#### South Chester Road.

1. The’Oourt of Quarter Sessions lias not jurisdiction to lay out a road wholly within a borough incorporated subject to the Borough Law of April 3d 1851.

2. The Act..©f April 12th 1869, relating to roads in Delaware county, does not repeal the Act of 1851 as to jurisdiction.

3. The Act of 1869 is to regulate the proceedings of viewers under an order made by proper authority ; not to change or confer jurisdiction over roads, streets, &c.

4. Somerset and Stoystown Road, 24 *P. F.*Smith 61, followed.

*371January 18th 1876.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.

Certiorari to the Court of Quarter Sessions of *Delaware county:*Of July Term 1875, No. 135.

On the 28th of May 1874, a petition was presented for the view of a road to begin in Seventh street, at the line between the city of Chester and the borough of South Chester, and to end in a public road called Highland Avenue, at a point, &c., in said borough of South Chester; the street prayed for being an extension of Seventh street in the city of Chester. After reports of viewers and reviewers, a jury of re-review was appointed April 6th 1875.

The re-reviewers reported that there was occasion for a road as desired by the petitioners and that it was necessary for a public road; they therefore returned for public use a road “ beginning at a point in the middle of Seventh street, in the city of Chester, as the same is laid out and opened by said city, in the middle of Lamoldn run, the said run being the boundary line between said city of Chester and the said borough of South Chester, thence on a -line being a projection of the middle line of said Seventh street, &c., by a single course to Highland Avenue. The road was all in the borough of South Chester. A number of persons through whose land the road was located and the council of the borough of South Chester filed exceptions to the report of the re-reviewers.

The principal exception was, that the Court of Quarter Sessions had no jurisdiction, the jurisdiction being in the burgesses and council of the borough.

The borough was incorporated by Act of Assembly of March 12th 1870 (Pamph. L. 413), subject to “the General Borough Laws of the Commonwealth.” These laws are the Acts of April 3d 1851 (Pamph. L. 320) and April 22d 1856 (Pamph. L. 525). Sect. 2 of the Act of 1851, 1 Br. Purd. 167, pl. 22, enacted that a borough corporation should have power, “to survey, lay out, enact and ordain such roads, streets, &c., as they may deem necessary,” &c. Sect. 1 of the Act of 1856, 1 Br. Purd. 174, pl. 94, enacts, that wherever the burgesses and town council of a borough shall open, &e., any street, they may apply to the Court of Quarter Sessions for the appointment of seven freeholders of such borough who shall assess the damages to parties injured by the opening of the road.

The Act of April 12th 1869, Pamph. L. 862, relating to the “road laws in Delaware county,” enacts that the number of road viewers “ *appointed by the Court of Quarter Sessions*shall be six,” &c., that if the viewers decide in favor “of locating a public road or street,” and the landowners will not release their claim for damages, the viewers should assess the damages on the adjoining properties as is provided in the act. The act throughout *372speaks of *streets*in connection with *roads ;*it speaks also of the supervisors of “ townships, *boroughs*and *cities.”*

The Court of Quarter Sessions sustained the exceptions, and set the report of the re-reviewers aside : Clayton, P. J., delivering the opinion, viz:—

“ The street proposed to be opened in this case has both its termini in the borough of South Chester. It begins and ends within the borough limits. The street proposed to be opened by these proceedings is one of the streets of the borough, laid down upon its adopted plan as sixty feet wide. The case is ruled by Somerset and Stoystown Road, 24 P. F. Smith 61. We do not think the Act of April 12th 1869, affects the point decided in this case. While boroughs are named in the Act of 1869, it only means that where boroughs intend to open streets therein, the borough authorities must proceed under this act, and not the Act of 1836. It does not take from boroughs the authority conferred by the General Borough Law, nor does it repeal it. The exceptions are sustained and report set aside.”

The petitioners took out a certiorari from the Supreme Court, and assigned the decree setting aside the report for error.

*D. M. Johnson*and *W. Ward,*for certiorari.

*W. J. Harvey*and *O. Harvey,*contra.

January 24th 1876,

Judgment was entered in the Supreme Court

Per Curiam.

The public road lies within the borough of South Chester as laid out by the viewers, and as is manifest from the entire record. Being wholly within the borough, the Court of Quarter Sessions had not jurisdiction, as is well shown in the case of the Somerset and Stoystown Road, 24 P. F. Smith 61. The Act of April 12th 1869, does not rejoeal the General Borough Law of 3d óf April 1851, and the supplement of April 22d 1856, as regards the point in controversy, viz., jurisdiction. It is an act intended to regulate the proceedings of the viewers under any order made by proper authority, but not to change or confer jurisdiction over the subject of public roads, streets and alleys. We see no error in the record.

Decree affirmed.