Borough of Blooming Valley , 56 Pa. 66 ( 1867 )

The opinion of the court was delivered, November 4th 1867, by

Agnew, J.

Since the decision in the case of the Borough of West Philadelphia, 5 W. & S. 281, the legislation upon the subject of incorporating- boroughs has undergone marked change. A chief objection in that case was that none of the four villages within the boundaries proposed, excepting the village of West Philadelphia, contained three hundred inhabitants, and it did not appear that a majority of the inhabitants of any one of them had petitioned for the incorporation.

The spirit if not the letter of the law, as it then stood, discountenanced the kneading together of villages and plain into a. single batch ; or that one large town should thus swallow up its minor neighbors and the intervening farm land. But.the 21st section of the Act of 3d April 1851, relating to boroughs, provides for incorporation without regard to the number of the population, and the 30th enables the burgess and council of a borough, on the petition of twenty freehold owners of lots, outlots or other tracts of land in any adjacent section, to declare by ordinance the admission of such section into the borough. With this expression of legislative intent before it, no court would refuse a charter merely because adjacent farming lands were embraced, the owners of which united in the petition, when it is in their power to be admitted by the mere ordinance of the borough authorities, immediately after the' charter shall have been granted by the court. Then came the Act of 1863, recognising this power as existing in the court, by authorizing it upon an application for incorporation, if the boundaries embrace lands exclusively used for the purpose of farming, and not properly belonging to a town or village, to modify and change such boundaries at the request of the parties aggrieved, so as to exclude such land. These acts clearly show the legislative intent, that the extent and character of the land are not yer se controlling objections if the parties to be affected are willing to be included. A court should, however, always exercise a sound discretion in these respects. The principle upon which the case of the Borough of Sewickley, 12 Casey 80, was decided coincides directly with this view.

The case of the Borough of Little Meadows was decided before the passage of the Act of 1863, and without any apparent reference to the provision in the Act of 1851, for the admission of adjacent sections. In that case the exceptions inform us also that there was no substantial town or village within the limits of the proposed charter, the territory being composed of several, entire farms with no buildings but farm-houses, while the nucleus which was to attract together this thin and unsubstantial train' contained only a small store and church, and no persons pursuing the mechanic arts. In this case we have a numerous collection of houses, extending' along a state road almost to the utmost limits, and those living outside of this collocation unite in the petition and desire the charter. The objections coming wholly from without, we perceive no abuse of sound discretion in the court below which can enable us to review the action of the court upon a certiorari.

Proceedings affirmed.