In re Annexation of a Portion of Porter Township , 75 Pa. Super. 543 ( 1921 )

Opinion by

Keller, J.,

This appeal arises from the annexation by ordinance of the Borough of Jersey Shore of a portion of Porter Township upon petition of freeholders of the territory proposed to be annexed, pursuant to the provisions of sections 18 and 19 of chapter III, article I, of the General Borough Act of May 14, 1915, P. L. 312.

The act provides (chap. Ill, art. I), two methods of annexing territory'to a borough on petition of freeholders outside the borough: The first, by action of the court of quarter sessions, with the concurrence of the grand jury, (sections 9-17) ; the second, by ordinance of the borough, (sections 18 and 19). The latter course was adopted in this case. The necessary steps as fixed in the act are: (1) A petition to the borough council, signed by a majority of the freeholders of adjacent territory proposed to be annexed, asking for such annexation. (2) A valid ordinance duly passed, approved and recorded ordaining such annexation as prayed for. (3) A certified copy of the ordinance together with a description and a plot showing the courses and distances of the boundaries of the borough before and after such proposed annexation must be filed in the court of quarter sessions of the county. (4) A notice of such filing must also be filed in the office of tbe county commissioners of tbe proper county. Tbe adjustment of indebtedness between tbe borough and the township under both methods of annexation is specifically provided for by chapter IV, article I, sections 13-16, and is to be made by an auditor to be appointed by the court of quarter sessions and subject to its approval.

The annexation of adjacent territory by borough ordinance upon petition of freeholders of the territory proposed to be annexed is not a new thing. It was authorized by the General Borough Act of April 3, 1851, P. L. 320, section 30, and its amendment of July 15, 1897, P. L. 296; but was modified by the Act of June 2, 1871, P. L. 283, (section 4) and its amendment of April 6, 1899, P. L. 33, providing for publication of notice of the action of the borough authorities and an appeal therefrom to the court of quarter sessions. All of these acts were repealed by the Act of April 22,1903, P. L. 247; Washington Borough, 26 Pa. Superior Ct. 296; Donora Borough, 26 Pa. Superior Ct. 300; which, with its amendment of March 21,1907, P. L. 25, enacted, in somewhat different arrangement, practically the same provisions as are contained in the General Borough Act of 1915.

Following the judicial construction of these prior acts along the same lines, we are warranted in holding that all the requisites and precedent conditions necessary for annexation of adjacent territory by borough ordinance under the present statute must appear, with reasonable certainty, to have been complied with before such annexation becomes legal and valid: Devore’s App., 56 Pa. 163; Fister v. Kutztown Borough, 49 Pa. Superior Ct. 483.

Previous to the Act of 1915, the method sanctioned by the courts and usually adopted of testing the legality of such action of the borough authorities was by bill in equity: Devore’s App., supra; Fister v. Kutztown Borough, supra; Clairton Borough, 34 Pa. Superior Ct. 74; Pittsburgh’s App., 79 Pa. 317; but the Supreme Court held in Parkin v. New Kensington Boro., 262 Pa. 433, that a court of equity has no jurisdiction to set aside such annexation proceedings, since section 9, of chapter VII, article I, of the General Borough Act of 1915, provides a remedy by complaint in the court of quarter sessions in such a case, and this remedy is exclusive; and this notwithstanding the fact that section 9, of chapter VII, article I, of the General Borough Act of 1915, is a reenactment, word for word, of section 27, clause 2, of the Borough Act of 1851, as amended by the Act of May 22, 1883, P. L. 39, and was therefore in force and effect when the prior decisions recognizing the jurisdiction of equity in such cases were rendered; but as was pointed out by Mr. Justice Moschzisker in Whitney v. Jersey Shore Borough, 266 Pa. 537, these provisions seem not to have been construed or their effect judicially determined in this connection, though the remedy had been resorted to, inter alia, in Appeal of Borough of Chartiers, 19 W. N. C. 46; Pennsylvania R. R. Co.’s Case, 213 Pa. 373; and Carlisle & Mechanicsburg St. Ry. Co.’s App., 245 Pa. 561.

■ The relief furnished by this clause or section of the Act of 1915, must be as full and complete as could have been obtained in equity, otherwise it would not be adequate, and jurisdiction in equity having once attached would not be ousted: Johnston v. Price, 172 Pa. 427. Therefore, in proceedings consequent on such complaint, following annexation by ordinance, the court of quarter sessions may inquire, if the question is raised, whether the petition to the borough council was actually signed by a majority of the freeholders of the territory proposed to be annexed; whether the ordinance followed the petition and complied with the legal requirements as to its passage, approval and recording; and whether the other requisites relative to filing a certified copy of such ordinance, and the description and plot showing the courses and distances of the boundaries of the borough before and after such proposed annexation in the court of quarter sessions and notice of such filing given the county commissioners have been complied with. For all these matters were the subject of inquiry in a court of equity: Devore’s App., supra; Pittsburgh’s App., supra; Fister v. Kutztown Boro., supra. But, of course, it may not substitute its judgment or discretion for that of the borough authorities; it is concerned only with the legality, not the wisdom of their action: Fister v. Kutztown Boro., supra. It is essential that a liberal construction should be given this section (chapter VII, article I, section 9), with respect to a review of the legality of such annexation proceedings, for since the repeal of the Acts of 1871 and 1899, supra, no notice concerning them is required by the act to be given to persons in the territory affected thereby, and no appeal lies as to the merits, and unless there is some court where inquiry into the' legality of the proceedings can be made, such persons are in a bad way indeed.

Section 9, of chapter" VII, article I, of the Act of 1915 reads as follows: “Complaint may be made to the next court of quarter sessions, upon entering into recognizance with sufficient security to prosecute the same with effect, and for the payment of costs, by any person aggrieved in consequence of any ordinance, regulation or act done or purporting to be done in virtue of this act, and the determination and order of the court thereon shall be conclusive.”

As construed by the learned court below the language would read: “Complaint may be made by any person aggrieved to the next court of quarter sessions following any ordinance, regulation or act done or purporting to be done in virtue of this act, upon his entering into recognizance with sufficient security to prosecute the same with effect and for the payment of costs, and the determination and order of the court thereon shall be conclusive.”

We do not think they are identical. As provided in the act, complaint may be made to the next court of quarter sessions following any grievance consequent upon any ordinance, regulation or act done or purporting to be done under tbe General Borough Act, and the entry of a recognizance with security to prosecute the same with effect. A party may be aggrieved not by the passage of an ordinance, but by its attempted enforcement. It may be attempted to be enforced years after its passage upon one who was not resident in the borough when it was passed, and who is not aggrieved until such enforcement is attempted; or as here, a nonresident of the borough may have no notice, actual or constructive, of proceedings by a borough until they come to be enforced and if the remedy he formerly would have had in equity under such circumstances is denied him by reason of the fact that no steps were taken by the borough to put the proceedings into force for more than a term after the action was taken, the remedy in the quarter sessions would seem to be very inadequate. Unquestionably if the Act of 1915 had not been passed, under the decisions then in force, these appellants could have filed their bill at the time they filed this complaint, and had a court of equity pass upon the legality of these proceedings. They have not slept on their rights. Complaint was filed in the court of quarter sessions as soon as they had knowledge of the proceedings; as soon as they were aggrieved by their attempted enforcement.

This remedy by complaint in the court of quarter sessions is not limited to annexation proceedings. In Sipe v. Tarentum Borough, 263 Pa. 338, it was held that equity no longer has jurisdiction to enjoin the passage of an ordinance providing for the opening of a private roadway as a public highway, but that the aggrieved party had an adequate remedy by complaint in the court of quarter sessions. It applies, as it purports on its face, to every case where any person is aggrieved in consequence of any ordinance, regulation or act done or purporting to be done in virtue of the General Borough Act of 1915, and furnishes legal relief for every grievance resulting from a borough ordinance, regulation or act done in virtue of the Act of 1915, by reason of its illegality, oppressiveness or unreasonableness, which was formerly remediable in a court of equity. Bearing this in mind it is plain that it must be construed liberally and in such a manner as to preserve the rights which were formerly obtainable in equity.

We are of opinion that the court below erred in holding that the complaint was filed too late because it was not filed to the next term of court of quarter sessions following the filing of the certified copy of the ordinance in the court and notice thereof to the county commissioners, but was only filed to the next term following the assessment of taxes by the borough assessor and the delivery of the tax duplicate and warrant to the borough tax collector. No auditor was appointed, as called for by the act, to adjust the indebtedness between the township and borough and hence the notice required under that provision was not given.

We think the case of Whitney v. Jersey Shore Boro., supra, practically settles the question as to the acceptance by the borough of the Act of 1851; and incidentally that it supports the view here adopted, for.the opinion writer, the present Chief Justice, says: “In a case of the character of the one now before us, after the legal status of the territory embraced in the annexation proceeding is determined at law, it is hardly conceivable any further relief in equity will be called for, so far as tax levies are concerned”; since under the ruling of the court below it would be impossible ever to determine the legality of the present proceedings.

The complaint averred that the petition to the borough councils had not been signed by a majority of the freeholders of the territory proposed to be annexed. This should have been inquired into and determined by the court if the proceedings were otherwise regular and in conformity with law.

The description and plot filed in the court of quarter sessions, however, did not comply with the requirements of the act.

The act calls for both a description in writing and a plot showing the courses and distances of the boundaries of the borough before the proposed annexation and after such proposed annexation.

The description and plot filed in this case showed only the courses and distances of the tract proposed to be annexed. They did not describe, or plot, by courses and distances the boundaries of the borough either before or after the proposed annexation, and therefore were not a compliance with the plain mandate of the act.

The assignments of error are sustained, the order of the court below is reversed and the annexation proceedings filed in the court of quarter sessions subsequent to the approval of the ordinance of October 24,1918, are set aside. Costs to be paid by appellee.