In re Road in McCandless Township

Mr. Justice Sterrett

delivered the opinion of the court November 9th, 1885.

The Act of May 3d, 1855, supplementary to the general road law, authorizes- courts of Quarter Sessions “ to inquire of, and to change or vacate the whole or any part of any public or private road which may have been laid out by authority of law, and opened in part ”; and requires them to “ proceed therein by views and reviews in the manner provided for the vacating of other roads by existing laws ”: Purd. 1501, pl. 35. Under that Act, a petition was presented at June sessions, 1884, setting forth that a specified part of a certain public road, theretofore laid out by proceedings commenced at December sessions, 1881, and opened in part, was useless and inconvenient, and praying the court to inquire of and vacate the same, etc. During the first week of next term, the viewers, appointed as prayed for, reported in favor of vacating that portion of the road specified in the petition; and on September 6th, 1884, the report was presented and approved. Exceptions thereto, filed during the term, were dismissed, and, on December 8th, 1884, first week of December Term, the report was confirmed. A previous order of confirmation, improvidently made in September Term, was vacated, and thus the error was corrected.

Afterwards, a petition for reviewers, presented January 11th, 1885, more than a month after the term commenced, was refused on the ground that it came too late. This refusal and the dismissal of exceptions by the court below, respectively, constitute the assignments of .error here.

The position assumed in the first specification is, that the proceedings are erroneous and void, because a view to vacate only is not warranted by the Act, above quoted, under which they were commenced; that the view must be in the alternative, “to change or vacate.” We do not so interpret the Act. The court is authorized either “ to change or vacate,” etc., and there appears to be no good reason why petitioners may not ask for either alone, or for both in the alternative, as circumstances may require. If part of a laid out but unfinished road is wholly unnecessary and useless, vacation and not change of location"is the proper remedy. If so, why require those who are satisfied the former and not the latter is needed, to petition: for both in the alternative ? It would be unreasonable to require them to ask for that which they either do not want or consider improper; and we are satisfied it was not the intention of the legislature to do so.

The subject of complaint in the second specification, is that one of the viewers in this proceeding was a signer to petition for review in No. 4 of December sessions, 1881, the original proceeding, in which the road referred to was laid out.

This exception is based on an allegation of fact, as to the proof of which the record is necessarily silent, because the evidence that may have been adduced in support thereof, in the court below, is no part of the record. The writ of certiorari brings up the record only and not the evidence of collateral facts. Moreover, as was well said In re Road in Chartiers Township, 10 Casey, 413, questions relating to the disqualification of viewers may well be left to the judgment of the court below. But, if the fact were properly before us, it would be unavailing. The former proceeding, commenced in 1881, was necessarily ended before this one was commenced; and while it, doubtless, would have been better to have had viewers neither of whom had any connection with the former proceeding, we are not prepared to say the viewer was disqualified by reason of his having signed the petition referred to in the specification. To so hold would be going further than any adjudicated case'has yet gone.

The third and last specification is the refusal of the court to appoint reviewers on application made more than a month after commencement of the term succeeding that to which the report of viewers was made. It appears the rule of court requires reports of viewers in road cases to be presented for approval during the first week of the term to which the order to view is returnable, and petitions for appointment of reviewers at same or during the first week of next succeeding term. It is contended that under the Act requiring the court to appoint reviewers, provided “ application therefor be made at or before the next term.....after the report upon the first view,” plaintiffs in error had the whole of December Term, extending to first Monday of March,, in which to present their petition for appointment of reviewers, and therefore the rule of court, in so far as it conflicts with the Act, is imperative. This is undoubtedly so if we concede that the court has no power, by standing rule or otherwise, to arrange the business of the term and designate certain days or periods in which different kinds of business shall be transacted. But we are neither disposed nor required to make any such concession. While each term of the court in Allegheny county continues until the next begins, it is enth’ely competent and proper for the court to classify its business and designate certain periods in which special cases will be heard or applications entertained. In addition to the current term to which an order to view may be returned the rule of court fixes the first week of the next succeeding term as the period within which petitions for appointment of reviewers may be presented. Reports of viewers must, under the rule, be presented during the first week of the term to which they are returnable, and parties who may be interested have the residue of the term and the first week of the next succeeding term in which to ask for the appointment of reviewers. In many of the judicial districts the terms are limited to one week, and of course all applications must be presented during that time. In districts where the terms are longer the court has a right to designate the first week of the term as the period within which certain miscellaneous applications shall be made.

Proceedings affirmed.