
    RYON TOWNSHIP.
    In ordering an election, the order should state whether the question to be voted on, is the erection of a new township, or the division of an old township.
    Certiorari to. the Court of Quarter Sessions of Schuylkill County. No. 168 January Term, 1867.
    On January 10, 1865, a petition was presented to the Court asking for the appointment of viewers to erect a new township out of Mahanoy and Rush townships. Viewers were appointed, who reported adversely to the petition and the report was confirmed by the Court. On December 16, 1865, a petition of 101 citizens of Rush and Mahanoy townships (alleging themselves to be a majority of the voters of said townships) was presented asking for a review and the appointment of three reviewers to inquire into the propriety of the erection of a new township. Reviewers were appointed who reported in favor of erecting a new township according to certain lines which, however, were differently described from those specified in the petition but were practically the same.
    The Court granted an order directing a vote of the qualified electors of Rush township and such of those of Mahanoy as reside within the bounds of the proposed new township. The election was held April 10, 1866, and the return showed that at said election there were one hundred and thirty-two votes cast against division, and ninety legal votes cast for a new township, and five legal votes against a new township, and one vote against division new township.”
    July 16, 1866. Decree made erecting new township. A certiorari was taken, and F. B. Qoioen,and Bin Bartholomew, Fsqs., for plaintiff in error contended the proceedings were fatally defective because .the Court did not order the Commissioners to inquire into the propriety of granting the prayer of the petition Macungie Township, 14 S. & R. 67 : Limestone Township, 1 Jones 270 ; Bethel Township, 1 Barr 97; Harrison Township, 5 Barr 447. No notice was directed to be given and it does not appear that any. notice was given . to the inhabitants as required. Bethel Township, 1 Barr 97 ; Norwegian Township, 8 Harris 824 ; North Whitehall Township, 11 Wright 156.
    The Court had no power to adopt any other lines than those prayed for in the original petition. Green Township, 9 W. & S. 22.
    The Court should not have divided the township, it being appeared that a majority were against the division though their ballots might not be in proper form.
    
      F. W. Hughes, J. W. Ryon and G. E. Farquhar, Esqs., contra:
    
    The prayer of the petition was for the erection of a new township and the order of Court directed the Commissioners to inquire into the propriety of erecting a new township ; and the objection that the oilier of Court did not direct the Commissioners to inquire into the propriety of granting the prayer of the petition is hypercritical.
    The cases cited of Bethel Township, 1 Barr 97, and Norwegian Township, 8 Harris 325, are cases under the" Act of April 15, 1834, P. Laws 539, whereby the Court was empowered to erect a new township without submitting it to the vote of the people, and in such case there was a necessity for notice ; which does not exist under the Act of March 14, 1857, P. Laws 93, when the question is afterwards submitted to a vote of the people. The case of.North Whitehall Township, 11 Wright 156, merely decides that where the Court orders three weeks notice, that order must be complied with. Besides it is not to' be presumed that no notice was given because the order of Court does not direct notice to be given. Schuylkill Falls Road, 2 Binney 250.
    The only legal votes cast at the election were those cast for or against a new township, and of these a large majority was in favor of the new township.
   On February 11th, 1867, the Supreme Court reversed the decision of the Court below in the following opinion :

Read, J.:

There are two Acts of Assembly passed 14th March, 1857, (P. L. 93), and 24th April, 1857 (P. L. 304), requiring elections to be held in the cases of a division of a township, and of the erection of a new township, under the first act in a case of a division “of a township, the ballots are to be for division or against divisiou,” and under the second act in the case of the erection of a new .township the ballots are to be “for a new township, or against a new township.”

The proceedings in this case might well mislead a layman, for . in some portions it looks like a case of division and in others like that of the erection of a new township, which was no doubt the real object of the whole proceeding. The order for the election is very vague and conveys no very definite idea of the question and the return of the election officers shows clearly that a mistake was made by the majority against the new township in voting as if it were against the division of the township. This error can only be cured by setting aside this election and the final decree based upon it; in the order for a new election, if the Court should make one, the order should contain a proper reference to the provisions of the Act of Assembly showing how the ballots should be written or printed and the words they should contain.

Decree reversed and procedendo awarded.  