Incorporation of Linton Borough

Opinion- by Rice, P. J., The court of quarter sessions has no authority to decree the incorporation of a borough unless “ it shall find that the conditions prescribed by law have been complied with and shall be [39] lieve that it is expedient to grant the prayer of the applicants : ” Act of June 26, 1895, P. L. 889. One of these conditions is that public notice of the application shall be given in one newspaper of the proper county for a period of not less than thirty days immediately before the next regular term following the presentation of such application and the filing thereof. Where the court has refused the application because this condition has not been complied with it is not ground for reversal that the exceptants or remonstrators appeared and filed objections, and therefore were not harmed by the omission. For it is not ceitain that they are all the persons interested who would have appeared and opposed the incorporation if legal notice had been given. Conceding that the persons appearing and contesting the application might estop themselves from objecting to the mere form of a notice duly published-for the requisite length of time (Edgewood Borough, 130 Pa. 348; Camp Hill Borough, 142 Pa. 511; Taylor Borough, 160 Pa. 475 ; but see also Osborne Borough, 101 Pa. 284), they could not, by the most formal waiver, preclude the court from inquiring into the sufficiency of the notice and refusing its approval of the application for want of publication thereof as prescribed by law. This is not in the nature of private litigation; the court has a public duty which no action of a portion of the community, no matter how large, can excuse it from performing. As the case is presented the doctrine of estoppel or implied waiver has no application. The only notice we need consider is that published after the petition was filed. This simply stated that on July 20,, 1895, a petition had been presented to the court of quarter sessions for the incorporation of certain described territory into a borough; but gave no information as to the time when the application would come on to be heard. Assuming that it was sufficient to put a person interested upon inquiry, he would have found, upon going to the record, that the petition was drawn under the act of 1834, and prayed for a reference of the matter to the grand jury, and for a decree of incorporation provided that body should certify to the court that the provisions of the acts of assembly in such case made ánd provided had been complied with, and that it was expedient to grant the prayer of the petitioners. He would have found, also, that an order had been made referring the matter to the grand jury at the next (September) term [40] of court, and that this order stood unrevoked at-the beginning of said term. He would have been justified in presuming from the form of the petition and the state of the record that the petitioners and the court intended to proceed under the prior acts and in disregard of the provisions of the act of 1895, and that he could safely await the action of the grand jury. Construed in the light of the record the advertisement did not give notice to the public that the court would proceed at the next term of court to make an investigation of the case in the manner prescribed by the act of 1895. It was as misleading as if it had stated in so manjr words that the application had been filed and would be investigated by. the grand jury at the next term of court. This .was not the notice contemplated by the act of 1895, and the public were not bound to know or to presume that at some subsequent term, no matter how distant, the court might investigate the case and make a decree. When September term came without any previous revocation of the order of reference to the grand jury or other notice than that to which we have referred, the public had a right to presume that the character of the proceeding was fixed and would not be changed to a proceeding under the act of 1895, of which they had had no notice. And when September term passed without any hearing by the court or the grand jury and without an order continuing the case, they had a right to presume that the proceeding was dead and would not be resuscitated at some succeeding term. If the order of September 28th, revoking the reference to the grand jury had been made at the time the notice was published a different case would be presented, concerning which we need express no opinion. Under the circumstances of this case the court was clearly right in holding that it had no authority at December term to proceed to a hearing and to make the decree prayed for. The constitutionality of the act of 1895 has been considered in the case of the Borough of Emsworth, 5 Pa. Superior Ct. 29. The decree is affirmed and the appeal dismissed at the costs of the appellants.