Appeal from order of Court of Quarter Sessions of York County, Oct. T., 1962, No. 1, in re Ordinance No. 132 for annexation of portion of Carroll Township by Borough of Dillsburg.
Russell F. Griest, with him Griest and Wiley, for appellant.
P. Nelson Alexander, with him Alexander and Alexander, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J.
[ 208 Pa. Super. Page 188]
A number of freeholders of Carroll Township presented their petition to the Borough of Dillsburg praying for the annexation of two separate tracts of land by the borough. These two tracts are not contiguous to each other, but each of them is contiguous to the borough. The borough council received the petition at a regular council meeting on September 18, 1962 and at the same meeting adopted an ordinance ordaining the annexation as prayed for in the petition. The township supervisors filed a timely complaint raising a number of objections to the annexation.
The preliminary determination of the legality of the ordinance was made on the basis of the then existing record and commissioners were appointed to make findings of fact pursuant to the Act of July 20, 1953, P. L. 550, 53 PS § 67501 et seq. Following the report of the commissioners, the court below approved the annexation of Tract No. 1 but dismissed the proceedings as to Tract No. 2. Carroll Township appealed to this Court.
This appeal, which is in the nature of a narrow certiorari,*fn1 raises three questions. First, the township contends that the ordinance was not recorded in the
[ 208 Pa. Super. Page 189]
ordinance book within one month after its passage as required by § 1008 of the Act of May 4, 1927, P. L. 519, as variously amended and re-enacted, 53 PS § 46008. To support this contention three witnesses are relied on. Namely, Beverly Davis, who was elected by the council to be borough secretary at the meeting on September 18, 1962, Clarence H. Wolf and Paul Knisley. The latter two are members of the board of supervisors of the township. The two supervisors testified that on different dates they, sometimes alone and sometimes together, called on Mrs. Davis, Mr. Robson, the borough secretary who immediately preceded Mrs. Davis, and Mr. Alexander, the solicitor for the borough, and asked to see the borough ordinance book. They never saw it, for each time inquiry was made of these three people, he or she denied having possession of the book and stated that one of the other two had it. Neither of the supervisors could say, therefore, if the ordinance was recorded or not. Mrs. Davis did testify that it was recorded about ten days after its enactment, which was not rebutted. The court below accepted her testimony and with this we agree. Furthermore, the fact that the ordinance book could not be located does not establish that the ordinance had not been recorded therein.
The township also contends that since the court below dismissed the proceedings as to Tract No. 2, it must follow that the entire ordinance was invalid. Judge Atkins properly stated that it would be much more conducive to orderly procedures to restrict any annexation proceeding to a single tract of land, but he also properly held that if an invalid portion is severable, the remaining portion may be sustained if the paramount intent of the ordinance can be accomplished: Grisbord v. Philadelphia, 148 Pa. Superior Ct. 91, 24 A.2d 646.
[ 208 Pa. Super. Page 190]
In the present case there were but two properties in Tract No. 2 and neither owner joined in the petition. The argument was made that if those two owners were included in the total number of freeholders in both tracts, the number of signers exceeded a majority of that total. The court below very aptly stated: "If this were permitted a municipality could annex land against the wishes of the majority of the freeholders in that area by the simple device of making it a part of a proceeding to annex a totally unrelated area if those requesting annexation of the second area were sufficient in number to constitute a majority of the freeholders in both areas, even though, as here, none of the freeholders in the first area expressed a desire to have their property annexed. This would violate the concept of the democratic process and we do not believe that such a ...