Delaware Avenue

67 Pa. 309, 1871 Pa. LEXIS 104

• Court: Supreme Court of Pennsylvania
• Decided: January 16, 1871
• Status: Published

Opinion

The opinion of the court was delivered,

by Agnew, J.

It is not for this court to determine the motives of the legislature of 1869 in passing the Act of 3d May, relative to orders of road view and assessment of damages, in Philadelphia county, Pamph. L. 1869,1247. They may not have been justifiable. But we find that'the act, in the most direct and explicit language, declares “ that no report of viewers appointed, &c., shall be set aside unless in pursuance of some exception filed to the said report as in the said act provided (13th April 1854), and in all cases, &c., brought into the Supreme Court by writ of certiorari to the order of the Court of Quarter Sessions, setting aside the report of a jury, the said order shall be revised and the cause remanded for further proceedings, if it does not expressly appear from the record that the said order was made in pursuance of an exception or exceptions sustained by the court below.” Exceptions were filed in this case, but it does not expressly appear in the order setting aside the report, that it was made in pursuance of any exception sustained by the court. The entry is simply— “report set aside.” Under the first clause of the act quoted, we would undoubtedly be justified in interpreting the order setting ■aside the report, as made in pursuance of the exceptions previously filed. This would be a just implication from the record. But the second clause of the act takes away all implication, by declaring that it shall expressly appear from the record, that the order was made in pursuance of an exception sustained by the court. It is necessary, therefore, that the Court of Quarter Sessions shall expressly state, in setting aside' a report, what exception is sustained, and set it aside thereupon. The legislature seems to have supposed, that a hidden meaning might lurk in the short entry — “report set aside,” without saying what exception is sustained, and that such an entry might cover grounds contained in no exception; and as a remedy it has required the court to state expressly the exception sustained on which the order to set aside is made. It is not a warrantable assumption that the eminent judges who adorn the bench of the Courts of Common Pleas and Quarter Sessions in this city, would act upon considerations not appearing in the record; yet the intention of the law, to require the ground of setting aside to appear on the record, is so clear we cannot disregard it. We are therefore compelled, in revising this case, as by the Act of 1869 we are commanded to do, to reverse the order setting aside the report, and to remand the cause to the Court of Quarter Sessions for further proceeding according to law.

Order reversed, and procedendo awarded.