Frederick Street , 150 Pa. 202 ( 1892 )

Opinion by

Mb. Justice Mitchell,

The main ground on which the proceedings were set aside by the learned judge below has since been taken away by the decision of this court in Hand v. Fellows, 30 W. N. 72, and McCall v. Coates, 23 Atl. Rep. 1126, 1127. It was there held that the Act of May 16, 1891, P. L. 75, in relation to laying out, opening, etc., streets, etc., in the several municipalities of the commonwealth, is an affirmative Act, conferring additional and cumulative powers, on municipalities of all grades, but repealing no prior statute expressly, nor any portion thereof by implication “ unless the system provided by it is so inconsistent with that previously existing as to make it. impracticable for them to stand together.” In the task of steering through constitutional restrictions, well meant, but destructive of necessary governmental powers, the Legislature had found it difficult to construct statutes conferring powers and modes of procedure suitable to all the diversemeeds, situations and wishes of the multitude of municipal organizations in the state. In the effort some well intended Acts had come to naught, and others had been shorn of sections that left inconvenient gaps here and there in the whole system. It was to fill these gaps, to supply the casus omissi, and to supplement powers doubtful or defective, that the Act of 1891 was passed. It took away no power in any municipality that existed before, nor interfered with any mode of its exercise, except as already said, where there is an irreconcilable repugnancy.

There is no such repugnancy in the present case. Under the powers conferred or regulated by the Act of April 3, 1851, P. L. 320, the borough council of Hanover had authority to pass the ordinance of its own motion, upon its own judgment of the public needs. By the ninth and tenth sections of the Act of 1891, the initiative may be taken by the property owners, through the medium of a petition to the governing body of the municipality whatever it may be, for the Act is not a borough Act merely, but relates to all municipalities. There is nothing repugnant in the existence of two methods of initiating the improvement. As is so clearly shown by our brother Williams, in Hand v. Fellows, a system of charging the expense of improvements to property owners by the foot-front rule, may well co-exist with another system of charge according to benefits to property owners, on a different street. So a borough council may exercise its own judgment as to a street in the built up or populous portion of the borough, while as to a remoter highway it may well wait to be moved by the petition of the property owners. A precise analogy is to be found in the city of Philadelphia, where streets may be opened on their own motion by councils, or by the court of quarter sessions upon petition, and doubtless similar double methods co-exist in other municipalities of the state. Repeals by implication are never favored, and the implication would have to be very-strong indeed, to justify a court in adjudging an implied repeal of the power to lay out, open and widen streets, which has existed in some form from the colonial days, and is an essential part of our modern conception of a municipality of any grade.

There is no difficulty in the proceedings. The ordinance being valid under the Act of 1851, the proceedings to carry it out might be taken under the Act of 1891. As said in Hand, v. Fellows, “ it is enough that the proceedings in any given case conform to the requirements of the Act under which it is desirable to proceed.”

Judgment reversed and ordinance and proceedings reinstated.