Case of Schuylkill Falls' Road , 2 Binn. 250 ( 1810 )

Yeates J.

delivered the court’s opinion.

The counsel of Mr. George Aston who opposed this road, have taken six specific exceptions thereto; each of which shall be considered.

We will follow the example of the counsel, and observe on the first and sixth exceptions together. The act of the 6th of April 1802, 5 St. Laws 178. directs that “ on a petition for “ a public or private road, the justices of the Court of Quarter u Sessions of each county shall have power in open court, to “ order and appoint six discreet and reputable freeholders, of “ the inhabitants near where complaint is made for want of a ■“ road, to view the ground proposed for the said road &c.” It has been objected, that the persons appointed as viewers and re-reviewers of this road, were not freeholders and inhabitants near the road, in fact; and that it is absolutely necessary that it should appear on the face of the proceedings, that they possessed such qualifications. How that fact really is, we have no mode of ascertaining, unless by hearing testimony thereon, which we think would be highly irregular and improper. This we know, that we cannot collect xrom the proceedings, that the persons so appointed were not freeholder'<?, and inhabitants near the road. If such had Been the case, it would clearly be error, because we should be bound to pronounce it a deviation from the law. We admit the rule to be, that inferior jurisdictions must appear to have pursued their authority strictly, and that no intendment shall be made in their favour; but we think it not applicable to the court of Quarter Sessions of the Peace established by the 5th article of our constitution. The law will not intend that they have committed an error, when acting on a subject clearly within their jurisdiction; but will presume in cases before them, which admit of presumption, omnia esse rite acta. Should the principle on which this exception is founded be sustained, we much fear, that almost every road in the state, laid out by the sessions, would be subject to reversal. The old act of 1700, (1 St. Laws 16.) provides that the justices of each county court shall order and appoint six sufficient housekeepers in the neighbourhood, inhabiting near the place where the complaint is made for want of a road, to view &c. Should the confirmation of the present road be vacated on the grounds above urged, consistency of decision must oblige us to reverse the proceedings of the county courts under the act of 1700, when it does not appear on the face thereof, that housekeepers of the neighbourhood inhabiting near the road have been appointed as viewers. The several members of this court do not recollect a single instance in all their experience, wherein these qualifications of the viewers appear on the record. The exception strikes us as being perfectly novel.

2. The second exception is, that the viewers or the re-reviewers have made no reference to the improvements, through which the road passes. But this is not warranted by the fact. The plot or draught of the road annexed to the returns, does refer to the improvements, with much seeming correctness; and it appears to the court that such references should be on the draught, by the plain words of the act. Where different courses and distances have been returned by several sets of men, the sessions are enabled on a view of the draughts and improvements laid down therein, to contrast them and determine on the shortness of the distance, and injury to private property, which seems to be the object the legislature had in view by this provision. The compensation to the individual for the injury done to his private property, comes before other viewers for their decision.

3. We see no weight in the exception, that the sessions had no power to grant a re-review. It is a second review directed for- the information of the minds of the court. Many cases may occur, where from local circumstances it may be difficult for the court to form their judgment on the relative merit of two different returns. The members of the court may suppose that the viewers and reviewers possessed equal disinterestedness, respectability of character, and knowledge of the ground through which the road passes; and their minds may balance between them. What more proper medium of information could be pointed out in such a case, than the view of other discreet and reputable men, to determine to which of the returns the preference should be given, or lay out a road by a new route, which would combine the public and private interest? The sessions ultimately decide upon all the information they can obtain.

As, The fourth exception has been abandoned.

5. It is objected, that it does not appear, that notice of the view or re-review was given to the commissioners of the county, pursuant to the order of the sessions. The object of such order must have been to prevent the county being burthened with unnecessary roads of no public utility. It is a prudential precaution, though not found in the words of the law. Here three different sets of men have agreed on the necessity of a public road as prayed for. Two of the commissioners were present at the view, and one commissioner attended the re-review. If the order of the sessions had not been complied with, we may reasonably suppose, that this objection would have been made to the court below, on a road so much contested; and this not having been done, we may fairly presume, that due notice was given to the commissioners, some of whom attended.

7. The last is a general sweeping exception, referring t© particular objections before made, and observed upon.

Upon the whole, on full consideration, we are of opinion that the proceedings of the sessions should be confirmed.

Proceedings confirmed.