In re division of Plum Township , 1876 Pa. LEXIS 267 ( 1876 )

Mr. Justice Sharswood

delivered the opinion of the court, November 20th 1876.

The 14th section of the Act of April 15th 1834, Pamph. L. 539, provides that upon application by petition to the Court of Quarter Sessions for the purpose of creating a new township or altering the lines of any' township, or of ascertaining the lines or boundaries of any township, the court shall appoint three impartial men, if necessary, to inquire into the propriety of granting the prayer of the petitioner. It has been settled in a series of cases decided by this court upon the construction of this act that the order of the court appointing the commissioners, which is their authority for acting, must contain an explicit direction to them according to the express terms of the law, “ to inquire into the propriety of granting the prayer of the petitioners:” In the matter of the division of Bethel Township, 1 Barr 97 ; In re Harrison Township, 5 Id. 447; In re Conneaut Township, 6 Pittsburgh Legal Journal 121. The order of the court in this case was plainly defective in this respect. It contained no direction to the commissioners to the effect required. The order directed the commissioners “ to mark and lay out said new township and suggest name thereof, also to fix the place or polls for holding elections, if it is necessary and proper such new township should be formed.” It might well be inferred that the court reserved to itself the decision of the question, whether it was necessary and proper that such new township should be formed and that the work of the commissioners was to be contingent upon such determination. There is certainly no explicit direction to them to inquire and report upon the propriety of granting the prayer of the petition. Conceding that they did report upon that question — and even the report varies from the words of the act — we may adopt the language of the court in In re Bethel Township, 1 Barr 101. “ True, they voluntarily certified that they thought the division proper; but in going beyond the terms of the order they acted unofficially. They are to be sworn, but only to do those things rightly which they are commanded to do; and we know not that they swore to the truth of the opinion which they volunteered; officially they certainly did not.”

As this defect is fatal to the proceedings, it is unnecessary to consider the remaining assignments of error.

It is proper- to notice what certainly is a great irregularity in practice appearing on -this record. No certified copy of the order was issued, but as it would seem the original order was delivered to the commissioners, and their report is attached to it, it would be a practice replete with danger to the public records if it should be tolerated. The clerk clearly violated his duty in allowing the order to be taken out of the office, and would have been responsible for damages if it had been lost.

Order reversed and proceedings quashed.