In re Incorporation of Borough of Emsworth

• Decision Date: 23 July 1897
• Docket Number: 64-1897
• Citation: 5 Pa.Super. 29
• Parties: In the Matter of the Incorporation of the Borough of Emsworth
• Court: Pennsylvania Superior Court

5 Pa.Super. 29

In the Matter of the Incorporation of the Borough of Emsworth

No. 64-1897

Superior Court of Pennsylvania

July 23, 1897

Argued April 12, 1897

Appeal by Joseph T. Ritchie et al., from decree of Q. S. Allegheny Co., Dec. Sess., 1895, No. 21, incorporating the borough of Emsworth.

Petition for the incorporation of the villages of Clifton and Emsworth into a borough. Before Ewing, P. J.

On January 18, 1896, a petition was presented asking for the incorporation of the villages of Clifton and Emsworth into a borough. The court directed notice of the intended incorporation to be given as required by law. Affidavit of notice in accordance with the provisions of the Act of June 25, 1895, P. L. 389 was duly filed. A hearing was had both of petitioners and remonstrants.

On July 14, 1896, a decree was entered incorporating the borough of Emsworth, to which decree exceptions were filed on July 30 1896, and appeal taken by Joseph T. Ritchie and Thomas Barrett to the Superior Court.

Errors assigned were in making the final decree incorporating the borough of Emsworth. In not declaring the Act of Assembly of June 26, 1895, P. L. 389 unconstitutional. In holding it to be unnecessary to advertise for thirty days prior to the filing of petition that an application for a charter of incorporation would be filed, as required by the Act of Assembly of June 2, 1871, P. L. 283.

John S Robb, for appellants. -- The objections to the incorporation of the borough in this case are that the Act of June 26 1895, P. L. 389, under which this borough was incorporated, is unconstitutional. First. Because it amends sections 1 and 2 of the Act of April 1, 1834, P. L. 163, by reference to its title only and without reenacting and publishing the same at length, thereby violating the section 6, art. 3, of the constitution of Pennsylvania. Second. That notice of the intended application for incorporation of said borough was not published for thirty days prior to the filing of the petition as required by the first section of the Act of June 2, 1871, P. L. 283: Titusville Iron Works v. Oil Co., 122 Pa. 627; Barrett's Appeal, 116 Pa. 486; Donahue v. Roberts, 11 W. N.C. 186.

L. K. Porter, with him S. G. Porter, for appellee. -- The notice required by the act of 1895 clearly takes the place of the act of 1871: Springtown Borough, 17 C. C. R. 529.

The act is clearly constitutional: Tyler v. People, 8 Mich. 320; Trustees of Dartmouth College, 4 Wheat. 518.

The constitutional provision has reference to express amendments only: Stuart's Appeal, 163 Pa. 210.

Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

RICE, J.

The first question to be considered is, whether the Act of June 26, 1895, P. L. 389, entitled " An act to change the proceedings for the incorporation of boroughs," etc., repealed the provision of the first section of the Act of June 2, 1871, P. L. 283, which reads: " And public notice of the intended application for a borough charter 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 question of the repeal of statutes by implication is one of legislative intention, and all rules of construction have in view the ascertainment of that intention. One of the rules upon the subject is that a subsequent statute revising the whole subject-matter of a former statute and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former. The act of 1895 is not, strictly speaking, a revision of the laws upon the whole subject of the incorporation of boroughs. Many of the provisions of the former laws were not expressly or impliedly affected by it, and are still in force. It did, however, establish a new and different mode of procedure, and provided for notice adapted to that mode. By the earlier acts the court might, and if it could be done conveniently were bound to, cause the petition for incorporation to be laid before the grand jury at the same session it was presented. Hence the necessity for notice of the time when it would be presented; for without such notice action might be taken by the court or grand jury concerning which persons interested would have no opportunity to be heard. Speaking of the act of 1871, Mr. Justice Trunkey well said: " Its obvious intendment is, that persons opposed to the incorporation prayed for, shall have reasonable notice and an 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 determine whether it is expedient to incorporate the village described in the petition. To this end the parties have a right to be heard for and against the incorporation. Those against are not likely to be present unless notified" : Borough of Osborne, 101 Pa. 284. But by the act of 1895, the petition is not laid before the grand jury and no action affecting the rights or interests of any one can be taken until the next term after its presentation nor until after thirty days' notice has been published. Thus persons desiring to contest the matter upon any ground have full opportunity to appear and be heard at every stage of the proceedings, and every purpose of notice is accomplished. The provision was evidently intended as a substitute for the provision of the act of 1871 relative to notice so far at least as the same applies to proceedings for the incorporation of boroughs; or as the learned president of the court below well stated the proposition: " There is neither reason nor necessity for two notices. The notice required by the act of 1895 clearly takes the place of the notice of the act of 1871."

The other and more important question is, whether the act is constitutional. It provides as follows: " Sec. 1. That hereafter in any proceedings for the incorporation of a borough under the laws of this commonwealth the application for such incorporation, upon presentation to the court shall be filed with the clerk, and notice thereof shall be given in one newspaper of the proper county for a period of not less than thirty days immediately before the next regular term following the presentation of such application and the filing thereof, during which time exceptions may be filed to such application by any person interested, and the court at said term after a full investigation of the case, if it shall find that the conditions prescribed by law have been complied with, and shall believe that it is expedient to grant the prayer of the applicants shall grant the same and make a decree accordingly, and said application and decree shall be recorded in the Recorder's office of the proper county at the expense of the applicants, and shall have the same force and effect as is now given by law to the recording of the application and decree in such proceedings."

" Sec. 2. All laws or parts of laws requiring the laying of the application for the incorporation of a borough before the grand jury and its approval and certificate thereof, and inconsistent herewith, are hereby repealed."

It is argued that the act violates sec. 6 art. 3 of the constitution which reads as follows: " No law shall be revived, amended, or the provisions thereof extended or conferred by a reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length." The first section of the act of 1895...