Turtle Creek Borough , 65 Pa. Super. 48 ( 1916 )

Opinion by

Williams, J.,

This was a proceeding to change the name of a borough. A petition, dated March 25, 1915, signed by two-thirds of the taxables thereof, was presented June 17, 1915, to the Court of Quarter Sessions, when an order was made directing publication of notice for thirty days. September 11, 1915, proof of the publication was filed, when the court directed inquiry to be made by the grand. jury. This hearing was had October 11, 1915, on the petition together with the petitions of two other boroughs, each asking for the same name. The same day the grand jury reported as follows: “And now, to wit, October 11th, 1915, we, the grand jury do concur in the petition in the above entitled case and do recommend that the corporate name of the said borough be changed to the Borough of Westinghouse.” Exceptions were filed that it would be inexpedient to change only the name of the Borough of Turtle Creek. The court, after hearing, quashed the proceedings on the ground that the statutory requirements had not been complied with and that the record was, therefore, not self-sustaining. From this order we have the present appeal.

The law relating to boroughs is statutory. The Act of April 1,1834, P. L. 163, provides in the fourth section that the Court of Quarter Sessions shall have power with the concurrence of the grand jury upon the application of two-thirds of the taxable inhabitants of any borough to annul or alter the charter of the same; and similar proceedings shall be had upon such application as in the case of incorporating a borough. Section 2 requires the petition to be in writing. Section 3 requires the petition to be laid before the grand jury when in session, and if the majority of the grand jury after a full investigation shall find that the conditions prescribed by the act have been complied with and believe that it is expedient to grant the prayer they shall certify the same to the court, and at the succeeding term the judgment of the grand jury may be confirmed.

The Act of June 2, 1871, Section 1, provides that the petition shall be signed within three months of its presentation, be laid before the grand jury and public notice shall be given at least thirty days immediately before the presentation of the petition.

The Act of June 26, 1895, P. L. 389, Section 2, repeals the Act of June 2, 1871, so far as it relates to the incorporation of a borough (but not as it relates to the alteration of a charter).

This was the law when the petition was presented. On May 14, 1915, the general borough code was adopted repealing the acts cited above, which code was to take effect July 1,1915. Section 3, of Article I, of this code, provides: “The provisions of this act so far as they are the same as those of existing laws are intended as a continuation of such laws and not as new enactments.” Chapter II, Article V, Sections 1, 2 and 3 reenact the same provisions as are contained in the acts cited above; so that whether we view the proceedings as being brought under, the provisions of the law as it stood prior to the Act of May 14,1915, P. L. 312, or as being brought under that act, the result is the same.

The order of the court below is sustained because the time when the petition was signed does not appear in the record; because the publication of the notice was after the presentation of the petition and not before; and because, under the ruling of In re Summit Borough, 114 Pa. 362, the return of the grand jury did not show the necessary jurisdictional facts.

The assignments of error are overruled and the appeal is dismissed.