State Road from Phœnixville to Trappe

The opinion of the court was delivered, March 19th 1866, by Agnew, J. The Act of 1836 is one reported by the revisors and intended to form a harmonious system of road law. It proposed two principal purposes — the creation of new and the abandonment of old roads no longer fit for service. From the 18th to the 26th section provision is made for vacating, changing and supplying roads of all kinds. The 18th applies to roads which have become useless, inconvenient and burthensome, thereby indicating roads which had been opened and used. The 19th section authorizes roads not opened for use to be vacated on the pétition of a majority of the petitioners. This want of authority to vacate unopened roads produced the Act of May 3d 1855, authorizing the courts to change or vacate roads opened in part, but this law expressly excepted state roads authorized by a special law. The 20th section of the Act of' 1836 applies specially to state roads, and only authorizes the courts to change and supply, but not to vacate wholly. But this power to change and supply with much stronger reason should not apply to unopened state roads, laid out by special commissioners ; atad this intention is manifested by the subsequent sections. The 21st section provides for vacating state roads “ supplied and rendered useless by a substantial and permanent turnpike road made and completed according to law.” The legislative intent is then fully disclosed in the 24th section. It declares that “ Whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped until the road laid, out to supply the place thereof, shall be actually opened and made.” This section is general, and refers to all the several kinds of public roads mentioned in the preceding sections, indicating clearly a road opened and in use. But this legislative intent to confine the power of the court in changing and supplying state roads to those opened and in use, has been since repeatedly recognised. The Act of 21st April 1846, extending the power of the courts to vacate and include roads by prescription or lapse of time, expressly excepts state roads. This was followed by the Act of [164] 1855, already mentioned, extending the power to roads opened only in part, and again excepting state roads. Since then a number of special acts have been passed for counties, repealing so much of any law as forbids vacating and changing the location of state roads “ before being opened for travel:” Brightly’s Purd., 1861, 873, note (e). There are good reasons for this feature in the road system. Roads are located by views, reviews and re-reviews. But if roads could be vacated before opening, the proceedings to lay out a new road would be virtually inoperative, for so soon as the location had been made and finally confirmed, the malcontents could begin de novo, and renew the contest over a petition to vacate and change, and in a proceeding by views, reviews and re-reviews, state roads stand precisely upon the same footing. The purpose of a special law is to accomplish what ordinarily cannot so well be done by the court. Usually these roads are laid out through several counties, which cannot be effected by the courts unless all happen to be of one mind and act by concert. Sometimes, also, roads are required in a single county for public convenience, but are prevented by hostile or rival local interests. The special law, therefore, names the commissioners and invests them with all the powers necessary to make a final location exempt from unfriendly interest. Usually the commissioners are gentlemen of high standing, and from localities beyond local influences. It is plain the whole benefit of state legislation and the prime object of the special act may be lost, if the courts of counties through which the route passes may vacate and change before the road has been opened or has disclosed its unfitness by use. The location of the commissioners may be attacked by views, reviews and re-reviews, and when one application is ended a fresh one may spring up by changing the points, and thus the legislative intent may be retarded for years, and, perhaps, defeated by unfriendly changes. What else is this but to review irregularly the work of the special commissioners, which by the act is to be a finality ? Persons familiar with the road business in the Quarter Sessions know that no disputes are more bitter than those over road proceedings. If the legislative intent were even dubious, there is no good reason for conferring a power to change and vacate state roads before experience has shown their inutility. The road cannot be wholly vacated but must be supplied by a new route. Why should the action of the-tribunal specially appointed be reviewed by another moved by individual interest often hostile to the legislative purpose ? It is time enough to change its route when experience has shown that where it is laid it is inconvenient or burdensome. I [165] know it was said by Huston, J., in State Road from Gettysburg, 2 Penna. R. 291, that it would be harsh to compel the county to make a bad or inconvenient road in order to get. permission to apply for and obtain a more convenient one. Admitting that occasional mistakes would produce this inconvenience, a particular hardship of this kind must be borne with rather than to introduce a principle which tends directly to defeat the main legislative intent. The case referred to was decided under the old law. But the Act of 1836 and subsequent legislation have given us a plain indication of legislative intent which we are bound to follow — leaving it to the legislature to change the law if it be thought better to do so. Justice Huston’s remark is just as pertinent to a county as to a state road, and yet we know that the legislature withheld the power to change or vacate a county road until after opening, and has since changed the rule only where the road is opened in part. The report of the commissioners was, under some early laws, filed at the seat of government, but even now, when filed in the Quarter Sessions, it is final without confirmation, and while it is not open to attack before opening for the same reason that county roads are not, there are other and peculiar reasons, as we have seen, why it should not be delayed and, perhaps, frustrated by hostile proceedings. The order of the Quarter Sessions is therefore reversed, and the petition and proceedings thereupon set aside and wholly annulled.