In re Incorporation of Osborne

| Pa. | Oct 25, 1882

Mr. Justice Trunkey

delivered the opinion of the court, October 25th 1882.

In addition.to the requisites prescribed by prior statutes, the. Act of June 2d 1871, P. L. 283, provides: 1. That any application for the incorporation of a borough shall be laid before the Grand J ury, at the same term of the court when presented,if convenient, and in no case later than the next subsequent term; 2. That it shall be signed by the petitioners within the three months immediately preceding its presentation; and, 3. That public notice of the intended application for a borough shall be given in at least one newspaper of the proper county, for a period of not less than thirty days immediately before the petition shall be presented.

The .plain requirements of this statute cannot be evaded by, any discussion respecting the necessity of its enactment. Its obvious intendment is, that persons opposed to the incorporation prayed for, shall have reasonable notice and opportunity to be heard. It is the duty of the Grand Jury to make a full investigation, not only to ascertain if the conditions of the statute have been complied with, but to determine whether it is expedient to incorporate the village described in the petition. To this end the parties have a right to be heard, for, and against the incorporation. Those against, are not likely to be present unless notified. And for their convenience delay in submitting the application to the Grand Jury is prohibited. Personal notice to the residents within the limits of the proposed corporation is not required, and as some may learn of a petition who would not of a notice in a newspaper which they do not read, the petition shall not be received by the court unless signed within three months of its presentation. Its circulation for signatures of a majority of the resident freeholders, is likely to become generally known in the village, and, therefore, it must be presented within the limit or the residents may consider it abandoned.

This record fails to show when the names attached to the petition were signed, or that public notice was given. These omissions are as fatal as would be any other omission of an essential to the affirmative action of the court. The Act of 1834 provides that the application shall be signed by a majority of the freeholders residing within the limits of the town or village to be incorporated. That the application was so signed must appear on the record, to show jurisdiction in the Court of Quarter Sessions: Borough of Little Meadows, 28 Pa. St. 256. On the date of the filing of this petition an affidavit was appended setting forth that a majority of the freeholders, resident within the limits, had signed; it would have been easy to have stated within what time the names had been attached.

The petitioners allege that public notice was given, which appears of record. This alleged notice, signed by the attorney for. the petitioners, is without date, and is in these words: “Notice is hereby given that it is intended to apply for a borough charter for part of Aleppo Tp., Allegheny Co., Pa., to be called the Borough of Osborne.” True, this is notice of an intended application. But it gives no information of the time and place, when and where the petition shall be presented. When a party is entitled to notice that he may appear to answer in a legal proceeding, it shall inform him of the day and place. Even if the place could be omitted on the ground that every man is presumed to know the forum of such proceeding, the day could not. The statute intends notice to the residents of the village when and where the petitioners intend to apply for a borough charter. The exceptants were, not in court until after the action of the Grand Jury, and they can avail of any defect in the record.

Order and decree reversed, and the proceedings set aside.

Appeals of Rhoads and others.

Appeal from the decree of the Quarter Sessions of Allegheny county.

Trunket, J. — The statutes vest the discretion in the Grand Jury and Court of Quarter Sessions, to determine all questions of fact, and expediency, in a proceeding to incorporate a town or village. An appeal does not lie from the decree of the Quarter Sessions.

Appeal quashed.