In re Turtle Creek. Boroughs-Charter-Amendment- -Act 1915, P. L. 321. - Petition Signing of Return of On June 17, 1915, a petition was presented to have the name of a borough changed and the court made an order uxing September 11, 1915, as the time for a hearing. After hearing the matter was referred to the Grand Jury, which on October 11, 1915, made the following return; "And now, to wit, October 11, 1915, we, the Grand Jury, do concur in the petition in above entitled case and do recommend that the corporate name of said borough be changed to the Borough of Westinghouse." Two similar petitions from adjoining boroughs for the same name were refused by the Grand Jury on the same date. On exceptions to the return of the Grand Jury, Held: The duty of ascertaining whether the proceedings are conformable to law rests upon the court and the court cannot confine its attention to those questions only that are raised by the exceptions. The only date indicating when the petition was put in circulation is the date at the end were the words and figures "Turtle Creek, March 25th, 1915." The petition was verified by affidavit June 11, 1915. Between the first and last date a new act relating to the amendment and annulment of borough charters was passed by the General Assembly. This act required that the petition shall be signed within three months immediately preceding its presentation, and stipulated what the Grand Jury should find. Held: That the statutory requirement as to signing cannot be left to inference, but it must appear as a fact; nor was the return of the Grand Jury sufficient in that it failed to comply with the Act. Proceeding quashed. Exceptions to Report, etc., of Grand Jury. Q. S. Allegheny County. No. 8 June Sessions, 1915. S. M. Cunningham and A. M. Thompson for Turtle Creek. A. T. Morgan, for Wilmerding. James A. Nugent, for East Pittsburgh. George B. Gordon and Miles H. England, for Westinghouse Co. CARPENTER, J., December 23, 1915. This controversy arises in proceedings for change of name of the Borough of Turtle Creek. Under date of June 17th, 1915, the proceeding was initiated by the presentation of a petition signed by more than two-thirds of the taxable inhabitants of said borough and verified by affidavit. The Court made an order that the petition be filed, and Saturday, September 11th, at ten o'clock A. M., was fixed for hearing, notice of the application to be given by publication once a week for four weeks, the last notice to be at least 30 days before the next term of court. Under date of September 11, 1915, the Court made an order referring the petition to the Grand Jury for consideration Monday October 11, 1915. On that day, October 11th, the Grand Jury presented in Court the following "Finding and Recommendation:" "And now, to wit, October 11, 1915, we, the Grand Jury, do concur in the petition in above entitled case and do recommend that the corporate name of said borough be changed to the Borough of Westinghouse." After the petition for change of name of the Borough of Turtle Creek was filed petitions were filed by the requisite number of taxable inhabitants of the Boroughs of Wilmerding and East Pittsburgh, respectively, praying for change of name to Borough of Westinghouse. Orders were made referring both petitions to the Grand Jury. The Grand Jury made report on all three petitions on the same day, the reports on the petitions from East Pittsburgh and Wilmerding being in the negative. Exceptions having been filed, counsel representing the several petitions and the exceptions to the "Findings and Recommendations" of the Grand Jury were heard and their respective claims and contentions fully presented. Inasmuch as the Grand In re Turtle Creek. Jury recommended that the petition for change of name of the Borough of Turtle Creek, only, be granted and that the petitions for change of name of the other two boroughs be refused, we will confine the discussion of the questions raised, to the proceeding for change of name of the Borough of Turtle Creek. The Act of Assembly providing for the incorporation of boroughs and for the alteration of borough charters confers jurisdiction upon the Court of Quarter Sessions, and requires the concurrence of the Grand Jury. The duty of compliance with the statutory requirements rests upon both, but the duty of ascertaining whether the proceedings are conformable to law rests upon the Court. The regularity of the proceedings being open to attack by any interested party, the Court cannot confine its attention to those questions only that are raised by the exceptions. For while the Court is not required to be astute in the discovery of minor defects and informalities, it is bound sua sponte to notice any failure to comply with statutory requirements. The petitioners and exceptants constitute but part of the body politic. The decisions of our Supreme Court show the care exercised by the Judges and their insistance upon literal compliance with the provisions of the statutes. As examples, attention is called to the following cases: In re Division of Bethel Township, 1 Pa. St., 97; In re Division of Conneaut Township, 6 P. L. J., 121; In re Division of Plum Township, 83 Pa. St., 73. In the first of the proceedings cited, the Court say: "That the Commissioners were not commanded to report whether in their opinion the Township ought to be divided is fatal." In the Harrison Township case the Court say: "The report of the viewers should also contain an explicit opinion as to the propriety of granting the prayer of the petitioners and this inquiry is their duty." In the Conneaut Township case Mr. Justice Strong wrote a very full opinion reviewing the decisions and reversed the decree ordering a division of the township, "solely on the ground of defectiveness of the order to the commissioners." In the Plum Township case, the order of Court directed the commissioners "to mark out and lay out said new township and suggest name thereof ***if it is necessary and proper such new township should be formed," and the Supreme Court reversed because the order did not direct the commissioners to "inquire into the necessity and propriety of granting the prayer of the petitioners" as required by the Act of Assembly. It seems plain that the first duty of the Court is to examine the proceedings and ascertain whether the statutory requirements have been observed, because if they have not, any person affected by the final decree may successfully attack the proceedings and produce consequences not anticipated even by the contestants. The only date indicating when the petition was put in circulation is the date at the end where the words and figures, "Turtle Creek, March 25th, 1915," appear. The petition was verified by affidavit June 11, 1915, and presented in Court and filed June 17, 1915. Between the first and last of the dates mentioned an act entitled, "An Act providing a system of government for boroughs, and revising, amending and consolidating the law relative to boroughs," was approved. Chapter II, article 5 of this Act (P. L. 321) provides for the amendment and annulment of borough charters. Section one provides that the Court of Quarter, Sessions may, with the concurrence of the Grand Jury and upon application in writing of two-thirds of the taxable inhabitants of any borough, annul or alter the charter of such borough. Section two requires that the application shall be signed by the petitioners within three months immediately preceding its presentation to the Court. It also requires that public notice be given in at least one newspaper of the County for a period of not less than thirty days immediately before the application shall be presented. The third section requires that the applica In re Turtle Creek. tion be laid before the Grand Jury at the same term, or not later than the next term of the Court. This section further provides as follows: "If the Grand Jury shall find that the conditions prescribed by this article have been complied with and shall believe it expedient to grant the prayer of the petitioners, they shall certify the same to the Court, which certificate shall be entered of record. No further proceedings shall be had until the succeeding term of Court, at which term the judgment of the Grand Jury may be confirmed." Assuming, for the present, that this proceeding is governed by the Act of 1915. P. L. 312, the first question that arises is: Have the provisions of that Act been followed, in so far as they prescribe the course of procedure for altering borough charters? It will be noted that the ultimate responsibility in the proceeding rests upon the Court. The Court may confirm or it may refuse to confirm the action of the Grand Jury. As heretofore stated, it cannot be doubted that the first duty of the Court is to examine the proceedings and ascertain whether the statutory requirements have been observed. The Act requires that the application shall be "signed within three months immediately preceding its presentation to the Court." As this is a prerequisite, a jurisdictional fact, the affidavit to the petition should aver that it was signed within the prescribed period. As above indicated the only reference to date is at the end of the petition, where the words, "Turtle Creek, Pa., March 25, 1915," appear. Doubtless this is the date when the petition was prepared and put in circulation, and if so, the signatures were attached within three months immediately preceding its presentation to the Court. But in view of the authorities cited, there would seem to be no doubt that compliance with the statutory requirement cannot be left to inference, it must appear as a fact. The fact may be made a matter of record at any time before decree: In re Summit Borough, 114 Pa. St., 362. Notice of the intended application does not appear to have been given. It does not appear that any notice was given until after the application was presented to the Court and filed. If such notice was given the fact should be made a matter of record. If notice of the time of hearing before the Grand Jury is a substantial and sufficient compliance with the requirement of the Act this irregularity can be overlooked. But we are unable to discover any reason why the fact of notice as required may be dispensed with and another notice substituted. We come now to the matter that can not be regarded otherwise than of vital importance, to wit: the "Finding and Recommendation of the Grand Jury," which is as follows: "And now, to wit, October 11, 1915, we, the Grand Jury, do concur in the petition in the above entitled case, and do recommend that the corporate name of said borough be changed to the Borough of Westinghouse." In re Summit Borough, Supra, the Court, in an opinion by Mr. Justice Clark, discussing the provisions of the Act of 1834, say: "It is clear that the power of the Quarter Sessions is to be exercised 'with the concurrence of the Grand Jury,' the same discretion is to be exercised by both. The Grand Jury must enter into a 'full investigation of the case, not only so, they must certify to the Court the result of their investigation, not with the particularity of a special verdict, perhaps, but at least in the general terms of the statute. If they find that the conditions prescribed by the statute have been complied with and believe that it is expedient to grant the prayer of the petitioners it is their duty to certify to this effect in proper form, to the Court, in order that at the succeeding term, if the Court shall be of the same opinion, the judgment of the Grand Jury may be affirmed." * "The certificate of the Grand Jury in such cases, should set forth substantially, that after a full investigation of the case, the jurors find that * In re Turtle Creek. the conditions prescribed by the law have been complied with, and that they believe that it is expedient to grant the prayer of the petitioners." The Act of 1915, Section 3, omits the words "after a full investigation" found in Section 3 of the Act of 1834, but the jury is required to "find that the conditions prescribed by this article have been complied with," and they must state whether they "believe it expedient to grant the prayer of the petitioners," and must "certify the same to the Court." The report in this case does not comply with any one of the requirements quoted. The Act of Assembly pursuant to which this proceeding was instituted is not specified in the petition, nor was it essential that it should be. The only Act then in force prescribing the procedure was the Act of 1834, the third section of which sets out in detail the course to be pursued in the incorporation of boroughs, and the fourth section of which provides for altering charters and says the proceedings under section 4 shall be the same as those prescribed for incorporation. The Act of June 26, 1895, P. L. 389, provides a new method for incorporation of boroughs. It omits the requirement that the petition shall be laid before the Grand Jury and repeals all laws containing this requirement. If the effect is to repeal the Act of 1834 in toto then from that date until May 14th, 1915, we had no statute authorizing the alteration of borough charters; at least none to which attention has been called. Although the petition may have been signed in whole or in part, prior to May 14th, the proceedings cannot be said to have been instituted prior to June 17th, when the petition was presented in Court and filed. But whether the Act of 1834 or the Act of 1915, shall govern, the result must be the same. We cannot ignore the failure to conform to the plain mandate of the statute. If we should hold that the omission of any or all of the statutory requirements preceding the report of the Grand Jury was not fatal, there seems to be no escape from the conclusion that the "Finding and Recommendation" of that body is incurably defective, and, therefore, that the proceeding must be quashed. In this view of the matter further discussion is unnecessary. Whether the boroughs of East Pittsburgh, Turtle Creek and Wilmerding should be consolidated may admit of debate, and in any event that question, though discussed in the arguments, is not before the Court. That the two first named boroughs are so closely united in fact that they should become one in law, can scarcely be doubted. All that is now decided is, that as "the judgment of the Grand Jury" can not "be confirmed," the proceeding, in our opinion being fatally defective, must be quashed. ORDER. And now, December 23, 1915, this matter having come on for hearing was argued by counsel, and thereupon, after due consideration, it is ordered that the proceedings be quashed. Costs to be paid by petitioners. Scire Facias Borough of Carrick vs. Canevin, Trustee. -Municipal Claim-Burial Ground. -Burden of Proof-Service. Exemption-Pleadings A scire facias was issued on a municipal claim for grading, paving and curbing a borough street. The affidavit of defense alleged that the property "is now and was at the date of the making of the improvement in said Brownsville road a place of burial not used or held for private or corporate profit." The defendant had not appeared before the viewers, nor were exceptions filed to the viewers' report, nor was an appeal taken from the assessment. At the trial plaintiff moved for judgment as defendant offered no testimony in support of his affidavit of defense on the ground that as the use to which the property was put had been raised in the affidavit of defense it was sufficient to put plaintiff on notice of the defense and the plaintiff having offered no evidence on this question, he was not required to offer testimony on this part or assume this burden. A juror was withdrawn and the case submitted to the Court under the Act allowing such submission. Held: That under the provisions of the Act of June 4, 1901, P. L. 364, Section 5, a plea of exemption shifted the burden upon plaintiff to show that the land was not exempt. It appeared that the trustee of the property was a non-resident of the borough, but that there was a dwelling house on the property, which was used as a burial ground, and that the house had been occupied for the last 17 years by a tenant. Held: That under the provisions of the Act of 1891, P. L. 75, Section 2, amended by the Act of 1903, P. L. 124, evidence showing the time and manner of the service of notice of the preparation of the viewers' schedule otherwise than in the statutory method was immaterial and irrelevant. Scire Facias Sur Municipal Lien. No. 2966 July Term, 1912, C. P. Allegheny County. W. H. Lemon, for plaintiff. W. C. McClure, for defendant. OPINION CARPENTER, J., September 9, 1915.-At No. 242 July Term, 1908, plaintiff filed its claim against Rt. Rev. Regis Canevin, Trustee for St. Joseph's Congregation, owner or reputed owner, for the sum of $1,612.88, with interest, for the grading, paving and curbing of Brownsville Road. The lien recites that the assessment for the improvement was made according to the Acts of Assembly governing same, and was finally confirmed by the Court October 31, 1907, at No. 529 July Term, 1907. The lot of ground against which it is sought to enforce payment of the lien is described as fronting on the West side of Brownsville Road 363.63 feet, and extending back 1,200 feet, more or less, to the west borough line. On June 28, 1912, a scire facias was issued, and on July 11, 1912, an affidavit of defense was filed. A rule for judgment was entered, and thereafter a supplemental, and later an amended affidavit of defense was filed. The rule for judgment was discharged, and on appeal the judgment was affirmed (opinion by Mr. Justice Moschzisker, Pa...). The cause came on for trial and amendments were allowed to be filed by both parties. After the evidence was heard counsel agreed that the decision of the cause be submitted to the Court, as authorized by law, and thereupon a juror was withdrawn and the cause continued, and thereafter an agreement in writing was duly signed and filed. There is no controversy respecting the amount of the lien, nor as to the ownership of the land against which it is filed. Neither is there any question as to the use made of the premises nor as to the fact that within the boundaries of the same there is a house occupied by the Sexton or caretaker of the premises, who has resided there for about seventeen years. The testimony shows that the front part of the premises, next the Brownsville Road, is, to a large extent, occupied by graves and that most of the lots in this front part of the cemetery have been sold. It also appears that approximately two-fifths of the entire tract is occupied by graves, the |