Everson Borough

Opinion by Rice, P. J., By the incorporation of a portion of a township as a borough a new school district is formed within the meaning of the eleventh section of the Act of April 11, 1862, P. L. 471: In re Abington School District, 84 Pa. 179. The section provides as follows : “ When a new school district is formed, the court establishing the same shall determine, on hearing, whether an undue proportion of the real estate and schoolhouses, belonging to the old district or districts, are within the bounds of the new district, and if so, how much money shall be paid therefor by the new to the old district or districts, and if any money be on hand, or debt unpaid, or any tax, or other claims, be uncollected, after the settlement of all accounts of the current year, the proper court shall divide said money, or debt, among the districts, in such proportions, and shall make such order as to uncollected tax, or other claims, as shall be just.” The order in the present case was made upon the joint petition of the two school districts formed by the incorporation of [173] part of the township of Upper Tyrone as the borough of Ever-son. Eight months after it was made a rule was granted, upon the petition of the newly elected school board of Upper Tyrone, to show cause why it should not be set aside. An answer was filed b3r the school district of Everson denying the allegation of the petition affecting the qualifications and disinterestedness of three of the township directors who participated in the agreement upon which the order was founded, and the further allegation that the agreement was inequitable and injurious to the township school district. No testimony was taken in support of either of these allegations ; therefore in the disposition of this appeal from the order discharging the rule to show cause they will be left out of consideration. 1. The appellant’s counsel question the original order upon the ground that imposing the bonded indebtedness of the former district upon the new district was not an authorized mode of adjustment. This might be true, if it had not been assented to b3rthe two parties interested in the adjustment, and the only matter to be determined was, whether an undue proportion of the real estate and schoolhouses belonging to the old district were within the bounds of the new district. But in addition to the latter matter, the act provides that if any money be on hand or debt unpaid, the court shall divide said money, or debt, among the districts in such proportion, and shall make such order as to uncollected tax, or other claims as shall be just. We can conceive of conditions where a just and equitable apportionment of the rights and liabilities of the former district, as well as- a proper adjustment of the compensation the new district ought to make for the undue proportion of the real estate and schoolhouse which are within its bounds, would both be attained by the simple imposition of the entire bonded indebtedness of the former district upon the new district, and where such method of adjustment would be advantageous to both districts. Where such conditions exist, and such method of adjustment is agreed to and prayed for by both districts, we see no reason to doubt the power of the court to adopt it. 2. But the point most strenuously insisted upon by the appellant’s counsel is, that the court had no authority to make any final order or decree in the matter except “ on hearing ” [174] and that the record shows there was no such hearing in the present case as the statute contemplates. This argument is based on the assumption that a decree “ on hearing ” necessarily implies a decree based on testimony. But if in the present case the proceeding had been instituted by the petition of one of the districts and the other had appeared pursuant to citation or other legal process, it certainly cannot be successfully claimed that, although there was no dispute between them as to the facts, they must nevertheless go to the expense of establishing them by the depositions of witnesses, or by the production and examination of witnesses in open court. As in ordinary litigation, so here, the parties to it are entitled to a hearing upon the issues of law and fact involved in the proceeding, but no rule of procedure debars the court from taking cognizance of the facts agreed to by them (this is precisely what was done in Munhall Boro. School Dist. v. Mifflin Twp. School Dist., 207 Pa. 638), or from approving an adjustment of their affairs which the law permits, and which they agree is justified or required by the undisputed facts. Whatever may be the power of the court, upon the ground of fraud or other equitable consideration, to set aside an order, which the law permits and the two school districts have agreed to and prayed for, it is quite clear that such order cannot be declared void merely because at the hearing no evidence was produced by either party outside of their agreement. As to the validity of agreements between the school boards of the two districts we refer to our recent decision in Rouseville Boro School District v. Cornplanter Twp. School District, 29 Pa. Superior Ct. 214. The argument based on the supposed dangers incident to the sanctioning by the court of such an agreement as was made by these school boards might be made with equal force against the general legislative policy relative to the management of the affairs of school districts. It will be time enough to consider the effect of proof of fraud and collusion upon the validity of an order of court founded on such an agreement when a case .arises where such proof is presented. No proof of that kind, nor any evidence that the adjustment agreed to was inequitable or unjust, was submitted to the court below; therefore the court was right in concluding, that as the order was not void for want of jurisdiction it ought not to be set aside. [175] 3. The third question presented is, whether the act of 1862 was repealed or superseded by the Act of June 24, 1895, P. L. 259. The provisions of the latter act are much broader in their scope than the act of 1862. But as we view the case it is unnecessary to discuss them or the general subject of the repeal of the statute by implication. The concluding section expressly declares that “nothing in this act contained shall be construed to supersede or repeal the provisions of any existing act of assembly applicable to the same subject-matter.” The act of 1862 is such an act. The order is affirmed and appeal dismissed at the costs of the appellant.