Opinion
March 4, 1929.
March 13, 1929.
County bridges — Replacement — Approval of Court — Discretion of Court — Act of February 14, 1907, P.L.S.
In a proceeding for the replacement of a county bridge under the Act of February 14, 1907, P.L. 3, the court is not restricted to determining merely whether the old bridge is sufficient to meet the public needs, but it has the power to say that it is more economical to repair the bridge than to replace it.
In such proceeding the court may properly consider the expense of the plan proposed by the county commissioners, and where the court sitting in banc has disapproved the petition the order will be affirmed.
Appeal No. 3, February T., 1928, by D.M. Rosser, Ambrose West and M.J. McLaughlin, Commissioners of Luzerne County, from order of Q.S., Luzerne County, June Sessions, 1925, No. 676, in the case of In re: Proposed County Bridge at North Street, Wilkes-Barre City, over the Susquehanna River.
Before TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Petition to the court of quarter sessions for its approval of a new bridge to replace an existing county bridge. Before FULLER, P.J.
The facts are stated in the opinion of the Superior Court and in a former appeal reported in 88 Pa. Super. 209.
The court disapproved the petition and recommended repair of the old bridge. Commissioners appealed.
Error assigned was, among others, the decree of the court.
John H. Dando, and Francis Shunk Brown, and with them Wilfred L. Jones, Ira Jewell Williams and B.W. Davis, for appellants.
No appearance and no printed brief for appellee.
Argued March 4, 1929.
Three years ago, we considered on the merits the question presented by this record, and interpreting the order then appealed from, as constituting disapproval by the quarter sessions of the proposed replacement of the county bridge, we affirmed the order: 88 Pa. Superior Court 209. On appeal to the Supreme Court it was held that the order of the quarter sessions was "neither approval nor disapproval of the petition by the court of quarter sessions. In place of such final action by the court, the record discloses the withholding of its approval `at this time,' of the commissioners' conclusion that the bridge be replaced with a new structure and a suggestion by the court that repair of the present bridge be made. This order is neither an approval nor disapproval of the proposed action of the commissioners as the Act of 1907 requires on the part of the court, consequently not a final order from which an appeal lies. It therefore follows that the appeal to the Superior Court was premature and should have been quashed by that tribunal." North Street Bridge, 287 Pa. 578, 580.
Since then, the record has been considered by the court below sitting in banc, and an order has been made disapproving the petition (four of the five judges constituting the court having concurred in such disapproval, one judge not participating because he had been of counsel in the proceeding before becoming a member of the court).
On the merits we have then the same questions that we considered before, and we all agree that for the reasons stated in our former opinion, the order appealed from should be
Affirmed.