171 Pa. Super. 642 | Pa. Super. Ct. | 1952
Lead Opinion
Opinion bx
The appellants brought a proceeding in the Court of Quarter Sessions of Allegheny County under Article
The law as to second class townships was codified by the Act of 1933, P. L. 103, “The Second Class Township Law.” It contained the provisions relating to the alteration of township lines. It did not provide for any annexation to or of another township. It was reenacted and revised by the Act of 1947, P. L. 1481, known as “The Second Class Township Code”, 53 PS §19093-101. Again there was no provision for annexation, but the section concerning alteration of township lines was retained.
The alteration of lines section was in existence prior to the enactment of any of the codes as to either class township, and was derived from the Act of 1834, P. L. 537, (repealed); the Act of 1854, P. L. 489 (repealed); and the Act of 1861, P. L. 539 (repealed). See history following 53 PS §19093-302 and following 53 PS §19092-302.
In the alteration of lines section it is not mandatory to give notice to any of the municipal authorities involved. It does not require publication of notice, but merely that the viewers give “notice to parties interested as directed by the court”; and after report filed, that the court “may . . . require such notice to be given by the petitioners to the parties interested, as it deems proper.” There is no provision for electoral vote.
In addition, the alteration of lines section provides that the court may alter the lines of a township and “any adjoining township, borough or city . . .” (Italics supplied). Yet, annexations by boroughs and cities are very fully covered by other statutes, and certainly as to them this section cannot be construed to allow such action as is attempted here.
Thus obviously the. Legislature was quite familiar with annexation and the difference between actual annexation and the alteration of a township line. In
This case is not ruled by Exeter & Northumberland Townships, 69 Pa. Superior Ct. 103. In that case this Court affirmed on the opinion of the court below, but the question involved was the ascertainment of the true line between the townships, which had been in dispute for years.
Beyond any question the instant proceedings were an attempt to make an annexation of a large part of a second class township to a first class township. We agree with the court below that a proceeding under the alteration of township lines section cannot serve as a substitute for an annexation. There can be no such annexation except by virtue of a statutory provision, —which does not exist.
The case of In the Matter of Division Line of Clay, West Cocalico, and Ephrata Townships, 33 Pa. 366 (hereinafter referred to as the Clay case), is cited as ruling the instant case under the doctrine of stare decisis. We have hereinbefore called attention to the fact that the Alteration of. Lines Statute is not a sub
Because the question of stare decisis should, with more propriety, be passed on by the Supreme Court rather than by us (Cassell’s Estate, 334 Pa. 381, 384, 6 A. 2d 60), the instant case and its companion case of Buffalo Township Lines Alteration Case, 171 Pa. Superior Ct. 653, 92 A. 2d 246, will be certified to the Supreme Court after expressing our own opinion.
The Clay ease was determined in 1859 and since then it has never been cited by either of our appellate courts, nor, as far as we can determine, by any lower court. There is thus no line of decisions such as usually exists where the doctrine of stare decisis is involved with reference to a decision of some age. There is therefore no long-established rule of law. In the Clay case the paper books, of course, are not available, but from the Reporter’s prefatory statement it seems clear- that our present question was not decided therein. In that case there were about 700 acres of land involved but only 15 voters affected. A petition was presented “for annexation.” Under the Acts of March 14, and April 24, 1857, P. L. 93, 304, an annexation had to be submitted to the voters. The court below riiléd that the two Acts of 1857 providing for a plebiscite were not applicable. On appeal the contestants raised but a single question, to wit, whether under the Acts of 1857 a plebiscite was required. No question was raised (such as in our instant cases) that the Alteration of Township Lines Statute of 1834 was inapplicable to the facts in the Clay case. The Supreme Court affirmed the lower court, holding that a concurring vote was not required. It is true that the Supreme Court said: “The present case is.-one of the . alteration of lines, though called one of'annexation, .and it.is to be decided by the
It seems highly improbable that the Legislature would provide various annexation statutes relating to townships if it intended that exactly the same thing could be effected under the Alteration of Township Lines Statute (The Second Class Township Code, 53 PS §19092-302). The doctrine contained in the dictum PS §19093-302, and The First Class Township Code, 53 of the Clay case seems to us to be outmoded by the various annexation statutes in Pennsylvania.
The order of the court below is affirmed.
The question involved is so “important as to make it expedient that the case should be decided by the Supreme Court,” and, accordingly, this ease is certified to the Supreme Court in conformity with the Act of June 24, 1895, P. L. 212, §10, 17 PS §197.
“The courts of quarter sessions may, upon the presentation of a petition, (a) alter the lines of a township and any adjoining township, borough, or city so as to suit the convenience of the inhabitants thereof; (b) cause the lines or boundaries of townships to be ascertained and established; and (c) ascertain and establish disputed lines and boundaries between two or more townships or between townships and cities or boroughs. When any such petition is presented, the court may require the petitioners to file a bond in a sufficient sum to secure the payment of all costs of the proceeding.”
If tested by The First Class Township Code, Act of 1949, P. L. 1955, 53 PS §19092-302, the same result obtains because the provisions are identical. ,
The annexation statutes usually provide a much more comprehensive procedure than in the alteration of a township line.
Dissenting Opinion
Dissenting Opinion by
I dissent from the conclusion reached by the majority in this case. The provisions of earlier acts similar to section 302 of The Second Class Township Code of May 1, 1933, P. L. 103, as amended, 53 PS §19093-302, have been construed as giving the courts of quarter sessions jurisdiction and power to grant the change of line (or annexation) sought by petitioners. In the Matter of the Division Line of Clay, West Cocalico, and Ephrata Townships, 33 Pa. 366. The Clay case, where about 700 acres of land were taken from two adjoin
Where the legislature has enacted a law which can be fairly interpreted as granting a remedy, the law should not be narrowly construed so as to render the remedy ineffective. In the Clay case, the Supreme Court construed the language of the Act as giving the courts of quarter sessions jurisdiction and authority to alter lines between townships, even though the proceeding was called “one of annexation,” and involved 700 acres. I think it is obvious that any proceeding to alter lines between adjoining townships must involve “annexation.” Any such alteration is a pro tanto annexation.
Where, in a later statute, the legislature uses language which has been the subject of prior interpretation, the presumption is that the language thus repeated is to receive like interpretation. Lower Nazareth Township Supervisors’ Appeal, 341 Pa. 171, 175,
The fact that the legislature imposed certain requirements where the annexation involved boroughs, cities and first class townships, or first class townships (Act of June 19, 1939, P. L. 430, §1 et seq., 53 PS §19092-312.1; Act of May 13, 1937, P. L. 620, 53 PS §19092-311; cf. Lerten Appeal, 168 Pa. Superior Ct. 518, 79 A. 2d 670) does not mean that these more formal requirements apply to, or are to be found in, statutes relating to second class townships. The requirements of those acts do not negate the use of The Second Class Township Code to accomplish similar objectives. Second class townships are by definition less populous than other political subdivisions; and the courts of quarter sessions should properly have the power to alter township lines without the formalities applicable under other specific legislation to the more densely populated districts. The majority seems to overlook the principles that “there is nothing sacred about the delimitation of the political divisions of a state” (In re: Annexation of Mill Creek Township, Erie County, 74 Pa. Superior Ct. 275, 278), and that the legislature may prescribe the methods for change.
When the legislature reenacted the Act of 1834 in the form of the present law, it had before it the decision in the Olay case. If it had intended to impose more stringent requirements where second class townships are involved it could have done so. In the absence of such a legislative change in the present Act, we. should accept the clear pronouncement of the Supreme Court and. give an effective remedy in the present and similar cases involving second class townships.
I am of the opinion that the present case does not come within the provisions of the Act of June 24, 1895, P. L. 212, §10, 17 PS §197, justifying certification to the Supreme Court.