In re North Whitehall Township

• Decision Date: 02 April 1864
• Parties: In the matter of the division of North Whitehall Township.
• Court: Pennsylvania Supreme Court

Page 156

47 Pa. 156

In the matter of the division of North Whitehall Township.

Supreme Court of Pennsylvania.

April 2, 1864.

CERTIORARI to the Quarter Sessions of Lehigh county.

Marx & Runk, for appellant.—1. The question simply is, whether nineteen days is three weeks' notice, or, in other words, whether nineteen days are equal to twenty-one days. Such a decision does not fall far short of an abuse of the privilege which a court has to interpret its own rules. It is not even a question of interpretation of a rule of court, but rather as to the signification of the English words "three weeks," which clearly mean twenty-one days. As the order was not that notice should be given "during three successive weeks," but "three weeks before" the meeting, we aver, that had the notice been inserted in one English and one German newspaper, published in Lehigh county, but once, twenty-one days before the meeting, this would have been in strict compliance with the order of court; and if this position be tenable, it follows, as a corollary, that any number of insertions in such papers inside of twenty-one days immediately preceding the meeting, would not have been sufficient. Had even the order been, that the notice should be given "once a week during three successive weeks previous," &c., which is the language of the Act of Assembly regulating the publications of sheriffs' sales, three full weeks' notice would have been necessary. See Francis v. Norris, 2 M. 151; Wallace's Estate, 7 Pittsburgh Leg. Int. 401; Early v. Doe ex d. Homans, 16 Howard 610. Williams v. Moore, Phila. District Court, May 26th 1849, reported in Troubat & Haly's Practice, vol. 1, p. 807, which seems to be based chiefly upon Stover's Appeal, 3 W. & S. 157, and Bachelor v. Bachelor, 1 Mass. 256, decides only that it is not necessary that there should be an interval of just one week between each publication, but that an insertion each week is in compliance with a direction that the publications be successive. But whatever may be the construction upon the statute referred to, the order of the court in this case is in such marked contrast with the phraseology used in the statute, that a construction of the one can have no bearing on the other.

It may be argued that the court below is the only proper judge of its own rules; but the contrary is expressly held in Reintzheimer v. Bush, 2 Barr 88; Hudson v. Reel, 5 Id. 279; Ankrim v. Sturges, 9 Id. 275 2. Section 1, Act of 14th of March 1857, Purd. Dig., p. 204, pl. 19, provides that "in proceedings to divide any township in this Commonwealth, it shall be the duty of the Court of Quarter Sessions of the proper county, when a return has been made by commissioners appointed under the provisions of the act to which this is a supplement, favourable to a division, to order a vote of the qualified electors of said township to be taken on the question of a division thereof," and section 2 of the same act further directs "that it shall be the duty of the said courts, upon the return being made to them as aforesaid, to fix a day certain upon which the election officers of the township proposed to be divided shall hold an election," &c. Neither of these directions were complied with in this case, and the omission is fatal to the proceedings. This principle is laid down in Road Case, 3 W. & S. 559, in which it is held that the omission of the Court of Quarter Sessions to fix the width of a public road is fatal to the proceedings, and that the fixing of the width is an act to be done at the time when report is confirmed. On the same point we cite Road Case, 4 W. & S. 39, Pitt Township Road, 1 Barr 356, and Norriton and Whitpain Road, 4 Id. 337.

S. A. Bridges, for appellees.—1. The order as to notice was substantially complied with. It is true, that the first publication of the notice was on the 7th of May 1862, and the time of meeting was on the 26th of the same month. In a case like the present the law knows no fractions of a day. If not, the 7th of May was the first, and one day's notice, if we are right in including this day in calculating the number of days.

See 3 Durnford & East's Rep. 333, top paging, Castle et al. v. Burditt et al., 5 Harris 48, Barber v. Chandler, under which we claim the right of including the seventh day in calculating the time. Have we a right also to include the 26th, the day of meeting? The counsel for appellant admits it in the calculation contained in his argument. Starting out, then, with the 7th and 26th inclusive, we have twenty days instead of nineteen. Was it necessary for any purpose whatever in this case to advertise another day? Was not the order substantially complied with by three insertions in the newspapers in the three weeks prior to the time of meeting? May not the present case be likened to sheriffs' sales, the statute requiring notice "once a week during three successive weeks previous to such day of sale"? 1 Troubat & Haly 795. Is the Act of 1836 less imperative to advertise for twenty-one days, than the order of the court in this case? Are not the words "during three successive weeks," as strong as the words "three weeks' notice"? In the case of Williams v. Moore, referred to in 1 Troubat & Haly 807, which overrules Francis v. Morris, cited by appellant, it has been so decided.

The case of Bachelor v. Bachelor, 1 Mass. 256, is in point. There an order was made by the court that a certain notice should be published in a newspaper specified three weeks successively. The notice was inserted in the paper, which was issued from the press twice a week; first in the paper of Saturday, June 30th, second, Saturday, July 7th, and third, Wednesday, July 11th. And it was held that the order had been substantially complied with. See also Stoever's Appeal, 3 W. & S. 154.

Even the exceptant does not complain of the want of notice. It is not in his exceptions, that he did not know of the time and place of meeting of the commissioners; for he did know it, as was proved by one of the commissioners. The associate judges, who made the order and decided the question, knew what the order meant, and their construction should be respected. See Umberger v. Gearing, 8 S. & R. 163; Alexander v. Alexander, 5 Barr 278; Ankrim v. Sturges, 9 Id. 275; Erwin v. Leipert, 5 W. & S. 105. The associate judges are capable of giving a just construction to their own rules and own orders, of knowing what the practice has been in their court in relation to the publication of their orders, and also of knowing...