#### In the Same Road.

*Certiorari*by the Perkiomen and Reading Turnpike Company, The Directors of the Poor of- Montgomery County, and Jacob Tyson *et al.*

The proceedings in relation to this road are stated in the foregoing case, the errors assigned being the decree of the court below dismissing the exceptions to the report of the commissioners on the state road: *supra,*p. 161. The grounds on which this case was decided below and in the Supreme Court, render it unnecessary to set out the exception and errors assigned at large. They alleged a disregard of the requirements of the act by the commissioners; improper conduct by them while deliberating; laying the road on the turnpike, the road in the act being different from that petitioned for, and having been obtained without notice.

The grounds upon which the court below dismissed the exceptions was, that “ the court have no power to set aside the report (of the commissioners) upon exceptions.”

This *certiorari*was issued after the decision in the preceding case.

*166*C. Hunsicker*and *A. B. Longaker,*for plaintiffs in error.—

The act specifically directs the point at which the road is to terminate ; the record shows that the commissioners did not follow the direction, which is to be construed strictly: Hellertown Road, 5 W. & S. 202.

If the road could be laid on part of a turnpike contracted under a charter, it could have been laid on ten miles, wrhich would be revolting to common sense. The company’s charter was a contract which could not be impaired by subsequent legislation : Iron City Bank *v.*Pittsburgh, 1 Wright 345 ; Bank of Pennsylvania *v.*Commonweath, 7 Harris 151. But the act did not confer authority on the commissioners to destroy the property of any private corporation.

The evidence shows that the Act of Assembly was a fraud on the community; and the opinion of Judge Chapman declares that *“*errors were committed by the commissioners -which imperatively called for the interference of the court.”

*D. H. Mulvany,*for defendants in error.

The plaintiffs in error have no standing in court. They have resorted to review and failed, and cannot fall back on their exceptions.

The court below decided they had no jurisdiction; the except-ants cannot go behind that and argue upon the allegations in their exceptions. They must be confined to the question raised on the record: Simmond’s Estate, 7 Harris 439; Weaver’s Estate, 1 Casey 434. There is nothing to restrain the legislature from authorizing a state road to be laid out on a turnpike: Susquehanna Canal Co. *v.*Wright, 9 W. & S. 10 ; New York and Erie Railroad Co. *v.*Young, 9 Casey 181; Monongahela Navigation Co. *v.*Coons, 6 W. & S. 101; The Mayor, &c., *v.*The Commissioners, 7 Barr 355 ; Mifflin *v.*Railroad Co., 4 Harris 183 ; Sharpless *v.*The Mayor, Id. 166.

The turnpike company filed no exceptions, and cannot now except. Their “ protest” was not the subject of judicial notice: Cash’s Appeal, 1 Barr 166; Berg *v.*Moore, 7 Id. 94.

The Supreme Court will not review the facts which have been decided in the court below: Road in Macungie Township, 2 Casey 221; Loretto Road, 5 Id. 350; Banning *v.*Taylor, 12 Harris 289.

The opinion of the court was delivered, February 7th 1867, by

Agnew, J.

The Quarter Sessions has, in relation to roads, only the powers conferred by statute. There is no act conferring a general power to revise the proceedings of commissioners appointed to lay out state roads under special Acts of Assembly. Deriving their powers from the special law, these commissioners are wholly governed by its provisions. Where confirmation of *167their work is not committed to the Quarter Sessions, it has no jurisdiction over their report, either to confirm or set it aside. •

In this case the special law confers no control. It does not even require the clerk of the court to enter the report upon the record, but simply directs the commissioners to deposit it in the clerk’s ofiice.

It is not properly speaking a *report,*for it is not required to be made to the court, nor to be entitled as in it; and the paper itself makes no reference to any court.

The act itself extends the power of the court only to the proceeding to open the road, and under the general laws, the court has afterwards the power to review and to change and supply such parts of it as shall become useless or burdensome.

There was no error in dismissing the exceptions, and the decree must be affirmed with costs, to be paid by the appellants.