Road in Upper Yoder Township

Opinion, Me. Justice Steeeett : Viewers, appointed by the court on petition of sundry inhabitants of Upper Yoder township, reported in favor of a public road between the points named in the petition, to which report exceptions were filed. Oh petition of sundry other inhabitants of the township, reviewers were appointed, who reported that the proposed road was unnecessary, and to their report exceptions were also filed. When the court came to consider these reports and exceptions thereto, the learned president said, in his opinion, that he was “ averse to passing on the case finally without further information.” He thereupon, of his own motion and without being petitioned to do so, ap [643] pointed re-reviewers, who reported in favor of a public road located on different ground. That report was approved and the width of road fixed at thirty feet, and was afterwards confirmed. The assignments of error challenge the right of the court thus, of its own motion, to appoint the re-reviewers and after-wards approve and confirm their report. The contention is that the court had no jurisdiction to do so, and hence the proceedings were coram non judice and void. This position is well taken. A petition was necessary to give the court jurisdiction in the premises. The proceedings in road cases being statutory, the provisions of the law should be followed. The first section of the act of June 13, 1836, declares that the Court of Quarter Sessions, on being petitioned to grant a view for a road, shall have the power to appoint viewers, etc. Subsequent sections of the act contemplate the appointment of reviewers and re-reviewers, only on the petition of some one interested in the proposed road. The fifty-fourth section of the act further provides “ that the expense of views of private roads, and the expense of any review or of any view subsequent to a review, of a public or private road, shall be borne wholly by the persons applying for the same: ” Act of June 13,1836, P. L. 563. If reviewers or re-reviewers are appointed without being petitioned for, how is the court to dispose of the costs ? In Hellertown Road, 5 W. & S. 202, it was said the objection that there was no petition on which to found the re-review is fatal; that a petition is necessary “ in order that the court may know on whom to throw the costs.- That the costs have been paid is no answer, for the court has jurisdiction only on petition.” The reason suggested by the learned judge for appointing the re-reviewers, on his own motion, discloses a practice that would be more honored in the breach than in the observance thereof. He says: “ In Cambria county the viewers, both under the old and the new law, have been appointed ex parte on the suggestion of the petitioners. The viewers in nearly all road cases report favorably, and in a majority of cases the road is laid out and opened without objections. In case of objections, a remonstrance is sometimes filed, but the more usual course is a peti [644] tion for a review. That is also ex parte, and the reviewers are ■usually in favor of another route or opposed to the road generally.” The practice is obviously a bad one, and cannot be abandoned too soon. It is the duty of the court itself to select and appoint competent, disinterested, and impartial men to serve as viewers, reviewers, etc. If the petitioners are permitted to select them, it may be safely assumed, as a general rule, that they will suggest persons whose views are likely to be in harmony with their own wishes, and the result will generally be a report favorable to the petitioners. The several specifications of error are sustained, and the order of court appointing the re-reviewers, together with all subsequent proceedings, is reversed and set aside; and the record is remitted for further proceedings according to law.