In re Road in Silver Lake Township

Mr. Justice Paxson delivered the opinion of the court, It appears from this record that at April Sessions 1875, James C. Wheaton, Benjamin C. Vance and B. L. Canfield were appointed re-viewers. An order ivas issued to them returnable at August Sessions. No action was taken under this order by the re-viewers named therein. At the August Sessions the order was continued, and Wilson J. Turrell, Christopher Sherman and Edmund Baldwin were substituted as viewers. The continuance and the substitution were endorsed on the order. No order AYas issued to the viewers last appointed. They proceeded to act under the original order, which Avas not directed to them. This Avas irregular : Metzler’s Road, 12 P. F. Smith 151. It is not to be tolerated, that viewers shall go upon the ground and exhibit as their authority to enter upon the private lands of a citizen, an order directed to some one else. Nor does it matter, as was observed in Metzler’s Road, supra, that the appointment of the viewers last named appears upon the record. The order Avas not directed to them; and the persons assembled upon the ground might or might not have knoAvn of the substitution. There is no excuse for this laxity. It leads to confusion and uncertainty. The order to the AdeAvers gave them poAver to lay out a road but not to vacate. They proceeded to lay out and vacate. The report was made to November Sessions 1875. Exceptions Avere filed, and pending said exceptions, the court, on April 17th 1876, granted a rule to shoAY cause, “ why the order of re-view shall not be amended by inserting in it the Avords ‘ Avith power to vacate so much of the Buckley road as Avill therefore become useless.’ ” On the 5th of June 1876, the above rule was made absolute, with the direction that after amendment the order should go to the viewers for their approval. Subsequently, but of what date does not appear, the. [134] viewers made this endorsement upon the order: “ This order of re-view, as amended by the court, approved by us.” On the 17th of August 1876' what is designated as the re-viewer’s amended report appears to have been re-filed, and on the same day confirmed finally. We have no doubt of the power of the court to send a report back to the viewers for amendment of clerical errors before confirmation : Beigh’s Road, 11 Harris 302; New Hanover Road, 6 Id. 224; Potts’s Appeal, 3 Id. 416; Towamencin Road, 10 Ban-195. Nothing of the kind appears to have been done in this case. The court amended its own order and sent that back to the viewers for their approval. This would seem to be sanctioned by what was said in In re Penn Township, 8 Barr 25, where it is stated, per curiam : “ Had the deficiency in the order been pointed out, the court would have supplied it; and referred the report back to the viewers for their sanction of it; and thus the objection would have been obviated without prejudice to any one.” This language must not be extended beyond its obvious meaning. It could not have been intended that the viewers should pass upon- the propriety of the action of the court in amending its order. Eor what purpose then should the amended order go back to the viewers ? Manifestly, for such further action, if any, as might be necessary. If in point of fact they had been sworn or affirmed to do precisely what the amended order required to be done, and had performed their duties as they would have done if the order had been properly issued in the first instance, and the same appeared of record, it would be a mere matter of amendment. But if the record failed to disclose this, then it would become necessary for the viewers to set it forth in* a supplemental report. And if any duty enjoined by the amended order has been omitted by the viewers, a serious question might arise as to how far the viewers could begin de novo as to such omitted duty. No such question, however, is now before us. In this case the order contained no direction to vacate. They were directed to view and lay out. The record shows that they were sworn or affirmed according to law. The oath must be measured by the duty enjoined. The viewers were .sworn to view and lay out; nothing more. They proceeded to vacate without authority and without the obligation of an oath. The record does not show that they were re-sworn after the order had been sent back to them, and if it did it does not follow that the defect would be cured thereby. Where the viewers have been properly sworn, but it does not appear of record, the record may be amended to conform to the I fact. But where an essential duty has been omitted there can be ' no amendment, for there' is nothing to amend by. The case of Allentown Road, 5 Whart. 442, was cited as sustaining the proceedings in this case. We do not so regard it. It is true, this court refused to reverse in that case upon a question similar to this, but the decision was placed upon the ground that the point was not [135] made in the court below. Says Sergeant, J.: “ There can be no doubt if the objection to the regularity of this proceeding had been taken below, and was founded in fact, it must have prevailed.” Here the point was taken below and an attempt was made to cure the defect by an amendment of the order. The amendment was well enough, and if it had appeared of record that the viewers had been sworn to vacate as well as lay out, the regularity of the proceedings would have been more apparent. The order of the Quarter Sessions, confirming the amended report of the re-viewers, is reversed and set aside.