Road in Roaring Brook Township

No. 137.

Per Curiam :

The report of viewers was confirmed absolutely January 24, 1887. The certiorari, having been taken out more than two years thereafter, must be quashed: Act of April 1,1874, P. L. 50; Salem Tp. Road, 103 Pa. 250.

Writ quashed.

no. 308.

Opinion, Mr. Chief Justice Paxson:

This case is entitled an appeal, and has been argued as such. It is not, however, for no appeal lies in such a case. It is a certiorari, and brings up nothing but the record. We must examine it by what appears therein.

The appellants are the supervisors off Roaring Brook township, and were ordered by the court below to open a road in said township. The report of the viewers upon said road was finally confirmed January 24, 1887. The order to open was issued June 24, 1889, and served upon the supervisors April 24, 1890. Between these dates there appears to have been an unsuccessful attempt to have the road vacated; and the record contains some evidence, as is not infrequent in road cases, of a local wrangle over the matter. The supervisors neglected or refused to open the road, whereupon the court below awarded an attachment against them as for contempt. It is this order of which they now complain.

In their answer to the order or rule for the attachment, the supervisors set forth their reasons for not opening the road, the principal of which are the following:

(a) That the road is not necessary; or, in their precise language, “ on examining the road ordered to be opened, we say, upon our oaths, that we do not and did not think it necessary or convenient for the traveling public.”

(5) That to open the said road would involve an expense of at least two thousand dollars, which would increase the debt of the township beyond the constitutional limit.

The sixth section of the act of June 18,1836, P. L. 556, provides that “public roads or highways laid out, approved, and. entered on record as aforesaid, shall, as soon as may be practicable, be effectually opened,” etc. Under this act it is the duty of the supervisors to open a public road as soon as practicable after it has been laid out and confirmed. N ot opening a highway, or refusing and neglecting to keep it in repair, is an injury to the public, and is indictable as a public or common nuisance: Graffins v. Commonwealth, 3 P. & W. 502. The supervisors are enjoined by statute to open and repair public roads ; and it is essential to the convenience of the public that the remedy to enforce compliance on the part of these officers should be emphatic, and at the instance of the public authorities of the state: Edge v. Commonwealth, 7 Pa. 275.

With this brief reference to the law, we will consider the reasons given by the supervisors for their neglect. The first does not require discussion. The law does not make them the judges of the necessity for the road, nor does it clothe them with power to reverse the finding of the jury and the order of the court below.

Nor do we attach much weight to the second reason. The order of court which they have refused to obey does not require them to increase the debt of the township beyond the constitutional limit. It appears that a portion of the road has been already opened, and that only a small part thereof remains to be opened. It was stated at bar, and not denied, that a responsible party had filed in the court below an offer in writing to open the balance of the road in a satisfactory manner, for the sum of two hundred and fifty dollars. Be that as it may, the supervisors admit funds in their hands, without stating how much, but allege that they are needed for other purposes. In other words, they propose to apply such moneys in their own way, and in disregard to the order of the court. They are clothed with the power of taxation, and there is nothing to show that they have exhausted it, or have even the disposition to lay such taxes in the future as may be necessary to enable them to obey the order. We may assume that the court below would grant them any reasonable indulgence rendered necessary by the financial condition of the township, were they engaged in a bona’ fide attempt to carry out the order. No such attempt appears, however; no move has been made in that direction, although months have elapsed since the order was served upon them. Their position is not one of obedience, but of defiance, to the court. This cannot be permitted.

It is proper to say that no question was raised as to the power of the Quarter Sessions to issue the attachment. We decide only what is before us.

Order affirmed.