208 Pa. Super. 62 | Pa. Super. Ct. | 1966
Opinion by
This case involves one major and two subordinate issues. The annexation petition to the borough council specifically stated that it was filed pursuant to art. IY, §425 of The Borough Code (Act of May 4, 1927, P. L. 519, 53 PS §45425), and the proceedings followed the requirements of that act. The appellants contend that these provisions were repealed by implication by the Act of July 20, 1953, P. L. 550, 53 PS §67501 et seq., and that therefore the annexation ordinance ivas invalid.
The question of whether the Act of 1953 repealed by implication other statutory provisions regarding annexation of territory has been raised in three cases before the Supreme Court
Since this case arose in the court below by an appeal from the enactment of an ordinance and since §1010 of The Borough Code, 53 PS §46010, provides
We start with the general principle that the repeal of a statute by implication is not favored and that there must be an irreconcilable repugnancy between the two acts before it can be held that the second statute repealed the former by implication and that in such a situation the question is exclusively one of legislative intent: Kelly v. Phila., 382 Pa. 459, 115 A. 2d 238; George v. Moore, 394 Pa. 419, 147 A. 2d 148; First National Bank of Millville v. Horwatt, 192 Pa. Superior Ct. 581, 162 A. 2d 60.
In Parisi v. Phila. Zoning Board of Adjustment, 393 Pa. 458, 143 A. 2d 360, it was said, at page 462: “The Board’s contention is confronted by the further barrier that implied repeals are not favored by the law: Scott v. Bell, 344 Pa. 243, 246, 25 A. 2d 308, and H. C. Frick Coke Company Appeal, 352 Pa. 269, 274, 42 A. 2d 532. Of course, that does not mean that the additional obstacle cited is insurmountable in all instances. There may, indeed, be an implied repeal of a legislative enactment. But it can arise only where the language used in the later statute necessarily discloses an irreconcilable repugnancy between its provisions and those of the earlier statute so inconsistent as not to admit of any fair consonant construction of the two. In Scott v. Bell, supra, we quoted with approval from Endlich on Interpretation of Statutes, §210, as follows: ‘ “In order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it the effect of repealing it, the impli
The Borough Code, §§425 and 426, 53 PS §§45425-45426, provides for annexation by ordinance upon petition signed by a majority in number of the freeholders of the territory to be annexed. The ordinance, once adopted, is to be filed with the court of quarter sessions, together with a description and a plot of the borough both before and after the proposed annexation. Notice of filing is to be filed in the office of the board of elections.
The procedure under the Act of 1953, P. L. 550, 53 PS §§67501-67508, is more complex. The first step is presentation to the borough of a petition signed by a majority of the freeholders in the territory involved requesting annexation, accompanied by a fee of $150 and a certification that, prior to the presentation to the borough, a copy of the petition, without signatures, was filed with the supervisors of the township concerned. The petition is then submitted for approval of the council (presumably by ordinance) and certified to the court of quarter sessions. If no aggrieved person, within 30 days of the certification to the court, files a complaint asking for the appointment of a board of commissioners, the court determines if the proceedings were legal and the annexation proper. If it is satisfied, it affirms the annexation. If a complaint is made, however, the court, after making the same review of legality and propriety and being satisfied of both, must ap
We do not believe that the two acts are irreconcilably repugnant, particularly in the light of the Act of May 18, 1933, P. L. 818, amending §1010 of The Borough Code by giving the court the right to consider the propriety of the ordinance as well as the legality thereof.
The legislature has never been consistent in its treatment of annexation. Mr. Justice Cohen in his opinion in Palmer Township Annexation Case, 416 Pa. 163, 204 A. 2d 760, summarized many of the statutes which have dealt with the subject. The various acts which were in force in 1950 are set forth in an excellent article in 11 Pitts. L. R. 446,
The same situation arose in Snyder’s Appeal, 302 Pa. 259, 153 A. 436. There it was held that the Act of April 28, 1903, P. L. 332 (which was similar to the Act of 1953), did not repeal by implication the Act of June 8, 1874, P. L. 279 (which was similar to The Borough Code). This time the Court set forth its reasons. It said: “If the Act of 1903, supra, is to be held exclusive, it must be determined that it impliedly repealed the Act of 1874, supra,—a legal conclusion not favored, and reached only when necessity imperatively requires it: Com. ex rel. v. Ruggles, 280 Pa. 568. The respective plans for securing annexation, provided by the two statutes in question, are different both in the manner of instituting the proceeding and in the steps to be followed thereafter. Under the later legislation, a vote is directed to be had if the regularity of the acts taken to secure the joinder is preliminarily approved by the court,—a requirement not appearing in the Act of 1874. Legislation of this character might properly di
“A subsequent act of assembly, evidently intended as a revision of the whole subject-matter of prior legislation, and a substitute therefor, though it contains no express words so declaring, must, on general principles of law as well as in reason and common sense, operate to set aside the former: Com. v. Curry, 285 Pa. 289; Jefferson Co. v. Rose Twp., 283 Pa. 126. If the new statute indicates a purpose to revise and abolish that formerly in force, although no language to that effect is found therein, the first is repealed: Murdoch v. Biery, 269 Pa. 577; Hammond v. Aluminum Co., 261 Pa. 370. But the purpose to formulate an entirely new system in place of the one theretofore existing must clearly appear before earlier legislation, dealing with the like subject, can be declared to be no longer operative: Graham v. Phila., 288 Pa. 152; Sheraden Boro.’s Case, 34 Pa. Superior Ct. 639. A comparison of the two acts now in question fails to show an intention to supplant that of 1874 by the one passed in 1903, which provides a different and alternative method of procedure, without express repeal of the former by the latter, and we cannot say that it impliedly has that effect.” See also Sheraden Borough, 34 Pa. Superior Ct. 639, where we held that the Act of April 28, 1903,
We feel that the present situation is controlled by the foregoing cases. If we were to have any doubt on the subject, it would be dispelled by the fact that at its last session the legislature enacted a new Borough Code (Act No. 581 of the 1965 session, effective January 1, 1966) in which §§425 and 426 renumbered 426 and 427) of the Code of 1927 are re-enacted almost verbatim. This is most surely an indication that the legislature did not intend the Act of July 20, 1953, P. L. 550, to act as an implied repeal of the provisions of the old Borough Code, and especially §§425 and 426 thereof. See Harr v. Boucher, 142 Pa. Superior Ct. 114, 15 A. 2d 699.
We are well aware that in Hazle Township Annexation Case, 183 Pa. Superior Ct. 212, 130 A. 2d 230, we said: “The character and scope of an appeal from an annexation ordinance have been changed and enlarged by the Act of 1953. Before it was enacted the proceedings in a case such as this would arise by an appeal from the annexation ordinance. The Borough Code, regulating an appeal from an annexation ordinance,
The appellants also contend that the annexation petition was not signed by the requisite number of persons and that the annexation ordinance did not serve the public interest. These questions were for the court below and since The Borough Code provided that its decision was conclusive, our review is limited to ascertaining whether there is any evidence to support its findings: West Mead Township Annexation Case, supra. An examination of the record and the opinion of Judge Lansberry showed that he gave thoughtful consideration to all the factors involved. There was ample evidence to support the determination of the court below and it did not abuse its discretion in concluding that this annexation was in the public interest.
Order affirmed.
West Conshohocken Borough Appeal, 405 Pa. 150, 173 A. 2d 461; Carnegie Borough Annexation Case, 408 Pa. 146, 182 A. 2d 527; Palmer Township Annexation Case, 416 Pa. 163, 204 A. 2d 760.
West Mead Township Annexation Case, 206 Pa. Superior Ct. 166, 213 A. 2d 124.
Annexation by Units of Local Government—The Pennsylvania Problem, by Herbert N. Rosenberg and Donald I. Moritz.