46 Pa. Super. 19 | Pa. Super. Ct. | 1911
Opinion by
It has been settled by numerous decisions that an appeal from a decree of the court of quarter sessions creating a borough is to be disposed of as if the writ were a certiorari and that the Act of May 9,1889, P. L. 158, giving to the proceeding the form of an appeal did not change its essential nature. No right of appeal was allowed to review such a case on its merits prior to the passage of that act and it does not expand the law theretofore existing so that the evidence may be examined and reviewed to determine the propriety of the decree. A reference to Camp Hill Boro., 142 Pa. 511, and Swoyerville Boro., 12 Pa. Superior Ct. 118, is sufficient. All the questions of fact bearing on the expediency of the proposed incorporation are committed by the act of June 26,1895, P. L. 389, to the court of quarter sessions and the appellate courts have no authority to review the exercise of that discretion except where an abuse of discretion is distinctly charged and clearly established: Moosic Boro., 12 Pa. Superior Ct. 353; Old Forge Boro., 12 Pa. Superior Ct. 359; Leetsdale Boro., 25 Pa. Superior Ct. 623; Mill Creek Boro., 32 Pa. Superior Ct. 465. The legislation on the subject very wisely intrusts the determination of the advisability of the creation of a borough to the court of quarter sessions. Authority must exist somewhere and it is well vested in a tribunal having knowledge of the vicinage and the people and occupying an impartial and
Objection is made to the legality of the proceeding on the ground that a borough cannot be created out of territory within the limits of a township of the first class. It is not claimed that any statute expressly limits the power of the court nor that any precedent forbids the proceeding. The proposition is one of inference from the provisions of the act of April 28, 1899, P. L. 104, and its supplements, creating and providing for the government of townships of the first class. It is, of course, conceded that prior to the passage of these statutes a part of a township could be formed into a borough. In fact they were almost universally created from township territory. The legislation classifying townships did not have for its object a change in the essential nature and character of a township as a municipal organization. A large increase in the population of rural territory in some of the counties of the state, generally in close proximity to cities, called for a more extensive and efficient form of government than that provided by the general laws regulating townships, to be applied in districts where the
Further objection is made that land of Howard Sellers is included in the borough. This is a homestead of seventeen acres said to be used for farming purposes, but this raises a question of fact for the consideration of the court below. An examination of the map of the territory to be incorporated leads us to believe that it was not improper to include the land in question. The court has found that it was in no sense a farm but a homestead in the suburbs of a great city. It is assessed for taxation at $40,000 and is said to be worth more than three times that amount. It is so related to the closely built up part of the territory involved as to be properly connected therewith in any project for the formation of a borough. The fact that part of it is used for farming purposes does not prevent its inclusion. Nearly all of the boroughs in the commonwealth inclose land which is used for agricultural purposes. Blooming Valley Boro., 56 Pa. 66, illustrates what has been done with reference to the inclusion of farm lands. Lands used exclusively for farming and not properly belonging to the village are rightly excluded, but what land belongs to this class is a question of fact to be determined by the court having control of the proceeding. These considerations apply as well to the complaint that the low land along Cobbs Creek was included. If the borough is to exist at all this land naturally would come within the corporate limits as would also the Millbourne Mills property.
Objection is made that it does not appear that the advertisement was made as required by the statute, but thé •record shows that at the hearing before the court the proof of publication was offered and the decree finds that the proceedings are regular. It is to be noticed, too, that no objection was made to the sufficiency of the notice in
Another ground of complaint is that the decree was not entered in time, but this is without merit. The case was regularly proceeded with and after the argument it was taken under advisement by the court and the usual order under such circumstances was entered c. a. v. The effect of this was to continue the case until a final judgment should be rendered. It was clearly within the power of the court to enter an order which would give time to examine the voluminous evidence and consider the various legal propositions presented and dispose of them in a deliberate and orderly way: Ivyland Boro., 27 Pa. Superior Ct. 19. We have not found any errors of law in the record brought up nor are we convinced that an abuse of discretion was committed.
The appeal is dismissed and the decree affirmed at the cost of the appellants.