The opinion of the court was delivered by
Woodward, J.The legislature, by the Act of 1st April, 1834, empowered the Quarter Sessions, with the concurrence of the grand jury, to incorporate towns and villages into boroughs, on *258the application, in writing, of a majority of the freeholders residing within the limits of the same. The Act also required that the town or village to be incorporated should contain three hundred inhabitants; but this was taken away by the Act of 3d April, 1851. The latter act, however, dispensed with no other conditions of the prior act, but, on the contrary, reasserted them,-in declaring that the power of the courts should be exercised “as provided by law”
This was held to be very special legislation in the case of The Borough of West Philadelphia, 5 W. & S. 283, and not to be carried further than its words absolutely require.
.To show that the Quarter Sessions had jurisdiction, it is necessary that it should appear somewhere upon the record that there was a town or village to be incorporated, and that a majority of the freeholders therein asked for it. Neither of these things appear here. How many freeholders there are was not stated; but thirty-two citizens' signed the original petition, and sixty-five protested against it. A supplemental petition was presented with some fifty names, but in neither petition is it claimed that a majority of freeholders want the borough, op that there is any town or village to incorporate. A tract of land, one and three-quarter miles square, is laid out as the boundaries of the proposed borough, two of the lines of which, the petitioners admit, run for a considerable distance through a wilderness, but that they contain any “ collection of houses, collocated after a regular plan in regard to streets and lanes,” is not pretended.
The court then had no jurisdiction to incorporate such a district of country. The legislature never conferred it — never meant to confer it.
The size of the territory is not a question for us where the statutory conditions exist, as we held in the case of The Borough of Sewickley; but such- extravagant dimensions as are assumed in ■this case, are a reason for insisting peremptorily that the statutory prerequisites shall appear to have been complied with.
It is said it is too late for the appellants to insist on these exceptions now, having waived them below. That would be a good reason for not reversing if the exceptions did not touch the jurisdiction. It is never too late to take advantage of a want of that.
The defect of jurisdiction is the ground on which the decree is reversed at the costs of the appellees.