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21 Pa. 55

Ripka's Appeal

Supreme Court of Pennsylvania

Decided July 1, 1853

Supreme Court of Pennsylvania · decided 1853-07-01

<p>1. "Where an official duty is required by law, the whole duty should be performed ; and where no time is prescribed within which it is to be completed, one part of the duty may be performed at one time and the residue of it may be performed afterwards.</p> <p>2. By the Act of 13th July, 1842, the road committee appointed by the burgess and council of the borough of Manayunk were authorized and enjoined to survey the roads, streets, and alleys already laid out and within the borough, and also to lay out such others, or widen those already laid out, as they shall deem necessary, and to make a draft or plan thereof, and return it to the Court. A survey and plan of the streets, &c., in part of the borough was made and confirmed; and subsequently a survey and plan of the streets, &e., in another part of the borough was made, and after exception was confirmed: held that no time being prescribed for the performance of the duty, part of the same could be discharged at one time and the residue at another.</p>

Relies on Goszler v. The Corporation of Georgetown

Decided 1853-07-01

¶1The opinion of the Court was' delivered by

Lewis, J.

¶2— The objection to the survey of the streets of Manayunk, as confirmed by the Quarter Sessions, is, that the committee appointed by the Burgess and Council performed a part of their duty at one time, and the remainder at another. If the case stood upon the footing of an ordinary power of appointment or revocation, the law is, that the power need not be executed to the utmost extent at once, but may be executed at different times over different parts of the estate: 1 Sugd. on Powers 357. But the ease does not rest solely on this ground. By the Act of 13th July, 1842, the committee appointed by the Burgess and Council were not only empowered to make the survey, but were expressly “ enjoined and required” to do so. There is a difference between a naked power, which lies at the election of the party to execute or not, .at his pleasure, and an official duty which he is under a legal obligation to perform. In the latter case the preservation of the public rights demands that the whole duty be performed; and where no time is. prescribed within which it is to be completed, the performance of part at one time, is no reason why the residue should not be performed at another. Where a power to graduate the streets was given to the corporation of Georgetown, it was held to be a continuing power to be exercised from time to time: 6 Wheat. 593. In this case, the survey of the southern portion of the borough at one time, is no reason why the northern portion should not be surveyed at another.

¶3The decree of the Quarter Sessions is affirmed.

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