Commonwealth v. Cheltenham & Willow-Grove Turnpike Co.

Tilghman C. J. delivered the court’s opinion. A motion has been made to quash the certiorari, in as much as it was not specially allowed by this court or any member thereof. It has been urged, that on grounds of public convenience, the certiorari ought not to have issued, unless it had previously received a special allocatur. Unquestionably this court has a superintending power over its own process, and will see that it is not abused; but we know of no instance wherein an application has been made to the court, or any judge in the vacation, for the allowance of a certiorari to remove proceedings before justices of the peace in civil cases. The consequences of the procedure affect materially the rights of the company; and it would be doing them manifest injustice to debar them from the examination of matters touching their immediate interests before a tribunal of limited jurisdiction. We therefore overrule the motion. No less than seven exceptions have been taken to the proceedings. We do not deem it necessary to give an opinion on all of them, as we are clearly satisfied that two of them at least are fatal. The inquisition taken before the justice of peace and the three persons summoned to view the road, only finds that on the 2d September 1809 when the same was taken, the said road, in different parts thereof, was not in good and perfect order as the law directs; but does not find that it had so continued for the space of five days. This was essentially necessary, under the 14th section of the act of 24th March 1803, (5 St. Laws 409) which incorporated the company. Nor does it appear, either in the information made to the justice, his precept, the inquisition, or his record returned, that the parts of the road complained of, as being out of repair, were in the county of Montgomery. This also wqs necessary .by the same section of the act. It must clearly ap [264] pear on the face of the proceedings, that the justice of the peace acted within his jurisdiction. The law cases adduced by the counsel of the turnpike company abundantly prove, that these two exceptions are insuperable. We are also strongly inclined to think that the gate-keeper, to whom notice of the inquisition was sent, should have been designated by name, and the number of the gate which he kept, that it might judicially appear that the injunctions of the law had been complied with; but we give no decided opinion on this exception. We are of opinion for the former reasons, that the proceedings before the justice should be quashed. Proceedings quashed.