43 A.2d 529 | Pa. Super. Ct. | 1945
Argued April 24, 1945. This is an appeal from a decree of the Quarter Sessions Court of Allegheny County incorporating a part of Versailles Township in that county into a borough. The decree will be affirmed.
The borough was carved out of the southwesternmost part of the township and comprises 850 acres of land with a total population of about 1700. Within the area there are an extensive manufacturing and business district and six so-called villages each with a name of its own. These settlements are scattered throughout the section; the intervening area is farm land. Some years ago, the City of McKeesport bought a 200 acre tract of *42 township land, adjoining the city on but one side, and annexed it to the city for park purposes. The main area as incorporated, lies to the south of the park but the borough also extends around the east and north boundaries of the park in a corridor 300 feet wide. This narrow strip of land, for the most part rough farm land, connects two settlements in the northwest section with the villages to the south. The borough as a whole comprises about one-sixth of the area of the former township and on the north extends westwardly along the City of McKeesport proper. The former third election district of the township is coextensive with the borough and one of the three township elementary schools is within its boundaries. The petition for incorporation was signed by upwards of 90% of the freeholders within the area, and only one resident freeholder has excepted to the decree of incorporation.
Since the decision in the Borough of West Philadelphia, 5 W.
S. 281, there has been broader construction of the successive acts relating to the incorporation of boroughs. It is no longer the law that two or more distinct villages, with intervening farm land, may not be incorporated into one borough. In Borough ofBlooming Valley,
The question is not whether the villages are physically distinct and separated, or locally known by different names, but rather whether they, together with appurtenant lands, form one harmonious whole with interests in common which can be properly subserved by *43
borough government. Moosic Borough Incorporation,
The petition in this proceeding was filed on September 28, 1943, and the court then ordered publication of notice of the proceeding "according to the provisions *44 of the Act of May 4, 1927 . . . and its amendments." No notice was given pursuant to that order but on October 14, 1943, on motion, the court made a second order directing notice by publication "in one newspaper in the county and in the Pittsburgh Legal Journal once a week for a period of not less than thirty (30) days before the first Monday of December 1943", the beginning of the December term. Petitioners complied with this order. Section 204 of the Borough Act of May 4, 1927, P.L. 519 (re-enacted with amendments August 6, 1941, P.L. 881) 53 PS 12254, provides that "upon presentation to the court, the application shall be filed with the clerk, and notice thereof shall be given in one newspaper in the county for a period of not less than thirty days immediately before the next regular term following the filing thereof. . . ." In Allegheny County, by rule of court, the traditional quarterly terms of quarter sessions were supplanted by monthly terms of court, except during the summer. It is contended that the court was without jurisdiction in this proceeding because, under the act, petitioners were obliged to give thirty days notice prior to the November term of court, which was the then "next regular term following the filing" of the petition. It is conceded that the proceeding, otherwise, was regular.
The general rule is that where an act of assembly commands an act to be performed within a certain time, the words employed are mandatory. And it is not within the power of courts to waive or dispense with such requirement. East Lake Road and Payne Ave.,
The provision of the act requiring notice by publication for the full period of thirty days before the term of court at which the application will be heard, undoubtedly is mandatory. The procedure in this respect was fully complied with in the present case. It is immaterial, but it may be noted that appellants were in no way prejudiced by the failure of petitioners to give notice prior to the November term rather than to a term of court beginning one month later. They all appeared generally and had their day in court. If the defect amounted to no more than inadequacy, it would have been cured by their appearance and defense. Edgewood Borough, supra; Camp Hill Borough,
It may be assumed that the legislature intended to supply a substantially uniform practice in the courts throughout the state. The required notice, following the filing of the petition prior to the next term, is mandatory as applied to courts observing the conventional quarter sessions. But, in our opinion, as to a court sitting in monthly terms, the provision for notice "immediately before the next regular term" may be regarded as directory merely. It is no new principle that statutes are to be so construed as to give effect to legislative intent. Appellants received all they were entitled to, in full thirty days notice and the opportunity for a hearing within a period of but a few days more than two months after the petition was filed. Reading the statute in the light of its purpose as indicated by its legislative history, we think that the requirements of the statute were fulfilled in this case by notice to the second, rather than the first, monthly term of court following the filing of the application.
Decree affirmed at appellants' costs.