Incorporation of Flemington Borough , 168 Pa. 628 ( 1895 )

Opinion by

Mr. Justice McCollum

The parties who complain of the exclusion of territory the inclusion of which constituted their most material objection in the court below to the incorporation of the proposed borough cannot be justly accused of an undue regard for consistency in their efforts to defeat it. There is nothing in the record which shows that they were residents of the borough as incorporated, or that any resident of it excepts to the decree of.incorporation. If therefore they have any standing to contest the decree we may fairly infer that it is as residents or taxpayers of the township affected by it. But as the township was not prejudiced by a modification of boundaries which saved to it a tract of valuable land they ought to base their attack on the decree on other grounds if any appear in the record to warrant it. We are not prepared to say that parties who opposed the inclusion of the land can object to the exclusion of it on the ground that a formal request to exclude it was not made by the owners of it. An owner who requested that his land be excluded from the proposed borough would not be allowed to attack the decree of incorporation on the ground that his request was complied with, and if in lieu of a formal request he filed a specific objection to the inclusion of it he ought not to complain that his objection was removed by the decree.

Speaking for myself, only, the authority given to the court by the act of April 1, 1863, to exclude farm land, carries with it the power to make such modification of the boundaries of the proposed borough as the exclusion of the land renders necessary for the protection of all interests concerned, and there was no misuse of this power in the case at bar.

More than four months after the grand jury reported in favor of the proposed borough, an exception was filed alleging that the day after the report was agreed upon and signed by the foreman, but before it was presented to the court, two of the jurors requested a reconsideration of the case, but did not obtain it. We discover no error in the ruling on this exception. Nor do we think any error was committed in overruling the second exception. In that it was alleged that, at the time the petition for the incorporation of the borough was submitted to the grand jury, a sufficient number of petitioners had withdrawn their names from it, by leave of court, to defeat the application. The record does not show that any of the petitioners withdrew their names from the petition or that leave was granted to them by the court to withdraw their names from it. This alone is a sufficient answer to the exception. But the exception was not supported by the evidence. An attempt was made to show that on the day the petition was laid before the grand jury a written request was presented to the court in behalf of some of the petitioners for leave to withdraw their names from the petition, on which request Judge Sittser. made the following indorsement: “ 11 May 1892 leave granted to lay the within before the grand jury.” This indorsement was not in terms or by necessary or reasonable implication leave to withdraw their names. Besides at that stage of the proceedings they had no right to withdraw them. But we need not further discuss or consider the evidence submitted in support of the exceptions. It has been duly considered and passed upon by the court below. All the jurisdictional facts appear upon the record and we find nothing in it to require us to reverse the decree. We therefore overrule the specifications.

Decree affirmed.