Pike Township Road

Opinion by

Rice, P. J.,

The proceedings brought up for review on this appeal were begun by a petition of the citizens .of the township of Pike to the commissioners of the township, representing’ that a portion of a certain public road, commonly called the Jones road, had become “ inconvenient,” and praying the commissioners “ to alter and change ” it, by vacating “ the inconvenient portion,” described as extending from “ a maple tree by said highway on the premises of Gilbert Sumner ” to its intersection with the old state road, and' laying a public road between the first mentioned point in the Jones road and another designated point in the old state road. The road commissioners, after viewing the proposed road, reported “ in favor of no road.”

In due time a citizen filed with the town clerk written notice of his dissatisfaction with the decision of the road commissioners and applied for a review, whereupon three road commissioners of other townships were selected as reviewers in the mode provided in sec. 6 of the Act of March 30, 1846, P. L. 199. The substance of the report filed by them was that, after having viewed the proposed road, describing it substantially as in the petition, they “ do report in favor of a road. We also report that after completion of the building and acceptance of tire above road, the road from said maple tree to the said road is vacated.” No plot or draft of the proposed road, or of the portion of the road intended to be vacated, was returned with their report. Nor was the location of the proposed road described in any way, except by the termini.

A few days later two of the reviewing road commissioners filed what is denominated a supplemental report, in which, after reciting the proceedings leading up to their appointment, they set forth that the three reviewing commissioners met upon the day appointed, “ and went over the ground between the points aforesaid mentioned ” — evidently referring to the termini of the proposed new road described in the petition— “ and after making diligent inquiry and examination of the need and benefit of the said new road to the public, did report to the town clerk .... in favor of the new road, and that we Would lay the same, all three of us concurring and signing said report, and adjourning to November-14, 1903, to lay and establish same by metes and bounds.” They then state that on thedast mentioned date, the third reviewing commissioner being absent, they report as follows : “ Having viewed the ground for the proposed road, both of us concurring, do lay out and now return the same for a public road,” etc. Here follows a description of the road by courses and distances and reference to monuments, after which the report proceeds: “ So much of the old road as will be supplied by the proposed new road when built and opened is vacated to the state road, to take effect when the new road is opened for public travel, a plot or draft whereof ” (the new road, not the portion of the road vacated), “ is hereto annexed and is made part of this report.”

The proceedings upon review were brought before the common pleas by certiorari issued under the Act of July 2, 1901, P. L. 607, and were “ confirmed so far as relates to the laying out of the proposed new road, and set aside so far as relates to the vacation of the old road.” The reasons given by the learned judge below for the latter branch of the order were, that there was no distinct finding that the road vacated had become useless, inconvenient or burdensome, and that it was neither adequately described in the report, nor was a draft or plot of .it attached thereto. His conclusion in this regard is in accordance with the ruling in Road in Ross Township, 36 Pa. 87, and the doctrine of other cases. The case comes before us on the appeal of the road commissioners of the township from that part of the order confirming the report of the reviewers as to laying out the proposed new road.

It will be seen from the foregoing that a proceeding, which was based on an allegation that a certain portion of a road had become inconvenient and needed alteration, has terminated in the laying out of a new road without the vacation of the portion of the old road which the reviewers clearly intended to be supplied by the former. Assuming, for a moment, that there was authority for the appointment of the reviewers, it is apparent that their first duty was to determine whether the road asked to be altered and changed had become inconvenient; they were not empowered to lay out a new road irrespective of that fact. And, judging from their report, it is highly improbable, to say the least it is purely conjectural, that, even if they had the power, they would have reported in favor of a new road without coupling with it, as they did, the vacation of the road it was intended to supply. There is no ground for inferring that they would have done so, or for inferring that two roads leading from the maple tree in the Jones road to the old state road are needed. It is true the act of 1901 confers on the common pleas authority to set the proceedings aside, “ either in whole or in part,” but in the exercise of this power regard must be had to the nature of the proceeding and to the authority of the reviewers thereunder. We think it quite clear that it was not the intention to confer jurisdiction on the court to accomplish a result which could not have been accomplished in that proceeding by the report of reviewers, much less where such result is radically different from what the reviewers manifestly intended.

' It is well settled by decisions under the general road law that the location of the courses of the road between the termini mentioned in the petition and order is within the discretion of the reviewers, and the same rule is applicable under the local laws governing the action of road commissioners in Bradford county. This part of their duties is not more plainly ministerial than the determination of the question whether a road shall be laid out between the termini. In the present case the report first filed fails to show the course of the road, or that it had been agreed upon. The supplemental report shows affirmatively that the question of laying out the road by metes and bounds, which must be presumed to be the location of the course of the road, was deferred to a future meeting, at which one of the commissioners was not present. Even taking this report of the two commissioners as conclusive of the fact that there was an adjournment for that purpose, it shows affirmatively noncompliance with the general rule, that where several persons are authorized to do an act of a public nature all must deliberate though a majority may decide.

Sec. 6 of the Act of March 30, 1846, P. L. 199, which regulates the proceedings of reviewing commissioners, says nothing as to their duty to be sworn specially when called upon to perform this function. It simply provides that “ their report shall be entered of record, as in other cases, and shall be final and conclusive in regard to said road, for two years thereafter.” We are inclined to agree with the learned court below in the conclusion that the omission of the legislature to prescribe.the taking of an oath was intentional. They act as public officers in this matter, and, in the absence of anything further than we have referred to to show that it was their duty to be sworn specially, it is to be presumed that the legislature had the fact in view that they were required by law to take a general oath to perform the duties of their office with fidelity.

It is contended that no review is provided for in any case except, first, by the act of 1846 where the local commissioners lay out a new road; second, by the act of 1852 where they change or vacate the whole or any portion of a public road already laid out; and, third, by the act of 1868 where they refuse to lay out a new road. It is beyond controversy that no review is provided for where the petition is to change or vacate the whole or any portion of a public road and the local commissioner’s report against the application, unless the right to such review was granted by the Act of April 13, 1868, P. L. 1004. This provides that any person or persons dissatisfied with the action of the road commissioners of any township within the county of Bradford, “ upon a petition of a lawful number of citizens praying for a new road to be laid out' and opened,” may proceed in the same manner and under the same restrictions as is provided' for in the case of the location of any new road by sec. 6 of the act of 1846. But upon deliberate consideration it seems too narrow a construction of this language to hold that it applies only where the proceeding was begun under the act of 1848 as extended to Bradford county by the act of 1844. The proceeding in question of course primarily contemplates a more convenient way from the point at the maple tree in the Jones road to the old state road, and the vacation of the portion of the former road that has become inconvenient. It is not exclusively a proceeding to lay out a new road, and yet that is involved in it. Moreover, the reasons for permitting a review in a case where the local commissioners have refused to lay out a new road, or have laid out a new road, or have vacated a portion of an old road and supplied its place, apply with equal force to the latter proceeding in which they have refused to vacate and relay, and the words of the act are broad enough to cover such a case. We therefore do not sustain this contention of the appellants’ counsel. The third a.nd fifth assignments of error are sustained. The order is reversed and the proceedings subsequent to the report of the local road commissioners are set aside.