
    Annexation of Land to Ephrata Borough.
    
      Guy K. Bard, for annexation; Harris C. Arnold and John A. Coyle, contra.
    April 13, 1929.
   Groff, J.,

— This is a proceeding by which Ephrata Borough attempts to annex to the borough certain lands adjacent thereto, now located in the Township of Ephrata, on petition of freeholders to the borough council, which we find is authorized under section 425 of the General Borough Act of May 4, 1927, P. L. 508-535.

The annexation was objected to by the Supervisors of Ephrata Township, who presented a petition to the Court of Quarter Sessions of Lancaster County on Nov. 24, 1928, asking that the court order and direct that the ordinance of the Borough of Ephrata annexing said land be declared void and of no effect, for the reason that the said ordinance on its face discloses that it was not presented on petition of a majority of the freeholders of the territory to be annexed, as required by law.

There were half a dozen additional reasons given why the prayer of the petition of the supervisors should be allowed, but we will not consider them at this time for reasons which hereinafter appear.

That the supervisors are proper parties to take exception to the annexation of part of a contiguous township by the borough was decided by this court in an opinion by Landis, P. J., In re Ordinance of the Borough of Mount Joy annexing part of East Donegal Township, and reported in 37 Lane. Law Rev. 517.

In the stipulation of facts agreed upon by counsel for the Borough of Ephrata and counsel for the Supervisors of Ephrata Township it is agreed:

“1. That all of the freeholders in this tract, comprising Three Acres and Thirty-five and Eighteen Hundredths Perches located in Ephrata Township, signed the petition which was presented to the Borough Council of the Borough of Ephrata, and on the presentation of which the borough council passed an ordinance purporting to annex the tract in question to the said borough.

“2. That the blue print and draft attached to the ordinance filed by the Borough of Ephrata in the Court of Quarter Sessions in proceedings for the annexation of the said tract shows the correct dimensions of the tract, and the said draft and blue print may be considered by the court as if offered and received in evidence for the purpose of showing the extent, shape and position of the said tract in relation to the Borough of Ephrata, to the Township of Ephrata, and to other tracts purported to be annexed by similar ordinances at the same time.

“4. That the copy of the ordinance attached as ‘Exhibit A,’ to the Certification of Annexation filed in the Court of Quarter Sessions is a true and correct copy of the ordinance under which such annexation was purported to be made and may be considered as legal evidence of such ordinance.”

The Act of Assembly of May 4, 1927, § 425, P. L. 508-535, reads as follows:

“Annexation; Ordinance. — Any borough may, by ordinance, annex adjacent land situated in the same or any adjoining county, upon petition of a majority of the freeholders of the territory proposed to be annexed.”

Section 426 of the same act describes the procedure to be followed in such annexation.

The certified copy of the ordinance filed in the Clerk of Quarter Sessions Office, in its title, says:

“Providing for the Annexation to the Borough of Ephrata of a portion of Ephrata Township, in the County of Lancaster and State of Pennsylvania, adjoining the extreme southwestern portion of said Borough on the Southwest.”

And then reads as follows:

“Whereas, the petition of three-fifths of the taxable inhabitants of that part of Ephrata Township, in the County of Lancaster and State of Pennsylvania, adjoining the extreme southwestern portion of said Borough on the southwest and hereafter more fully described, has been presented to Council of said Boro, praying for the passage of an Ordinance annexing said hereinafter described part of the said Township of Ephrata to the Borough, therefore:

“Section 1. Be it ordained by the Council of the Borough of Ephrata: That the following described part of the Township of Ephrata, in the County of Lancaster and State of Pennsylvania, which is contiguous to and immediately adjoins the extreme southwestern portion of said Borough on the southwest, be and the same is hereby annexed to and made a part of the said Borough of Ephrata:

“Beginning....................

“Section 2............ Passed by Borough Council First day of October, 1928. L. 0. Alderfer, Pres, of Council. Attest: Howard L. Keiper, Clerk of Council. Approved this first day of October, 1928.

“M. W. Hess, Burgess.”

The ordinance shows that the land proposed to be annexed was annexed, not upon the petition of a majority of the freeholders of the territory proposed to be annexed but was upon the petition of three-fifths of the taxable inhabitants of the territory proposed to be annexed.

A freeholder is one who holds land in fee, or for life, or for some indeterminate period, and the word has been thus defined through all the textbooks and cases from Blackstone’s Commentaries to the present day. A taxable, or taxable inhabitant, according to Webster’s Dictionary, is one who is capable of being taxed, or liable by law to the assessment of taxes, and he may be a freeholder or not.

It is, therefore, evident that the portion of land proposed to be annexed to the Borough of Ephrata may, so far as the said ordinance is concerned, be annexed upon the petition of persons none of whom are freeholders.

The ordinance should, at least, substantially comply with the act of assembly, and should upon its face show jurisdiction or authority in the borough to do what it attempts to do. This has not been done, and we feel that the annexation under the ordinance as passed would be improper and illegal, and we, therefore, sustain the petition of the Supervisors of Ephrata Township, and the ordinance is declared null and void. The costs to be paid by the Borough of Ephrata.

From George Ross Eshleman, Lancaster, Pa.  