Incorporation of Narberth, 171 Pa. 211

Incorporation of Narberth

171 Pa. 211 | Pa. | 1895

Opinion by

Mb. Chief Justice Stebbett,

It is rightly conceded by the appellants that “ the general inexpediency of incorporation ”—alleged to have been shown by depositions taken for and against the same but not brought up with the record—is not a proper subject for consideration on this appeal. It is claimed, however, that the record proper presents such errors as justify the interposition of this court and require a reversal of the decree.

The first section of the act of April 1, 1834, P. L. 163, in connection with its supplements, empowers the several courts of quarter sessions, by and with the concurrence of the grand *219jury of the county, to incorporate any town or village within their respective jurisdictions, and prescribes the mode of proceeding therein. The second section provides that the petition for such incorporation shall be in writing, signed by a majority of the freeholders residing within the limits of the proposed borough, setting forth its name, style and title, with a particular description of the boundaries thereof, exhibiting the courses and distances in words at length, and accompanied with a plot or draft of the same. The next section declares the court shall cause the application to be laid before the grand jury when in session, and if a majority of said jury, after a full investigation of the case, shall find that the conditions prescribed by the act have been complied with, and shall believe it is expedient to grant the prayer of the petitioners, they shall certify the same to the court and at the next term of court the judgment of the grand jury may be confirmed ; and if the decree of the court shall be in conformity with the prayer of the petitioners the decree shall be recorded, etc. But, if the court shall deem further investigation necessary, such order shall be taken thereon as to right and justice shall appertain.

The act of April 1, 1863, provides that if “ the boundaries fixed by the petitioners shall embrace lands exclusively used for the purposes of farming, and not properly belonging to the town or village,” the proper court shall have power, at the request of the party aggrieved, “ to change and modify such boundaries so as to exclude ” such lauds therefrom. In this ease, the power thus conferred was invoked and was properly exercised by the court below.

It thus appears that the questions of compliance with the prescribed conditions, and the propriety of granting the prayer of the petitioners, etc., together with all questions of fact pertaining thereto or relating to the situation of the territory included within the limits of the proposed borough, etc., are committed to the arbitrament of the grand jury, who after a full investigation of the case are required to report their eonelusions to the quarter sessions. That court in its revision of the judgment of the grand jury is clothed with large discretionary power. It is clearly the province of the grand jury,— subject to the revisional authority and discretionary power of the quarter sessions in the premises,—to determine all ques*220tions of fact and expediency that are necessary to a valid decree of incorporation. It was never intended that any decree incorporating a borough should be disturbed by tins court, unless illegality in the proceedings is made manifest by the record, or abuse of discretion, on the part of the court below, is distinctly charged and clearly established. A careful examination of the record, as presented to us, shows that all the requirements of the act and its supplements were substantially if not strictly complied with. The application in due form was laid before the grand jury. They certified to the court that “after a full investigation of the case,” they found “ the conditions prescribed by the act of assembly .... and by other acts supplementary thereto have all been complied with,” and expressing their belief that “ it is expedient to grant the prayer of the petitioners,” they approved the application. To this judgment of the grand jury exceptions were filed, testimony was taken, hearings were had, and upon due consideration of the whole subject, the learned court passed upon the questions involved, and, with the exception of so modifying the boundary of the proposed borough as to exclude certain lands used solely for farming purposes and not properly belonging to the village, confirmed the judgment of the grand jury and entered the decree from which this appeal was.taken.

The first eight specifications of error are to the refusal of the court below to sustain appellants’ exceptions to the findings of the grand jury, recited therein respectively. The questions of fact involved in these exceptions must have been considered by the grand jury and determined by them in favor of the appellees. They were afterwards reviewed by the court and the findings of the grand jury were confirmed. As to all questions of fact, necessarily involved therein, this confirmation was evidently intended to be conclusive; and there is nothing in the record to make this case an exception to the general rule. If the action of the court in dismissing the exceptions needs any vindication, it will be found in the opinions sent up with the record. In his supplementary opinion, the learned president of the quarter sessions, referring to the eighth exception, says : “ The owners of property along the line of the turnpike may prefer a change or modification of the boundaries that will exclude them from the borough but we cannot see our way clear to *221make any sueb exclusion. Their lands are not used exclusively for farm purposes, nor can it be said that those lands ‘ do not properly belong to tbe town or village.’ Perhaps it would have been wise to include the bed of the turnpike road within tbe borough limits, but we cannot make the change at this time, certainly not without notice to the turnpike company and affording it a hearing. We may alter the boundaries to exclude farm land, but we doubt our authority to make such alterations to meet objections based upon other grounds. The fact that the turnpike is not within the borough limits, is not in our judgment such a mistake, if it be a mistake at all, as calls for the rejection of the finding of the grand jury.” In adopting the southerly line of the turnpike road as the northerly line of the borough there was no such error as would justify a reversal of the decree; nor do we think there was any error in including within the lines of the borough the other highways by which it is bounded on the remaining sides. There is nothing in the record to indicate any error in the conclusions of fact reported by the grand jury; nor does there appear to have been any abuse of the judicial discretion with which the court below is invested in such cases. Neither of the assignments of error is sustained.

Decree affirmed and appeal dismissed with costs to he paid by appellants ; and it is further ordered that tbe record be remitted for such further proceedings as may be necessary to carry the decree into effect: