Road to Ewing's Mill , 32 Pa. 282 ( 1858 )

The opinion of the court was delivered by

Church, J. —

These proceedings cannot be sustained. The Act of Assembly explicitly and imperatively requires' the court to direct of what breadth all roads shall be opened. The approval of the report of viewers is quite a distinct and independent act. But both are equally essential. “If the court shall approve of the report allowing a road,” is the language of the law; then, “they (the court) shall direct of what breadth the road so approved shall be opened.” The viewers have no authority over the width whatever. But there is no impropriety, perhaps, in their indicating it, in their report, by way of suggestion. The special act of the court on the subject, however, is necessary in every case. If it be fixed, and endorsed by the clerk, under a general rule of the court, it would be erroneous: 4 Barr 337, and 5 Barr 515.

The Act of the 8th of April 1848 is only retroactive, and its language affords the best interpretation of the general law, by legalizing the past, “ as if the width had been specially fixed by the court at the time of confirmation:” Bright. Purd. 718. The time for doing it is when the report is approved or confirmed. The order of approval is incomplete and wholly inoperative until the width is so ordered and decreed. When this is done, no further or subsequent action of the court is demanded or contemplated by law. The proceedings, when thus finished, are to remain until the next succeeding court, in fieri. Then, unless something by way of exceptions intervene to prevent, the road is to be deemed a public highway, and the whole proceedings in the case having arrived at maturity, become from thenceforward a real and permanent record of the court by the mere operation of law. The whole system is thus rendered plain and simple, as it should be'. There are no legal fictions about it; and hence it is that no orders or decrees made nune fro tunc can have any validity, except perhaps it might be, under some circumstances, to preserve the regularity of the continuances of unexecuted orders to view. The order to open the road is but little more than a legal result which follows a regular approval of the report, the decree or order fixing the width, and the necessary lapse of time, The issuing the order to open the road is only a ministerial, act of the clerk, like the issuing of an execution on a judgment in the Common Pleas. These views, ruling the present case, are sustained by the Act of Assembly and the adjudicated road cases in 3 W. & S. 559; 4 W. & S. 39; 1 Barr 356; 4 Barr 337; 5 Barr 515.

It was obviously the intention of the legislature, by the words “ next court thereafter,” in the 4th section of the general law, that the whole proceeding should remain in fieri, as already indicated, during a whole term after a regular confirmation, which includes the order fixing the width, before it assumes the dignity of a full-fledged record, or before the road can be denominated a public highway. From the end of one term to the beginning of another would not do in Allegheny county. For it might then be that only one day, and that dies non juridicus, would intervene, and thus result in a palpable evasion, instead of conformity with the true intent and purpose of the law. This question, however, is not now necessarily before this court for adjudication. The fourth error assigned is not supported by the record, and it was held by this court, in Middle Creek Road, 9 Barr 69, that it was unnecessary for the giving of notice to appear affirmatively of record, and it is difficult to see how it could otherwise become the subject of review in this court. This disposes of the whole case.

Proceedings in the Quarter Sessions reversed.