In re Incorporation of Borough of Osborne. Appeal of Rhoads et al.

Supreme Court of Pennsylvania1882-10-25

101 Pa. 284

Summary · law.co

Holding. The court reversed the decree and set aside the proceedings for the Borough of Osborne because the petition record failed to show when signatures were obtained and the public notice was defective for omitting the date and place of presentation. Additionally, the court quashed the appeal brought by Rhoads and others on the ground that an appeal does not lie from a Quarter Sessions decree in incorporation matters.

The court reviewed the incorporation proceedings for the Borough of Osborne and found critical deficiencies in how statutory requirements were satisfied. The Act of 1871 mandated three essential conditions: the application must be presented to the Grand Jury within a specified timeframe, it must be signed by petitioners within three months before presentation, and public notice must be published in a newspaper for at least thirty days before the petition is submitted. The statute's purpose is to ensure that those opposed to incorporation receive reasonable notice and an opportunity to be heard.

The petition's record failed to establish when signatures were obtained and contained no evidence that proper public notice was given. The notice on file lacked critical information—specifically, it did not state the date or location where the petition would be presented to the court. The court emphasized that legal notice of a proceeding must inform parties of both the time and place of the hearing. Because the statutory requirements were not met, the incorporation proceedings were defective.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Compliance with statutory publication and notice requirements for borough incorporation
Adequacy of public notice content in incorporation proceedings
Documentation of petition signatures and timing in the record
Appellability of Quarter Sessions decisions in incorporation cases

Procedural posture

The case was appealed from a decree of the Quarter Sessions of Allegheny County granting incorporation of the Borough of Osborne.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

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 J ury, 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 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. And for their convenience delay in submitting the application to the Grand Jury is prohibited. Personal notice to the residents within the limits of the proposed corporation is not required, and as some may learn of a petition who would not of a notice in a newspaper which they do not read, the petition shall not be received by the court unless signed within three months of its presentation. Its circulation for signatures of a majority of the resident freeholders, is likely to become generally known in the village, and, therefore, it must be presented within the limit or the residents may consider it abandoned.

This record fails to show when the names attached to the petition were signed, or that public notice was given. These omissions are as fatal as would be any other omission of an essential to the affirmative action of the court. The Act of 1834 provides that the application shall be signed by a majority of the freeholders residing within the limits of the town or village to be incorporated. That the application was so signed must appear on the record, to show jurisdiction in the Court of Quarter Sessions: Borough of Little Meadows, 28 Pa. St. 256. On the date of the filing of this petition an affidavit was appended setting forth that a majority of the freeholders, resident within the limits, had signed; it would have been easy to have stated within what time the names had been attached.

The petitioners allege that public notice was given, which appears of record. This alleged notice, signed by the attorney for. the petitioners, is without date, and is in these words: “Notice is hereby given that it is intended to apply for a borough charter for part of Aleppo Tp., Allegheny Co., Pa., to be called the Borough of Osborne.” True, this is notice of an intended application. But it gives no information of the time and place, when and where the petition shall be presented. When a party is entitled to notice that he may appear to answer in a legal proceeding, it shall inform him of the day and place. Even if the place could be omitted on the ground that every man is presumed to know the forum of such proceeding, the day could not. The statute intends notice to the residents of the village when and where the petitioners intend to apply for a borough charter. The exceptants were, not in court until after the action of the Grand Jury, and they can avail of any defect in the record.

Order and decree reversed, and the proceedings set aside.

Appeals of Rhoads and others.

Appeal from the decree of the Quarter Sessions of Allegheny county.

Trunket, J. — The statutes vest the discretion in the Grand Jury and Court of Quarter Sessions, to determine all questions of fact, and expediency, in a proceeding to incorporate a town or village. An appeal does not lie from the decree of the Quarter Sessions.

Appeal quashed.