Incorporation of Wayne Borough

Opinion by W. D. Porter, J., A petition was presented to the court below, on November 2, 1896, praying for the incorporation of the borough of Wayne. The notice required by law was given, and remonstrances were filed and petitions presented asking the exclusion of lands used exclusively for farming purposes, and not properly belonging to the village. The court, of its own motion, referred the whole proceeding under this order, viz: “ December 10, 1896, referred to Orlando Harvey, Esq., to take testimony, hear the parties interested, and report to the court, the report to be filed on or before the first Monday of March next.” The proceedings dragged along before the master for two years, and the report was filed on December 29, 1898. Exceptions to the report of the master were filed, and the court, after hearing arguments, filed an opinion and made this order, viz : “ The exceptions are all dismissed and the report of the master is now confirmed and adopted as the act of the court; let a decree be drawn by counsel and submitted to the court for approval, costs to be paid by the borough.” This order was signed by the court in the manner in which other orders in the case were signed, and the court, on July 10, 1899, by a formal decree, modified so much of it as related to the payment of costs. This order is undoubtedly a part of the record. The final decree was prepared in accordance with the recommendations of the master, and was in part, as follows: “ And now, February 6, 1899, regular continuances of the hearings before the master from time to time during the entire proceedings are hereby decreed, nunc pro tunc, the exceptions to the report of the master are dismissed, and from said report and testimony, the court, after a full investigation of the case finds that the conditions prescribed by law have been complied with, and that it is expedient to grant the prayer of the applicants,” etc. The decree excludes certain farm lands. Upon the entry of the final decree, the remonstrants appealed. If the hearings in proceedings to incorporate boroughs are, [369] upon reasonable grounds, regularly adjourned from time to time, by the court, the spirit of the act is complied with, the purpose of the legislation being to give all persons interested an opportunity to be heard and to know when hearings are being held. The first and second specifications of error are dismissed. The third, fourth and fifth specifications of error may be considered together. They all go to the action of the court in referring the proceedings to a master and founding the final decree upon the master’s report. It is idle to discuss whether Mr. Harvey was appointed a master or an examiner. He was not appointed to take testimony of witnesses merely; but the case was referred to him to take testimony, hear the parties interested, and report to the court. These are the duties of a master. The appointee so considered his office and, accordingly, acted and reported as master. What is more material, however, when the report of the master was presented, with findings of fact and conclusions as to expediency, the court treated and designated it as a master’s report, and “ adopted it as the act of the court,” and, finally, founded upon it the decree of incorporation. The jurisdiction of the court of quarter sessions to incorporate boroughs is wholly statutory. Under the provisions of the Act of April 1, 1884, P. L. 163, the petition for incorporation was laid before the grand jury, and it was required that a majority of said grand jury should find, after a full investigation of the case, that the conditions prescribed by the act had been complied with, and that it was expedient to grant the prayer of the petitioners. The law so remained until changed by the Act of June 26, 1895, P. L. 389, which, after providing for notice and the filing of exceptions, enacted: “And the court at said term, after a full investigation of the case, if it shall find that the conditions prescribed by law have been complied with and shall believe that it is expedient to grant the prayer of the applicants, shall grant the same and make a decree accordingly.” The second section of said act repeals all laws requiring the laying of the application before the grand jury. The law vests in the judges of the court of quarter sessions the discretion to determine all questions of fact and expediency arising in pro [370] ceedings to incorporate boroughs; the result of the exercise of that discretion is not reviewable by the appellate court, unless in case of an abuse of discretion distinctly charged and clearly established, and there is no appeal upon the merits. So long as the record is formally correct, the court of quarter sessions has the power to determine finally the form of local government which shall prevail within the limits of the proposed borough. This is a power which touches the interests of all who reside of own property in the proposed borough, or the township from which it is taken. Such a power, founded upon statute, must be exercised strictly within the lines of the legislation from which it is derived. Recognizing the character of the jurisdiction, as affecting public interests, Gibson, C. J., in Borough of West Philadelphia, 5 W. & S. 281, doubted the wisdom of the legislation by which it was conferred. While the legislature has conferred upon the judges of the court of quarter sessions these extensive powers and imposed corresponding duties, there is not a line of legislation which authorizes them to appoint some private individual to perform said duties and exercise said powers. As was said in Middleton v. Middleton, 187 Pa. 612: “ It never was intended that judicial function should in any material degree be relinquished by conducting the proceedings before a master in his office, or that weighty judicial responsibility should be evaded by shifting it over to a member of the bar. We feel that a careful perusal of the statutes will convince any one of the correctness of these observations. The ability, learning and conscience of the court must be called into exercise.” The court derived its powers .from the Act of June 26,1895, P. L. 389, which enacts : “ And the court at said term, after a full investigation of the case, if it shall find that the conditions prescribed by law have been complied with, and shall believe that it is expedient to grant the prayer of the applicants, shall grant the same and make a decree accordingly.” The power thus given is specific. It is to fully investigate the case. Tins would involve an examination of the record, hearing the parties interested and such testimony as they produced. If such investigation convinces the court, then the court finds the facts and decrees accordingly. The decree must be founded in the belief of the court resulting from its own investigation. It is [371] not sufficient that the facts have been proved to the satisfaction of a master, by witnesses whom the court neither saw nor heard. The manner in which the jurisdiction of the court of quarter sessions to incorporate boroughs shall be exercised is clearly indicated by the statute, and confers no authority upon the court to refer the proceedings to a master. In this case, the proceedings were not only referred to a master, but the decree is1 founded upon the master’s report. This was without authority of law: Forbes Street, 70 Pa. 125; Middleton v. Middleton, 187 Pa. 612. The learned court below, in an opinion filed with the supplemental decree of July 10,1899, held that, as the parties had appeared before the master, they had waived all objections to his appointment. The same state of facts arose in both of the cases above cited, and the question of the jurisdiction of the court to appoint a master was first suggested in the Supreme Court. “ Proceedings for the incorporation of a borough are not in the nature of a private litigation; the court has a public duty which no action of a portion of the community, no matter how large, can excuse it froiu performing. The doctrine of estoppel or implied waiver has no application to such cases : ” Linton Borough, 5 Pa. Superior Ct. 36. The parties in the present case went before the master because the court, without the consent of any person, so far as shown by the record, had referred the whole proceeding to that master. There is no force in the suggestion that the master be considered as having acted as an examiner to take testimony, and that the decree may be sustained upon the theory that the testimony may have been read by the court. The answer to this is in the decree: “ The exceptions to the report of the master are dismissed, and from said report and testimony the court, after a full investigation of the case, finds,” etc. The decree declares upon its face that it is in part founded upon the report of the master. We cannot determine the extent to which the report of the master influenced the court; the opening sentence of the opinion of the court is : “ The exhaustive report of the master so completely answers all the exceptions filed touching the merits of the case as to render further comment unnecessary,” which indicates that the report settled every question which, under the law, ought to have been the subject of the exercise [372] of the discretion of the court. It is true that the opinion is no part of the record, but this opinion demonstrates the importance of adhering strictly to the mode of procedure indicated and confining the jurisdiction within the limits authorized by law. The third and fifth specifications of error are sustained. Decree reversed.