In re Church Street

The opinion of the court was delivered, by Thompson, J. The case is before us on certiorari, which does not bring up the testimony that may have been heard below on the exceptions to the report: Kirk’s Appeal, 4 Casey 185 ; Spring Garden Road, 5 Wright 144; Rule YI. of this court; Wright’s Index 315; hence the presentation of testimony by the except-ants is out of place, so far as this case is concerned. 1. The 1st specification of error is to the power and authority of the commissioners under the Act of the 4th February 1865, to [356] assess damages to the property-owners on the street. Whatever difficulty there might have been to maintain their right to do so under the Act of 20th May 1864, all doubt was removed by the first-mentioned act. The proviso to the 2d section expressly recognises this right as existing, and it needs no argument to prove it. 2. The 2d and 3d specifications of error are objections to the competency of two of the commissioners, but not appearing on the record, we cannot take notice of the testimony to prove it: Rule of Court, supra. 3. The last is a general error, and need not be noticed. See Rules of Court requiring the errors to be specified. 4. The main argument in the case was directed to a point not embraced by any of the exceptions to the proceedings below, not raised by any exception taken to the confirmation of the report by the Court of Quarter Sessions in this court, namely, the constitutionality of the Act of the 4th of February 1865, under which the commissioners in part acted. It was not raised when the commissioners were appointed, nor when their report was before the court for confirmation, nor in the court excepting in argument. Under these circumstances we ought not to notice it: Rule IX., §§ 4 and 6, of the Rules of this Court; Wright’s Index 318-19. We may notwithstanding however, say that we see nothing whatever to create any doubt of the entire constitutionality of either of the Acts of Assembly referred to. Proceedings affirmed.