State Road in Lehigh & Bucks Counties

The opinion of the court was delivered, by Sharswood, J. — By an Act of Assembly entitled “ An Act to lay out a State Road in Lehigh and Bucks Counties,” passed March 29th 1867, Pamph. L. 615, three commissioners were appointed to view, lay out and mark a state road from a point in Bucks to another in Lehigh county, and it was provided' “ that it shall be the duty of the said commissioners or a majority of them * * * carefully to view the ground on which the said road may pass and lay out and mark the same on the route agreed upon by them;” one copy of their report to be filed in the office of the clerk of Court of Quarter Sessions of each county: from thenceforth the said road to be a public highway, and to be opened and repaired as all other roads laid out by counties are made and repaired. A report signed by two of the commissioners named was filed in the office of the clerk of Quarter Sessions of Bucks county. Several exceptions were presented, and a rule taken to show cause why they should not be filed and a jury to view or review appointed, which was discharged; and a rule on the other side to show cause why an opening order should not issue was made absolute. The record has been removed by certiorari to this court, and the only error which has been insisted on here, and which we need consider, is that the court below erred in treating the paper filed as a report in pursuance of the Act of Assembly, and in awarding the opening order. It is not necessary to inquire how it would have been if the act had simply devolved the duty of laying out the road on the three commissioners named. Being an authority of a public and not a private nature, it is settled that although all must convene and deliberate a majority may decide: Case of Chad’s Eord Turnpike, 5 Binn. 481. If this had not been done, it might have been in an ordinary case the subject of an exception of fact, which however must be taken in the court below and substantiated by evidence. The maxim omnia prcesumuntur rite esse aeta would certainly apply, as it has been held even in the case of a private authority. When a reference is made to three, whose award or that of a majority of them to be final — in which case it is neces [333] sary that all should hear and deliberate, yet it has been decided in the case of an award by two that the presumption is that their proceedings were regular: Robinson v. Bickley, 6 Casey 384. Even, therefore, if the 5th section of the act, which provides that “ if any vacancy occur in the number of the commissioners the same shall be supplied by the remaining commissioners or commissioner selecting a suitable person or persons to constitute a board of not less than three members,” did so control the enactment in the 2d section as to make it necessary that the whole board should act, it is evident that it would not constitute a valid ground of objection to the report in this case; because it was not one of the exceptions presented in the court below that all the commissioners did not act, but only that it so appeared on the face of the report — which was an inference merely from its being signed only by two. But we are clearly of the opinion that such was not the effect of the 5th section. It was necessary that there should be an existing board of not less than three members in order that the 2d section should be carried out by the action of a majority. But giving such a construction as will make the two sections consistent, it means to say that a majority of the board, whether composed of the original three, or of such as should be appointed to supply vacancies, should lay out the road. If the 5th section had preceded the 2d, as it ought properly to have done, this would have been apparent to the most cursory reader. We have assumed that the Court of Quarter Sessions would have had jurisdiction to entertain the exception and refuse the opening order, if the report had not conformed to the requirements of the Act of Assembly, without, however, meaning to express any opinion on that point. Order affirmed.