Incorporation of Bor. of Edgewood

• Decision Date: 11 November 1889
• Docket Number: 22,26
• Citation: 130 Pa. 348,18 A. 646
• Parties: INCORPORATION OF THE BOR. OF EDGEWOOD
• Court: Pennsylvania Supreme Court

18 A. 646

130 Pa. 348

INCORPORATION OF THE BOR. OF EDGEWOOD

Nos. 22, 26

Supreme Court of Pennsylvania

November 11, 1889

Argued October 29, 1889 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

APPEAL BY EXCEPTANTS FROM THE COURT OF QUARTER SESSIONS OF ALLEGHENY COUNTY.

Nos 22, 26 October Term 1889, Sup. Ct.; court below, No. 13 March Term 1888, Q.S.

On March 31, 1888, the petition of residents and freeholders of the village of Edgewood, in Sterrett and Braddock townships, was presented, praying for the incorporation of the territory described by metes and bounds in the petition, and also in a plan attached, into a borough under the name of the borough of Edgewood. Accompanying the petition was proof of publication, on the 1st, 8th, 15th, 22d, and the 29th days of March, 1888, of the following notice:

"NOTICE IS HEREBY GIVEN that an application will be made to the Court of Quarter Sessions of Allegheny County, on Saturday, March 31, 1888, at ten o'clock A.M., for the incorporation of the village of Edgewood into a borough.

THURS."

On April 6, 1888, the grand jury, to whom the proceeding had been referred, reported that the conditions prescribed by the act of assembly relating thereto had been complied with, and that it was expedient to grant the prayer of the petitioners.

On June 2, 1888, exceptions were filed to the report of the grand jury, (a) by Wm. M. Watson and others, freeholders and taxable inhabitants of Braddock township, but not of the proposed borough; (b) by the School District of Braddock township; and (c) by John G. Kelly, a freeholder owning property and residing within the limits of the proposed borough. These exceptions appear fully in the opinion of the court below.

Testimony having been taken and returned by a commissioner appointed for the purpose, and hearing thereon had, on November 8, 1888, the court, MAGEE, J., filed the opinion following:

On March 31, 1888, the petition of the requisite number of the residents and freeholders of the village of Edgewood was presented to the court, asking that the said village by metes and bounds therein set forth, be incorporated into a borough by the name of the borough of Edgewood, and requesting that their said petition be laid before the grand jury for their judgment thereon. The court caused the aforesaid application to be laid before the grand jury, which upon investigation, as they say, certify to court that they believe that it is expedient to grant the prayer of the petitioners.

To this judgment of the grand jury there have been filed:

I. A remonstrance by a large number of the freeholders and taxable inhabitants of the township of Braddock, residing at the village of Swissvale and its vicinity, none of whom, however, are freeholders or taxable inhabitants of the territory proposed for the borough of Edgewood. The objections presented by the remonstrance are as follows:

1. Because the boundaries of the proposed borough include a large body of farm lands lying to the southward of said village of Edgewood, and separated therefrom by a deep wooded ravine, which is the natural boundary between the two villages of Edgewood and Swissvale.

2. Because the territory embraced in the proposed corporation includes a part of the village of Swissvale, which is a separate and distinct community from that of Edgewood.

3. Because the boundary lines of the proposed borough are so run as to inclose the large works of the Union Switch and Signal Company, situate at about the centre of the village of Swissvale, and constituting a large part of the taxable property in said village, while none of the dwellings occupied by the workmen are included within said lines; thus imposing on the School District of Braddock township the burden of schooling the children of the workmen aforesaid, while depriving it of the taxes which ought justly to go to the maintenance of its schools.

II. Exceptions by the School District of Braddock township. These exceptions are the same as those set forth in the remonstrance and given above.

III. The exceptions filed by John G. Kelly, a freeholder, owning property and residing within the limits of the proposed corporation are as follows:

1. The property of exceptant included within the boundaries of the said proposed borough is not situated in the village of Edgewood, and is separated from said village by a deep wooded ravine, which is the natural boundary between said village and the country to the southward thereof.

2. Neither the property of exceptant, nor any other property lying south of said ravine, would be in any way benefited by being brought into the proposed borough; but said property would be subjected thereby to increased burdens of taxation, without any corresponding benefits or advantages.

3. The residence and property of exceptant, and all other property lying south of the ravine aforesaid, belong properly to the community of Swissvale, which is a more populous place than the village of Edgewood, and is geographically distinct and separate therefrom.

IV. The remaining exception is filed by the counsel for exceptants, Mr. Stewart, and is technical in its character, and was filed as supplemental at the time of argument.

The exception is: That the notice given in this case of the intention to make application for the incorporation of the said village of Edgewood was not duly authenticated, there being no signature thereto of any of the petitioners or other person interested therein, or of their counsel.

The foregoing constitute the entire body of exceptions filed, and have been stated at length so that the objections taken may be clearly comprehended.

The provisions made by law for the incorporation of boroughs and the annexation of adjacent territory, are to be found in the acts of 1834, 1851, 1863 and 1871. The proceedings in the present case have been conducted thus far, with only one technical objection made, and that has reference to the published notice of the intended application for the charter; all other exceptions are to the merits of the case or appeals to discretion.

The acts referred to confer the power and prescribe the form of proceeding for the incorporation of boroughs. We need not discuss these acts or their construction. We shall only cite the first section of act of 1834 to show the jurisdiction of the court and the persons entitled to borough privileges. The 1st section of the act of 1834, P.L. 163, provides that, "the several Courts of Quarter Sessions within the commonwealth shall have power, by and with the concurrence of the grand jury of the county, to incorporate any town or village within their jurisdiction." The authority thus conferred is limited to the incorporation into boroughs of towns or villages. Unless the locality possesses the character of a town or village, no authority exists for the creation of a borough, and then only by the courts with the concurrence of the grand jury.

A village is defined to be any small assemblage of houses in the country; "a collection of houses collocated after a regular plan in regard to streets and lanes." The proposed borough is clearly such an assemblage of houses and is within proper boundaries and under the provision of law, entitled, as such village, to incorporation by the courts by and with the concurrence of the grand jury.

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Two questions, we take it, are to control the right to corporate existence, viz.: Are the village limits unduly extended, and are other village boundaries invaded?

In construing the borough law the courts have held that...