
    [Philadelphia,
    April 10, 1826.]
    CERTIORARI.
    Case of the Division of MACUNGIE Township, in the County of Lehigh.
    If the Court of Quarter Sessions, on a petition for the division of a township,, under the act of the 24th of March, 1803, make ah order appointing three men to make a plot or draught of the said township, and the division line proposed to be made, and from their return it does not appear that they made any inquiry into the expediency of granting the prayer of the petition, the proceedings are erroneous.
    The proceedings in this case were brought before this court by a certiorari, directed to the Court'of Quarter Sessions oí Lehigh county. By them it appeared, that a petition was presented by sundry inhabitants of Macungie township, setting forth.that the township was too large, and praying the court “ to appoint three impartial men, to make a plot or draught of the said township, and of the division line proposed to be made therein,.agreeably to the provisions of the act of assembly in such case made and provided.” And thereupon the court made an order, appointing three impartial men (s to make a plot or draught of the said township, and of the division line proposed to he made therein, agreeably to the provisions of the act of assembly, in such case made and provided,” and to make a report of their proceedings therein to the next court. - To this order, the three men appointed by the court made a return, in which, after setting forth that they had been appointed by the subjoined order of court, to make a plot and division of the township of Macungie, they reported, that in obedience to the said order, they had made a division of the said township as follows;— and then described the division, a draught or plot whereof was annexed to the said return. The concluding words of the report are, “ and this is our opinion.” The act of assembly of the 24th of March, 1803, under which these proceedings were had, (4 Srn. L. 40,) directs the court, on a petition for the division of a township, to appoint three impartial men, if necessary, to inquire into the propriety of granting the prayer of the petition, and declares that it shall be the duty of those men, or any two of them, to make a plot or draught of the township, and the division line proposed to be .made therein, which they, or any two of them, shall report to the next Court of Quarter Sessions, together with their opinion of the same; and at the court after that to which the report shall be so made, the court shall set aside, or confirm the same, as to them shall appear just and reasonable.
    
      Porter, against the proceedings,
    contended that they were erroneous, because the viewers were only directed to make a plot of the proposed division of the township, and not to give their opinion whether the division was proper, which the act of assembly requires.
    
      Kittera, contra,
    answered, that the petition was substantially agreeable to the act of assembly. It sets forth that the township is too large, and prays that three men may be appointed to make a plot.
   The opinion of the court was delivered by

Tilghman, C. J.

The objection to these proceedings is, that it does not appear that the men appointed by the court made any inquiry into the expediency of granting the prayer of the petition. On the contrary they seem to have taken for granted, as they well might, from the words of the order of the court, that their duty was to make a division without any previous inquiry; so that all they had to do, was to make the most convenient division; and I understand the concluding words of this report, li and this is our opinion,” to mean no more, than that the division they had made, illustrated by a draught or plot, was, in their opinion, the most convenient that could be made. But whether it was expedient to make any division, no opinion was given. This was an omission of great importance, which put the division of the township on a footing not warranted by the act of assembly; for the making of a division is one thing, and forming a judgment on the expediency of making such division, is another. If the order of court had been, to inquire, in the first place, whether any division was expedient, we know not what would have been the result. It is the opinion of the court, therefore,, that the defect is fatal, and the proceedings should be quashed.

Proceedings quashed.  