Brown v. Fowzer

Mr. Justice Green

delivered the opinion of the Court,

In the case In re Harrison Twp., 5 Barr, 447, which was a proceeding for the erection of a new township under the Act of 15th April, 1834, wé said, on p. 450, Rogers, J., “The first duty that the commissioners have to perform is to inquire into ■the propriety of granting the prayer of the petitioners, whether it be a prayer for the creating a new township, or ascertaining and establishing the lines or boundaries of a township, and to report to the court their opinion of the same, that the court may.take such order thereupon, as to them may appear just and reasonable. B

It seems therefore, that the order of the court, which is the authority to the commissioners in the performance of their duty, should contain an explicit direction to that effect, and that the renort should contain an equally explicit opinion as to the expediency or propriety of granting the prayer of.the petitioners. If the proceedings be defective in either particular, it is an error for which the whole must be set aside.” This was followed in a precisely similar case under the same Act, In re division of Plumb Township, 2 Norr, 73, in which it was said, Sharswood, J., “ It has been settled in a series of cases decided by this court upon the construction of this Act, that the order of the court appointing the commissioners, which is their authority for acting, must contain an explicit direction to them, according to the express terms of the law, “ to inquire into the propriety of granting the prayer of the petitioners.” Because the order in that case did not contain such a direction, the order was reversed and proceedings quashed.

The present case arises under the Act of May 14th, 1874, providing for the “dividing any boroughs into wards, of erecting one or more new wards out of parts of two or more adjoining wards, of dividing any wards already erected into two or more wards, of altering the lines of any wards or ascertaining the lines or boundaries of any ward or wards.” This latter Act is practically a mere copy of the Act of 1834, relating to townships, in all its requirements as to the proceedings. It contains'in identical words the direction to appoint three commissioners “ to inquire into the propriety of granting the prayer of the petition.” The decisions under the Act of 1834 are therefore directly pertinent in cases arising under the Act of 1874. The order to the commissioners in the case at bar contained no direction to them to inquire into the propriety of granting the prayer of the petitioners, nor any equivalent for it, and it is therefore fatally defective under the rulings in the cases cited. We think in all proceedings of this nature, directed by statute, the requirements of the statute ought to be strictly complied with. We must assume they are exacted for proper purposes, and a decent respect for the law-making power demands a close conformity to their terms. It is no hardship upon petitioners to require them to observe-the necessary formalities in their proceedings, and a very moderate degree of care on the part of the persons who prepare the papers, and conduct the business in the courts, will always suffice to prevent the embarrassment which result from a disregard of the provisions'of the law in these respects.

We think also, though the Act is silent upon the subject, that proper notice of the proceedings should be directed by the court on the filing of the petition, and the character of the notice to be given should be embodied in the order. The report should certify specifically what notice was given, so that it may appear on the face of the proceeding that the order of the court has been complied with. The powers conferred by the Act are of a public and an important character, and all parties interested ought to have an opportunity to be heard, and such opportunity can best be obtained by an adequate notice so given as to reach most effectively the various parties to be affected.

Upon this subject the cases of Independent Dist. No. 8 & 9 Cas., 297, and Wilkins Township School District, 20 P. F. S., 108 are quite in point. In the first of these, which was a proceeding to form an independent school district, Strong, J., said: “The Act does not indeed require, in express terms, that the commissioners shall give notice of the time and place, when and where they will proceed to inquire into the expediency of establishing the new municipal division. But the public interests as well as justice to individuals, so obviously require that such notice should be given, that it has always been held that the want of it is fatal to the proceedings.” See also Clearfield Independent School District, 29 P. F. S., 419. In the present case it does not appear that any defined notice was ordered to be given, and the report merely certifies that one public notice was given without describing the notice or how it was given.

Decree reversed, and proceedings quashed;