Incorporation of Old Forge, 12 Pa. Super. 359

Incorporation of Old Forge

12 Pa. Super. 359 | Pa. Super. Ct. | 1900

Opinion by

W. D. Pobteb, J.,

The complaint of the first specification of error is that the petition for incorporation was not verified by affidavit. It would certainly be proper to inquire into the necessity for the verification of such a petition by affidavit, if the record presented a case in which such verification was lacking. The record shows that there were two affidavits attached to the petition in the present case; one of said affidavits set forth the total number of freeholders residing within the limits of the proposed borough, and that more than a majority of said freeholders had signed the petition, all of whom resided within the limits of the said proposed borough; the other affidavit set forth that all the persons who signed the petition for the incorporation did so subsequently to September 11, 1898. These affidavits alleged that the requisite number of resident freeholders had, within the time required by law, signed the petition. This was sufficient to invoke the jurisdiction of the court. The first specification of error is without foundation.

The second specification of error alleges that the petition was not signed by a majority of the freeholders of the incorporated district. This question was raised in the court below by an exception to the petition. A large amount of testimony was taken and the court, after careful consideration, overruled the exception, filing an opinion which the appellants have not printed. This was a determination of the question of fact *362adversely to the contention of the appellants. The record shows no error in this disposition of the question, and we must accept the conclusion. The court, upon petition, under the Act of April 1, 1863, P. L. 200, excluded certain lands of the Delaware, Lackawanna & Western Railroad Company from the borough, which action is the subject of the third specification of error. The court found that the land in question was used exclusively for purposes of farming, and did not belong to the village. This was a matter in which the law invested the court with discretion to determine all questions of fact and expediency. This court will not reverse the conclusion reached, unless for an abuse of discretion distinctly charged and clearly established, or for error appearing upon the face of the record proper. We cannot consider the evidence, and the record discloses no error in the exclusion of the lands. The third assignment of error cannot stand.

The court found “that the conditions prescribed by law have been fully complied with, and that it is expedient to grant the prayer of the petitioners.” This was almost a literal compliance with the provisions of the Act of June 26,1895, P. L. 389, and was all that was required. The fourth specification of error is dismissed. The record shows a plot or draft of the proposed borough attached to the petition, and the fifth specification of error must have been filed inadvertently.

A number of the petitioners, who had invoked the jurisdiction of the court and set in motion the machinery of the law for the incorporation of the borough, subsequently discovered that they could not control the court, in the exercise of its discretion, in passing upon the petition of the Delaware, Lackawanna and Western Railroad Company for the exclusion of farm laud. Said petitioners then signed a remonstrance against the incorporation. The court in determining whether the original petition had been signed by the required number of freeholders, counted as signers these parties who had signed but changed their minds when the proceeding was almost finished. Petitioners cannot thus play fast and loose with the court, joining with others to make up the number necessary to confer jurisdiction, and then threaten to deprive the court of jurisdiction, by withdrawing, if all collateral questions are not decided as they suggest : Flemington Borough, 168 Pa. 628. The sixth specification *363of error has no merit whatever. None of the remaining specifications are worthy of consideration. The assignments of error are all dismissed.

Decree affirmed and appeal dismissed at costs of appellants.