In re Kensington, &C., Turnpike Co.

• Decision Date: 02 May 1881
• Citation: 97 Pa. 260
• Parties: In re Kensington and Oxford Turnpike Company.
• Court: Pennsylvania Supreme Court

97 Pa. 260

In re Kensington and Oxford Turnpike Company.

Supreme Court of Pennsylvania.

February 24, 1881.

May 2, 1881.

February 24th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Certiorari to the Court of Quarter Sessions of Philadelphia county: Of July Term 1878, No. 14.

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F. Carroll Brewster, and David W. Sellers (with whom were Henry C. Terry and Lewis C. Cassidy), for the Kensington and Oxford Turnpike Company.—Under the old Act of March 13th 1867, Pamph. L. 420, the judges of the Quarter Sessions had to be assigned to that duty before or at, never after, the beginning of the term. It is believed that the provisions of art. V., sect. 8 of the Constitution of 1874 did not alter the law in this particular. The filing of the petition in this case in Court of Common Pleas No. 4 was therefore wholly irregular: Livingston's Appeal, 6 W. N. C. 310; Kilpatrick v. Commonwealth, 7 Casey 210. The mandamus issued to the city treasurer was a lawful process, and within the scope of the power of the Court of Quarter Sessions: In re Sedgeley Avenue, 7 Norris 509. The question of excessive award had already been passed upon by the court on the first exceptions filed by the city, and could not again be taken up. Every question as to the proper method of computing the award, and the legal basis thereof, was then fairly raised and settled. Nor was there ground for the action of the court on the footing of fraud. The alleged agreement between Terry and the turnpike company was at most an arrangement for a contingent fee, which is not necessarily contrary to law. Even if unlawful, the question is one purely between Terry and his client. The city, a third party, cannot complain of any wrong done to it. Nor was Terry obliged to divulge to the appraisers or to the court the value which his clients placed upon their property. Such conduct would have been a breach of professional fidelity and duty: Carpmeil v. Powis, 1 Phil. Ch. 687. A judgment having been once entered by the Court of Quarter Sessions, it is powerless at a subsequent term to reconsider such judgment: Commonwealth v. Mayloy, 7 P. F. Smith 291; King v. Brooks, 22 Id. 363.

C. E. Morgan, Jr., Assistant City Solicitor, and William Nelson West, City Solicitor, for the city of Philadelphia.—The record simply shows that the Court of Quarter Sessions granted the rule to show cause, and assigned further proceedings to the judges of Court of Common Pleas No. 4. The court was duly organized to take this action. How then can any question of jurisdiction arise? But further, this assignment was made in pursuance of a rule of court requiring road cases ready for argument in certain months to be assigned to certain courts. This is a delegation and assignment of the judges of those courts as judges of Quarter Sessions before the term on which they are to act, such as our opponents deem necessary. In a case like the present, it is particularly appropriate that this should be done. One of the judges of Court of Common Pleas No. 4 was sitting in Quarter Sessions in December term 1877, and was the most proper person to hear an application for the opening of a judgment obtained through fraud on the Court of Quarter Sessions while he was presiding therein. This question was argued below, and it is well settled that the court below is the proper judge of the extent and application of its own rules: Snyder v. Bauchman, 8 S. & R. 336; Umberger v. Zearing, Id. 163; In re road from Johnstown, 1 P. & W. 243; Rundel v. Keeler, 7 Watts 237; Wickersham v. Russel, 1 P. F. Smith 71; Frank v. Colhoun, 9 Id. 381; Coleman v. Nantz, 13 Id. 178; Gannon v. Fritz, 29 Id. 303; Carey v. Commonwealth, 4 Brewst. 62; Andrews v. Bank, 23 Pitts. L. J. 133. If the act of the Court of Quarter Sessions in opening its decree of December 28th 1877, was within the scope of its power, it is not the subject of review or reversal by this court: Bower v. Blessing, 8 S. & R. 243; Hill v. Irwin, 8 Casey 314; Putney v. Collins, 3 Grant 72; Breden v. Gilliland, 17 P. F. Smith 34; Sheppard's Case, 27 Id. 295. The report of the appraisers was prematurely confirmed, and such confirmation was further irregular in that it was based on the filing of a remittitur by the counsel for the turnpike company, which he had no right to do without the sanction of a stockholder's meeting. The exceptions filed to the report on February 2d 1878, were, therefore, in time and the proceedings regular. Even if the decree was regularly entered, the right to open it was not taken away by the lapse of a term. Fraud was perpetrated upon the court, and therefore it was proper to open its judgment at any subsequent time: Wanzer v. DeBaun, 1 E. D. Smith 261; Allen v. Maclellan, 2 Jones 328; Cannan v. Reynolds, 5 Ell. & Bl. 302; Booth v. Van Allen, 7 Phila. R. 401; Cochran v. Eldridge, 13 Wright 365; Stewart v. Agnew, 1 Shaw's Appeal Cases 413; Robson v. Eaton, 1 Term Rep. 62; Bandon v. Becher, 3 Cl. & Fin. 479; Smith v. Smith, 3 Phila. R. 490; Dorney v. Mertz, 8 Id. 553. Terry's action here was clearly a fraud on the court. He suppressed his knowledge as to the value put by his clients on their property in order to obtain a large award for his own benefit. It was upon this ground that the court below based their opinion and decree, and the regularity of their proceedings cannot therefore be impeached.

Mr. Justice PAXSON delivered the opinion of the court, May 2d 1881.

This was a certiorari to the Court of Quarter Sessions of Philadelphia county to review the record in a certain proceeding to assess the damages for the taking of the Kensington and Oxford Turnpike Road by the city of Philadelphia.

It is quite time it was understood that this court has no power to review such cases upon the merits. The law gives neither a writ of error nor an appeal to the Quarter Sessions in road cases. The decision of that court is final and conclusive upon all questions touching the merits. We can only review its action upon a writ of certiorari, which brings up nothing but the record, and our authority is limited to an examination of the regularity of the proceedings. This is settled law. See Shenango Township v. Wayne Township, 10 Casey 184; In re Church Street, 4 P. F. Smith 353; Duff's Private Road, 16 Id. 459; Philadelphia & Trenton Railroad Co., 6 Whart. 25; Road in Chartiers Township, 10 Casey 413; Road in Moore Township, 5 Harris 116; Kirk's Appeal, 4 Casey 185. A certiorari brings up nothing but the record, and the Supreme Court is confined strictly to questions affecting its regularity: In re Thirty-fourth Street, 31 P. F. Smith 27; Esling's Appeal, 8 Norris 205; and this court cannot look into the evidence, though incorporated in the opinion of the court below: Mauch Chunk v. Nescopeck, 9 Harris 46; Bradford v. Goshen, 7 P. F. Smith 495; Derry v. Brown, 1 Harris 389; Westmoreland County v. Conemaugh Township, 10 Casey 231; Plunkett's Creek Township v. Fairfield Township, 8 P. F. Smith 209.

In such cases, if the court below had jurisdiction and has proceeded in conformity with law, we have no power to reverse. It ought not to be necessary to repeat this so frequently, but the voluminous paper-books in this case, prepared as though upon an appeal or writ of error, including nearly four hundred pages of printed testimony, admonish us that our repeated attempts to mark the distinction between a writ of certiorari and a writ of error and appeal, have made but a slight impression on the professional mind.

The proceeding below was instituted under the Act of Assembly of 24th March 1869, Pamph. L. 525, the object of which was to provide a method whereby a turnpike road in the city of Philadelphia may be relieved from toll and thrown open to the public. We need not give in detail the provisions of the act. It is sufficient to say briefly that it provides for the appointment of six viewers by the Court of Quarter Sessions, three of whom are to be nominated to the court by the officers of such company, who shall proceed to view and appraise such road. The petition may be by either the managers of such road or by ten citizens. Before, however, the court shall appoint viewers, it shall refer the petition to an examiner, who is required to take testimony and report to the court upon the propriety of opening the road to public travel. The viewers or appraisers are required to make their report to the Court of Quarter Sessions, and if the same be approved by said court, the appraised value of said road shall be paid by the city treasurer in the same manner as road damages in other cases.

With this brief explanation of the nature of the proceeding, I now turn to the record to see what has been done in the court below. I there find that on June 4th 1877, the petition of fifty four citizens was presented under the Act of March 24th 1869, above referred to, setting forth, inter alia, that the Kensington and Oxford Turnpike Company had constructed a turnpike road, which "is an obstruction to the improvements of the city," and that "the public convenience now requires that said turnpike road shall be made free from toll," and praying the court to appoint an examiner according to the provisions of said act, to take testimony, and report the facts in relation to said road for further order of the court on the same. On the same day the court below made the appointment of an examiner, as prayed for. On November 30th 1877, an examiner filed his report with the testimony, setting forth, inter alia, "that he believes it to be to the best interests of the citizens living in the neighborhood, and owning property in the vicinity of said road, and also to the city itself, in short that the public convenience requires that the prayers of the petitioners be granted, and that the said road should be made...