusive form pursued since the enactment of the supplement.

The borough of Pottsville has not been made subject to the general borough laws; but the provisions quoted from the several statutes referred to indicate the general legislative intent to secure uniformity of plan and adequate municipal supervision in the establishment and maintenance of borough highways. Such an intent was manifested in the Act of the 22d of April 1856 (Pamph. L. 509), which authorized the town council of Pottsville, on the petition of citizens interested, to lay out and open all streets which the public convenience required. The Act of the 2d of April 1872, “relating to the opening and vacating of streets in the borough of Pottsville,” is to be read and construed in the light of the intent thus shown. It declares that “ all petitions to the Court of Quarter Sessions of Schuylkill county for the appointment of viewers to lay out or vacate any street, alley or lane in the borough of Pottsville, shall be first submitted to the town council for approval, and no viewers shall hereafter be appointed by the said court, or any court, upon any petition which shall not be so approved.” The petition for the appointment of viewers to report upon the expediency of widening Norwegian street was not approved by the town council, nor presented for their approval. Notice of the meeting of the viewers was served on the president of the council, the town clerk, the supervisor and the borough auditors, and accepted by them. This was deemed a sufficient compliance with the requirements of the statute by the court below, the acceptance of the notice being regarded as a waiver of their privilege to approve the petition before its presentation to the court.

The language of the Act of 1872 was designed to have a larger scope than to confer a mere privilege on the town council, of which they could take advantage, or which they could waive at their option. Like the general borough laws, this act sought to secure uniformity and symmetry of system in opening and improving the highways of the borough. It imposed a duty upon the municipal officers the responsibility for the discharge of which they could not evade. They were bound to exercise their judgment in deciding on the propriety of the contemplated change. And until the result of their deliberations was made known, private citizens could not intervene, and the hands of the - court were stayed. The approval of the council was a condition precedent to the appointment of viewers. Under any of the accepted rules for the construction of statutes, this act was mandatory. It contained distinct negative words, and there is a class of cases which hold that whether a statute is to be regarded as directory or not is made-to depend upon the employment or failure to employ negative-words which import that an act shall be done in a particular manner or time, and not otherwise: Slayton v. Hulings, 7 Ind. 144; King v. Inhabitants of St. Gregory, 2 Ad. & El. 99; Bladen v. Philadelphia, 10 P. F. Smith 466. Perhaps Lord Mansfield’s rule in Rex v. Locksdale, 1 Burr. 447, is a better one, that whether a statute is mandatory or not depends on whether the thing directed to be done is of the essence of the thing required. Here, in order to confer jurisdiction on the court, the preliminary action of the town council was declared to be essential. There is another principle which is decisive in its application. In all cases in the courts where the authority to proceed is conferred by statute, and where the manner of obtaining jurisdiction is prescribed by statute, the mode of proceeding is mandatory, and must be.strictly complied with', or the proceeding will be utterly void: Dwarris on Statutes (Potter’s note) 29, and the cases there cited. The rule prescribed by the Act of 1872 has taken the place of all antecedent provisions regulating the streets of Pottsville, and this rule is the measure of the power and the duty of the council and the court alike.

A distinction was suggested on the argument between a proceeding to “ lay out or vacate” and a proceeding to “widen” a street. Very judiciously, however,-the suggestion was not pressed.

As the failure to present the petition for the appointment of the viewers to the town council was fatal to the whole proceeding, a consideration of the remaining assignments of error would be merely an abstract inquiry.

Damages to the extent of $12,000 were .imposed by the viewers on the county, and this appeal was taken on her behalf. With an interest so significant as this involved, there would be lamentable inefficacy in a legal system under which a doubt of her right to intervene as a party could be seriously entertained.

The order of the Court of Quarter Sessions confirming the report of viewers is reversed, the proceedings are quashed, and the petition is dismissed.