In re Incorporation of Borough of Osborne

• Decision Date: 25 October 1882
• Citation: 101 Pa. 284
• Parties: In re Incorporation of Borough of Osborne. Appeal of Rhoads et al.
• Court: Pennsylvania Supreme Court

101 Pa. 284

In re Incorporation of Borough of Osborne.

Appeal of Rhoads et al.

Supreme Court of Pennsylvania.

October 11, 1882.

October 25, 1882.

October 11th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Certiorari to the Court of Quarter Sessions of Allegheny county, at the instance of John L. Rhoads, Henry Dallmeyer, et al., exceptants and remonstrants, to remove the record in re Incorporation of the Borough of Osborne.

APPEAL of John L. Rhoads, Henry Dallmeyer, et al., from the decree of the Court of Quarter Sessions of Allegheny county incorporating the Borough of Osborne: Of October Term 1882, No. 32.

Kennedy (with him Doty and Burleigh & Harbison), for appellants and plaintiffs in error.

[SHARSWOOD, C. J. — This is not properly an appeal but only a certiorari.]

By the Act of Assembly of June 2d 1871, § 1, P. L. 283, the petition must be signed by the petitioners whose names are attached thereto within the three months immediately preceding its presentation to the court. This is essential to give the court jurisdiction and must appear affirmatively upon the record. The notice was not published in a newspaper but in a religious weekly, and was not such as is contemplated by the Act of Assembly Beecher v. Stephens, 25 Minn. 146; 22 Albany Law Journal 1; Tyler v. Bowen, 1 Pittsburgh 225.

[PAXSON, J. — How can you bring this in question? No question as to the character of the paper appears on record.]

At all events, the character of the notice was evidently such as is not within the spirit of the Act. The plain object of the petitioners was to conceal their intention to apply for a charter.

Fitzsimmons (with him Robb and Kenneth McIntosh), for appellees and defendants in error.—The attempt is made in this case to have this court sit in judgment upon the discretionary acts of the Court of Quarter Sessions as well as the Grand Jury. There is no way in which testimony or the ruling of the court touching its competency or effect, be got upon the record: Borough of Quakertown, 3 Grant 203; Borough of Sewickley, 2 Grant 136. In the absence of any other date to the petition, the date of the affidavit attached thereto should be the proper one. It cannot have date prior to the 24th of November 1880, as the first advertisement appeared in the newspaper of that day. The maxim, moreover, omnia prœsumuntur rite et solemniter esse, settles this question. The matters contained in the petition were necessary to give the court jurisdiction; that having attached, the court will not be reversed if it has thereafter erred in making the decree of incorporation: Borough of Blooming Valley, 6 P. F. Smith 69; Borough of Little Meadows, 4 Casey 258.

Mr. Justice TRUNKEY delivered the opinion of the court, October 25th 1882.

In addition to the requisites prescribed by prior statutes, the Act of June 2d 1871, P. L. 283, provides: 1. That any application for the incorporation of a borough shall be laid before the Grand Jury, at the same term of the court when presented, if convenient, and in no case later than the next subsequent term; 2. That it shall be signed by the petitioners within the three months immediately preceding its presentation; and, 3. That public notice of the intended application for a borough shall be given in at least one newspaper of the proper county, for a period of not less than thirty days immediately before the petition shall be presented.

The plain requirements of this statute cannot be evaded by any discussion respecting the necessity of its enactment. Its obvious intendment is, that persons opposed to the incorporation prayed for, shall have reasonable notice and opportunity to be heard. It is the duty of the Grand Jury to make a full investigation, not only to ascertain if the conditions of the statute have been complied with, but to...