Wilkes-Barre v. Stewart , 16 Pa. Super. 347 ( 1901 )

Opinion by

Beaver, J.,

Judgment was entered against the defendant by the mayor of the city of Wilkes-Barre, after a hearing, for the penalty imposed by section 7 of the city ordinances, entitled “ Good order and decency,” for the sum of $1,000 and costs. Defendant appealed from the judgment entered against her under the provisions of section 14 of the act (to incorporate the city of Wilkes-Barre), of May 4,1871, P. L. 539. Upon a rule to show cause why the appeal should not be stricken off, the court below, upon argument, made the rule absolute, holding that the act of April 17, 1876, passed to enforce the provisions of article 5, section 14 of the constitution, repealed or rendered inoperative, the law under which the appeal was taken by defendant. The constitutional provision and the legislative enactment to enforce it, above referred to, relate to all cases of summary conviction and suits for a penalty. The act under which the appeal was taken refers only to the city of Wilkes-Barre. Is it repealed by the later act?

“ The settled rule is that a statute can be repealed only by express provision of a subsequent law or by necessary implication. To repeal by implication, there must be such a positive repugnancy between the new law and the old that they cannot stand together or be consistently reconciled: ” Homer v. Com., 106 Pa. 221; McHenry’s Petition, 6 Pa. Superior Ct. 464. Inasmuch as the act of 1876, supra, refers to all cases of summary conviction and suits for penalty, it must of necessity include those arising under the special act of 1871, supra, providing a charter for the city of Wilkes-Barre. The two cannot stand together or be consistently reconciled. It follows, therefore, that the appeal in this case must be regulated by the provisions of the act of 1876, supra; but it provides that, “either party may also appeal from the judgment of a magistrate or a court not of record in a suit for a penalty, to the court of common pleas of the county in which said judgment shall be rendered, upon allowance of said court, or any judge thereof, upon cause shown.” This appeal was taken without such an allowance. It was, therefore; irregular and without warrant.

The practice under this act was settled in McGuire et ux. v. Borough of Shenandoah, 109 Pa. 618, and Com. v. McCann, 174 Pa. 19.

As to an allowance of an appeal, see Thompson v. Preston, 5 Pa. Superior Ct. 154.

.Lapse of time on the part of the plaintiff in moving to strike off the appeal can give no validity to that which never had any legal authority or existence.

The action of the court below in making absolute the rule to show cause why the appeal should not be stricken off was clearly correct.

Decree affirmed,