Bryson's Road , 2 Pen. & W. 207 ( 1830 )

The opinion of the Court was delivered by

Ross, J.

Five exceptions have been taken to the confirmation of the decree of the Court of Quarter Sessions in the matter of the road “leading from a point in the road from Lisburn to Carlisle, at or near a house on the land of the heirs of William Bryson, deceased, now in the occupancy of Samuel Kozier, to a point on the state road at or near the house of Jacob Gehr, in Allen township.” The first exception is, that there was no authority given to the viewers to make a report, the order having neither the seal of the Court, nor the signature of the officer to it. The validity of this exception is resisted on two grounds. 1. That the omission of the signature and seal was mere informality; and which the Court might direct to be amended at any time after the return of the order and report, ás was done in this ease. 2d. That there was án acquiescence after the omission was shown, if not an agreement, on the part of Robert Bryson, one of the -most prominent opposers of the decree of the Court, that the re-reviewers should proceed and examine the ground. I have found no decision, which authorizes the Court to supply the omission of the signature and seal on the return of the order and report. It is decided in Benjamin v. Armstrong, 2 Serg. & Rawle, 392, that the defendant cannot, take advantage of the omission of the Prothonotary’s name to process* if it be under seal, after appearing and pleading to issue — arid that Such defect in process is also made good by the act of the .2d of March, 1805: But by a reference to the 6th section of the act, it will be seen that it has no application to the present case — Besides, in that case, the signature only was omitleu — the seal having been affixed. The seal is what gives authenticity to the process, or order of the Court; and therefore it was very Correctly said in that Case, that the omission was but informality. The second branch of this exception rests om, evidence contained in the depositions taken on notice, and filed on the argument before the Court of Quarter Sessions, and returned with the récord to this Court. After the most careful and attentive consideration of the depositions, it appears to me that such acquiescence or-agteement as would amount to a waiyer of the objection, Has not been satisfactorily proved.

The second exception is, that no order such as was made by the C'ourt of Quarter Sessions on the 12th of August, 1829, issued to the re-reviewers at that time. This objection is contradicted by the record itself. The order made, by the Court was general and in the usual form, and it is so issued to the ré-revifewers.

The third and fourth exceptions'may be considered together. They both depended on matters in pais, which it was the province of the Court of Quarter Sessions to decide. Great latitude must be allowed to viewers in locating a road — particularly as respects the ground, which they may deem the most suitable. These exceptions were not, however, as 1 understood, insisted upon -in the argument.

The fifth exception is that the re-reviewers were not sworn before they performed the duties o.f their appointment. This exception is fatal. By the 3d section of the act of the first of March, 1S15, Purd. 733, it is provided, “ that all viewers of roads, &c., shall, before they enter upon the duties assigned them, take an oath or affirmation, &c. that they will perform the duties of their- appointment with impartiality and fidelity,- &c.; and it shall .-be the duty of the clerk of the Quarter Sessions, from which such’order of view shall be issued, to.direct therein, that the reviewers thereby appointed, shall, before they enter upon their duties, be respectively sworn or affirmed.5’ The language of this act is clear and explicit, and too plain to be misunderstood. The viewers are directed to be sworn or affirmed before they enter upon the duties of their appointment. What are the duties of their appointment? Certainly the most important part of their duty is carefully, to view and examine the ground, over which the road is asked to be laid, as well as the ground adjacent thereto. The public is much interested in laying, out roads. The expense of opening them and keeping them in repair, together with the injury which the proprietors of land over which they pass, frequently suffer, require that the viewers should perform their duties under the sanction of an oath or affirmation. Experience proves, that there is no duty which persons are called upon to perform, that requires more firmness in the exercise of it than the laying out of roads; and so essential did the legislature consider the swearing of the viewers before entering on their appointments, that out of abundant caution they have enjoined the clerk of the Sessions to insert in the order, “ that the viewers shall be sworn or affirmed before they enter on their duties,” lest it might be omitted through any neglect or inattention. The act, indeed, leaves nothing to construction, it cannot be evaded. The oath must be administered before the viewers enter upon their duties — and if not, its injunction is expressly disregarded. It makes no difference, whether their duties are judicial or ministerial — the written law must be complied with.

In this case it is clearly proved by the depositions returned with' the record, that the re-reviewers were not sworn until after they had viewed the routes, and had returned to the house. They therefore' acted in violation of an express provision of the act of assembly, and the proceedings must be quashed.

Proceedings quashed*