Jenner Township Annexation Case

Opinion by

Mr. Justice Cohen,

On October 8, 1963, the Borough of Jennerstown, Somerset County, adopted an ordinance annexing a portion of Jenner Township, Somerset County, adjacent to the borough. The ordinance was preceded by a petition to the borough purportedly signed by a majority of the freeholders of the tract to be annexed and requesting the annexation. On October 16, 1963, a certified copy of the ordinance was filed with the Court of Quarter Sessions of Somerset County and the county board of elections of that county. This filing stated that it was made pursuant to the provisions of The Borough Code, Act of May 4, 1927, P. L. 519, §426, 53 P.S. §45426.

Subsequently, on October 30, 1963, certain individual taxpayers of Jenner Township and the supervisors of that township lodged an appeal with the court of quarter sessions complaining as to the legality of the annexation ordinance. The appellants raised several issues: (1) whether the petition to the borough was signed by a majority of the freeholders of the annexed territory, (2) whether the annexation was in the best interests of the township and the borough and (3) *612whether the ordinance was wholly void since the procedure did not follow the requirements of the Act of July 20, 1953, P. L. 550, 53 P.S. §§67501-67508.

The borough answered, stating that the petition was properly signed by a majority of the freeholders, that the public interest was served by the annexation and that the provisions of the Act of 1953 were inapplicable.

The lower court then heard extensive testimony and on May 21, 1964, ruled that (1) the provisions of The Borough Code regarding annexation and those of the Act of 1953 are in pari materia and may stand together, (2) the required number of signatures was affixed to the petition and (3) the propriety of the annexation should be determined, preliminarily, by referring the matter to three commissioners as required by the Act of 1953. This was done, and the commissioners submitted a report of a rather inconclusive nature.

The court below then ordered additional testimony on the issue of the propriety of the annexation. This was done in March and April, 1965. Thereafter, the court issued a final opinion in which it reaffirmed its two prior rulings and, further, found that the annexation was a proper and justified one.

The complainants then appealed to the Superior Court which ruled that the Act of 1953 did not impliedly repeal the annexation provisions of The Borough Code and that, in reviewing the record, it found ample evidence to support the lower court’s determination with regard to the number of signers and the propriety of the annexation. Jenner Township Annexation Case, 208 Pa. Superior Ct. 62, 220 A. 2d 385 (1966). Complainants then petitioned us to allow an appeal, and we granted the petition.

The vexing issue of whether the Act of 1953 impliedly repealed the annexation provisions of various other *613acts, including those of The Borough Code, has lingered undetermined by us for a number of years. We referred specifically to the history of this controversy and to our previous refusals to decide it in Palmer Township Annexation Case, 416 Pa. 163, 204 A. 2d 760 (1964), a proceeding in which we also reviewed the various existing (and confusing) statutory provisions governing annexation of territory in a second class township to a borough, city or another township. In the present case, although certain after-the-fact actions were taken to provide a semblance of adherence to the Act of 1953, it is clear that the initial, crucial steps followed only the provisions of The Borough Code, supra, §§425, 426, 53 P.S. §§45425, 45426. Therefore, the issue of implied repeal of those provisions is squarely presented and must be decided.

We agree with the Superior Court and with its analysis of the historical basis for allowing the simultaneous existence of separate and valid annexation procedures contained in different statutes. In this context Plymouth Borough-Plymouth Township’s Appeal, 167 Pa. 612, 31 Atl. 933 (1895), and Snyder’s Appeal, 302 Pa. 259, 153 Atl. 436 (1931), seem decisive, and we see no reason to repeat what the Superior Court said on this point. Consequently, it is our decision that the Act of 1953 did not impliedly repeal the provisions of The Borough Code on annexation and that either statute may be followed in effectuating an annexation.

This determination, as well as the history behind it, also disposes of the contention of amicus curiae that the separate acts are in pari materia and, therefore, both must be followed. Each represents a separate and distinct procedure for annexing territory, and there is no basis for commingling their provisions. For this reason we also disapprove of the lower court’s attempt to incorporate the procedure of the Act of 1953 as such into this proceeding. There was no requirement that *614commissioners be appointed; and, as it turned out, their consideration was of little value.

Finally, we come to the nature of the appeal. Here, too, the Superior Court correctly decided the issue. The appeal is taken under §1010 of The Borough Code, 53 P.S. §46010, which makes the order of the court below “conclusive.” Therefore, appellate review is on narrow certiorari. This means that review may deal only with the question of jurisdiction, the regularity of the proceedings, excess in the exercise of power, if any, and constitutional questions. Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A. 2d 534 (1947); Keystone Raceway Corporation v. State Harness Racing Commission, 405 Pa. 1, 173 A. 2d 97 (1961). In applying this rule, however, the Superior Court erred by reviewing the record to determine if there was evidence to support the findings of the court below. Such a review is proper only where the appeal arises on broad certiorari (as it does, for example, under the Act of 1953). Nevertheless, it found no basis for not sustaining the lower court and, confining our review to the issues of jurisdiction and regularity, neither do we.

We are not unaware of the problems presented by current annexation procedures. They are confusing; they overlap; and they reflect little or no attention to the overriding public interest of the Commonwealth as a whole. However, these defects are a matter solely for legislative correction; and while we may sorely wish that order would come out of this chaos, we cannot decree it.

The order of the Superior Court affirming the order of the Court of Quarter Sessions of Somerset County is affirmed.