In re Irwin Borough Annexation Case (No. 1)
| Decision Date | 15 July 1949 |
| Docket Number | 1242 |
| Citation | 67 A.2d 757,165 Pa.Super. 119 |
| Parties | Irwin Borough Annexation Case (No. 1) |
| Court | Pennsylvania Superior Court |
Argued April 19, 1949.
Appeals, Nos. 60 and 61, April T., 1949, from decree of Court of Quarter Sessions of Westmoreland County, Feb. T., 1948 No. 9, in re Annexation by the Borough of Irwin of adjacent land in North Huntingdon Township adjoining the Borough of Irwin on the East. Affirmed.
Proceeding upon complaint against annexation ordinance.
Order entered holding ordinance invalid, before Laird, P. J McWherter and Bauer, JJ., opinion by Laird, P. J., dissenting opinion by McWherter, J. Borough, and Borough School District, respectively, appealed.
Elder W. Marshall, with him Carroll Caruthers and Louis E. Sensenich, for appellants.
Robert W. Smith, with him Scott Fink, Smith, Best & Horn, Fink & Jennings, and Max M. Bergad, for appellees.
OPINION
By an ordinance adopted on February 20, 1948 the Borough of Irwin annexed adjacent land in North Huntingdon Township. The township and its school district filed a complaint alleging that the ordinance was void for reasons stated. The court below, one judge dissenting, sustained the complaint, and declared the ordinance "illegal and void and the proposed annexation . . . illadvised and improper." The borough and the school district of the borough appealed.
Annexation to a borough of adjacent territory situate in a second class township upon the petition of freeholders to the council is regulated by The General Borough Act of May 4, 1927, P. L. 519, as revised and amended by The Borough Code of July 10, 1947, P. L. 1621, 53 PS § 12221 et seq. It provides, so far as here pertinent, that a Id. § 425, [1] 53 PS § 12461. It requires: "A certified copy of any ordinance, adopted together with a description, and plot showing the courses and distances of the boundaries of the borough before and after such proposed annexation, shall be filed in the court of quarter sessions of the county . . . [and] Thereupon the territory proposed to be annexed shall be a part of the borough . . ." Id. § 426, 53 PS § 12462.
Provision is made for challenging an annexation ordinance by complaint filed in the court of quarter sessions, "and the determination and order of the court thereon shall be conclusive." The Code also provides: "In cases of ordinances effecting annexation of territory . . . the court shall have jurisdiction to review the propriety as well as the legality of the ordinance." Id. § 1010, 53 PS § 12900.
I. Scope of Review. Notwithstanding the provision in § 1010, supra, declaring the determination of the court below conclusive, the case is here on a broad certiorari and, in addition to adjudicating the jurisdiction of the court below and the regularity of its proceedings, we examine the testimony which was made a part of the record by the Act of April 18, 1919, P. L. 72, 12 PS § 1165. In Re Appeal of Bender, 106 Pa.Super. 376, 163 A. 47; Warner Bros. Theatres, Inc., v. Pottstown Borough, 164 Pa.Super. 91, 63 A.2d 101.
However, we do not weigh the evidence, resolve its conflicts, or pass upon the credibility of the witnesses. The findings of fact by the court below will not be disturbed if our examination of the testimony shows that they are supported by competent evidence. Walker's Appeal, 294 Pa. 385, 144 A. 288; Bangor Electric Company's Petition, 295 Pa. 228, 145 A. 128; Hand's Case, 266 Pa. 277, 109 A. 692; Union National Bank of Pittsburgh v. Crump, 349 Pa. 339, 37 A.2d 733; Anderle Appeal, 350 Pa. 589, 39 A.2d 829; Elkland Leather Workers' Assn., Inc., 330 Pa. 78, 198 A. 13.
The presumption is that the acts of public officers are regular, and the presumption attaches to annexation proceedings. Mountainville Election District's Annexation, 304 Pa. 559, 156 A. 162. But the presumption is only a procedural expedient, Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644, and its function is merely to establish a prima facie case of regularity which is overcome by proof to the contrary. Beacom v. Robison, 157 Pa.Super. 515, 43 A.2d 640. But see Hill v. Alexander, 338 Pa. 26, 11 A.2d 884; Altoona City v. Bowman, 171 Pa. 307, 33 A. 187; and comments, 9 Wigmore on Evidence, § 2534.
II. Automatic Dismissal of Complaint. The complaint was originally called for a hearing before Judge McWherter, who requested President Judge Laird to sit with him. They were unable to agree, and no order was entered. Appellants argue that "The divided opinion of the two judges who first heard the case left the annexation proceeding in full force and effect and automatically worked a dismissal of the complaint." This is based upon the familiar rule that a tie vote in a tribunal amounts to the refusal of the pending motion or to a dismissal of a complaint. See Pa. Publications, Inc., v. P. U. C., 152 Pa.Super. 279, 32 A.2d 40; Summers v. Kramer, 271 Pa. 189, 114 A. 525; First Congressional District Election, 295 Pa. 1, 144 A. 735.
The rule does not apply here. The two judges did not constitute the court en banc, or sit as the court en banc. In Westmoreland County there are three judges in the quarter sessions court. The court en banc sits on days specifically fixed by its rules, and the hearing was not held on one of the designated days. The complaint raised a question relating to vital interests of the community, and the court en banc was the proper tribunal to consider and decide it. Kensington Club Liquor License, 164 Pa.Super. 401, 65 A.2d 428, and cases therein cited. By order of President Judge Laird, after the two hearing judges had disagreed, the case was set down for argument before the court en banc, was heard by three judges, and the order from which this appeal was taken was entered by that court. Even if the two judges had sat en banc they would have been justified in calling the third judge to break their deadlock. Summers v. Kramer, supra.
Moreover, appellants never claimed in the court below that the complaint had been dismissed by the tie vote of the hearing judges. If that was their position they should have formally excepted to the order setting the case down for argument before the court en banc. In their brief they state that they protested at the argument before the court en banc and there argued that the earlier division of the judges resulted in a dismissal of the complaint. This is denied by appellees. Howbeit, appellants were represented by able and experienced counsel who knew how to place objections on the record for the scrutiny of an appellate court. Apart from the failure to raise the question below, there is no merit in the contention. The case called for action by the whole tribunal and was referred to and decided by it. [2]
III. Map and Description. The central controversy relates to the accuracy of the description of the annexed land as contained in the ordinance and the accompanying plot. The ordinance is the legislative act by which annexation is effected; the description is the verbal delineation of the boundaries; the plot is the graphic representation of the description; both must be correct and correspond with each other. The office of the description and plot is to furnish means whereby the annexed land and the boundaries of the borough can be identified. Minor discrepancies may be disregarded, Mountainville Election District's Annexation, supra, but the description and the plot must together definitely fix the boundaries with reasonable certainty. North Braddock Borough's Annexation Case, 126 Pa.Super. 53, 190 A. 357. Appellants intimate that only the freeholders of the annexed territory are interested in a correct description. Residents and voters are also vitally concerned; assessing and taxing authorities, the courts and justices of the peace, county officials, and many State departments (e. g., Highways, Health, Public Instruction) require precise information of the exact boundaries of political subdivisions. Boundaries should be definitely settled at the beginning for many reasons, and not the least is the avoidance of expensive future litigation. See North Braddock Borough's Boundary Case, 126 Pa.Super. 25, 190 A. 350.
1. The court found, and appellants admit, that the map is not a correct representation of the description in the ordinance. The engineer drew a line described as "N. 42 degrees 01' West 210 feet" on the map and no such course appears in the description. No explanation of this error was offered to the court below. Here it is characterized as "simply a mistake on the part of the draftsman" and appellants suggest that "in the interest of accuracy, a corrected plot should be filed from which the interpolated line has been deleted." Obviously mere deletion of the line will produce a gap of 210 feet in the boundaries, and the amended map would not show a tract of land within closed boundaries. If the ordained description were correct, leave might be granted to file a map to accord with the description. But, as will be shown, the ordinance-description is also inaccurate and the line was interpolated precisely at the point where a draft of the ordained description discloses a break even greater than 210 feet. It is difficult to avoid the suspicion that the draftsman discovered that the description was so inaccurate that it could not be portrayed upon a map, and that he sought to cover the error by the interpolated line. At all events, appellants' admission destroys the presumption of regularity so far as...
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