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BOROUGH DERRY. APPEAL DERRY TP. SCHOOL DIST. (DERRY TOWNSHIP SCHOOL DISTRICT APPEAL.) (03/12/51)

March 12, 1951

IN RE BOROUGH OF DERRY. APPEAL OF DERRY TP. SCHOOL DIST. (DERRY TOWNSHIP SCHOOL DISTRICT APPEAL.)


COUNSEL

Joseph M. Loughran, Greensburg, for appellant.

Henry E. Shaw, Greensburg, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, and Arnold, JJ.

Author: Reno

[ 168 Pa. Super. Page 416]

RENO, Judge.

The School District of Derry Township appealed from an order of the court below sustaining an ordinance

[ 168 Pa. Super. Page 417]

    of the Borough of Derry annexing adjacent land in the township, enacted pursuant to the General Borough Act of May 4, 1927, P.L. 519, § 425, as amended and revised by the Borough Code of July 10, 1947, P.L. 1621, § 5, 53 P.S. § 12461.

I. A petition in proper form and containing the signature of the required number of freeholders of the territory to be annexed was presented to the borough council which enacted an ordinance on July 19, 1948, a certified copy of which was duly filed in the court below. Code, supra, § 426, 53 P.S. § 12462. It developed that two councilmen had not filed certificates of election and oaths of office, and, pursuant to an agreement of counsel for the borough and the school district, the court below, for that reason only and without passing upon the merits of the proceeding, decreed that the ordinance was 'set aside and declared inoperative, of no effect and null and void.' Nineteen days later the same petition, supplemented with a new affidavit, was again submitted to the council which enacted the ordinance which is the subject of this litigation.

Appellant's first contention is that the second ordinance is invalid because it was founded upon a petition which had become functus officio when the court invalidated the first ordinance. 'Functus officio' is a robust, sonorous Latin phrase without precisional legal connotation. Literally it means, 'having discharged his duty.' 37 C.J.S., Functus Officio, p. 1401. Practically, it describes a legal document which has fulfilled its purpose and has hence spent its force and lost its motive power, as where a judgment has once been entered upon a confession and warrant, a subsequent judgment cannot be entered even if the purpose is to correct an error in the first judgment. Harr v. Furman, 346 Pa. 138, 29 A.2d 527, 144 A.L.R. 828. However, in that case the confession and warrant were effective to produce a judgment, which

[ 168 Pa. Super. Page 418]

    was valid, and was amended by leave of court. But here the petition, when first presented, did not serve its purpose; it did not procure an ordinance. What it produced was, by the school district's own admission, nothing, a nullity, an abortive ordinance. The petition could lose its motive force only when a legally qualified council passed upon it, and either rejected it or enacted an annexation ordinance. It is not contended that the petition was defective in form or substance; its validity was not questioned in the proceedings on the first or second ordinance; and, although the first ordinance was pronounced dead, the petition survived, and was available for further action by a legally constituted council within a reasonable time.

II. The annexed territory contained 246 freeholders; the Code requires that a majority, or 124, sign the petition; 211 signed it. Prior to the enactment of the second ordinance 41 signers requested permission to withdraw their names from the petition. Had permission been granted, 170 signers would have remained on the petition, a clear majority. Whether the 41 were entitled to withdraw is therefore irrelevant, and that question is not ...


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