McFate's Appeal

105 Pa. 323 | Pa. | 1884

Mr. Justice Trunkey

delivered the opinion of the court, March 3, 1884.

By the Act of April 3,1851, the Courts of Quarter Sessions “ shall have power, as provided by law, to incorporate boroug'hs, without regard to the population thereof, which shall be subject to the provisions o'f this Act.” The mode of proceeding is prescribed by the Act of 1834, and that Act remains in force so far as it is not repugnant to, and is not altered or supplied by later enactments. If the several statutes relating to boroughs can stand together, the prior are not abrogated by the posterior. This is well settled, as shown in the opinions of the master and the learned judge of the common pleas. The3r also refer to the legislative sense made apparent by the reference to the Acts of 1834 and 1851 in the Act of June 2, 1871.

The first four sections of the Act of 1834, and the Act of 1851, are fra pari materia, and are to be construed as one enactment. The one is supplementary, and changes some of the provisions of the other. Section 4 of the Act of 1834 contains the only provision for annulling or altering the charters of boroughs. By the third section the courts are clothed with power to decree such alteration as may be needful to change the limits of a boroug'h; but this can be done only on like' proceedings as are requisite for the incorporation of a borough. The limits may be thus changed, either by enlarging or restricting, as may be expedient. By the thirtieth section of the Act of 1851 the-burgess and council are directed and required, on the petition of not less than twenty freeholders, owners of lots in any section whereon the petitioners and others reside, adjacent to the borough, to declare by ordinance the admission of said section as part of the borough. This provides for a single case, and upon no other conditions have the borough officers anything to do with changing borough limits. ' To hold that such enactment repeals a prior one which authorized the courts to decree needful alterations of borough limits, whenever expedient, would be against all precedents. Manifestly, the Acts of 1834 and. 1851 are not in all respects repugnant to each other; the later does not cover the whole subject of the earlier, nor does it contain any substitution for some of the provisions of the first. Little, if anything, can be predicated of the titles of either of these Acts in their construction, for vfhen they were enacted it was not essential that the bill be limited to one subject, clearly expressed in its title. All boroughs incorporated since the Act of 1851, by the courts, arc subject to the restrictions and possess the powers and privileges which it confers, and the proceedings, including the recording in the recorder’s office, are prescribed by the Act of 1884. It is admitted in the hilt that the borough of Cochran ton was incorporated by the court of quarter sessions on April 5, 1855, as appears by the record in the recorder’s office. Then the borough was incorporated not only under the Act of 1851, but under the Act of 1834.

The master finds that on the petition of citizens of said borough, and of T. K. Cochran, and H. H. Thompson, the same court, on November 8, 1858, made a decree enlarging the limits of the borough so as to include the lands of said Cochran and Thompson, which lands are the same now owned by the plaintiffs, and described in the third paragraph of the bill; that the clerk of the court is unable to find any record in his office either of the original incorporation of the borough or of the enlargement of its limits; and that the petition and decree for said enlargement are recorded in the recorder’s office. He further finds that said Thompson was elected school director in 1859, and said Cochran was elected a justice of the peace in 1861, in said borough; that they respectively accepted said offices; that said Thompson and Cochran resided on said lands at the date of the decree which included them within the borough, and continued to reside thereon until their removal from the county; and that they and their successors to the title to said lands recognized the authority of said borough over them until the filing of this bill. The bill was filed in 1882, and the plaintiffs deny that said lands were lawfully brought within the borough limits.

Tlio application was under the third section of the” Act of 1884. On August 10, 1858, the-grand jury approved of and recommended the prayer of the petition; on the 8th of November, then next, the decree was made, and on November 9, 1858, the petition and decree were recorded. The appellants contend that there is no evidence of the lawful enlargement of the limits. By the terms of the statute the incorporation takes effect from the date of the recording of the petition and decree in the recorder’s office. Hence that record is evidence, and it is the only evidence that can be adduced when the records of the court are lost. Here there is no other evidence of the original incorporation or enlargement of limits. The statute prescribes what matters shall be set forth in the application, and that it shall be signed by a majority of the freeholders. It ought to appear of record that a majority of the freeholders signed the petition; but it is not expressly required that this fact shall be stated therein. The grand jury should make investigation and find that all the conditions of the Act have been complied with before certifying their approval; and the court would require evidence that a majority had signed before referring the petition to the grand jury. Strong presumptions are allowed in favor of records irregularly kept, after a great lapse of time. It is presumed, under such circumstances, that courts did what the law required them to do, and that omissions were the result of carelessness or ignorance on the part of the clerks: Shaw v. Boyd, 12 Pa. St., 215. The two persons who owned all the lands the plaintiff's now own, joined in the petition. Soon after the decree was made each of them was elected to office in the borough, they and those holding under them, residing on said lands, for twenty-four years, voted, paid taxes, and exercised the rights of citizens of the borough; all the citizens of the borough during said time acted as if the decree were valid, aud now it is well “ to presume that what has been done was done of right and not of wrong.”

Decree affirmed, and appeal dismissed at costs of appellants.