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GENKINGER v. NEW CASTLE (11/15/51)

November 15, 1951

GENKINGER
v.
NEW CASTLE, APPELLANT



Appeal, No. 130, March T., 1951, from decree of Court of Common Pleas of Lawrence County, March T., 1950, in Equity, No. 6, in case of Jacob F. Genkinger v. City of New Castle and The Officers' and Employees' Retirement Board and Edith M. Cleaveland, Cordelia Jones and J. Harold Wood. Decree affirmed.

COUNSEL

Alvah M. Shumaker, with him Ralph A. Cooper, for appellants.

Sherman K. Levine, District Attorney, with him John S. Powers, Robert White, City Solicitor, and Robert E. Jamison, Assistant City Solicitor, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 368 Pa. Page 548]

OPINION BY MR. JUSTICE BELL

Plaintiff brought a taxpayer's bill to declare null

[ 368 Pa. Page 549]

    and void an ordinance of the City of New Castle, enacted December 1, 1947, setting up a pension or retirement system for officers and employees of the City, and praying for an injunction to prevent payments thereunder by the City to the Officers' and Employees' Retirement Board.

Municipalities are not sovereigns; they have no original or fundamental power of legislation; they have the right and power to enact only those ordinances which are authorized by an act of the legislature: Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182; Murray v. Phila., 364 Pa. 157, 71 A.2d 280.

Moreover, an ordinance must be in conformity with the provisions of the enabling statutes; if it conflicts therewith it is void: Bussone v. Blatchford, 164 Pa. Superior Ct. 545, 67 A.2d 587; Grisbord v. Phila., 148 Pa. Superior Ct. 91, 24 A.2d 646; Kline v. Harrisburg, 362 Pa., supra; 1 Dillon on Municipal Corporations, 5th Ed., 449.

The Legislature of Pennsylvania by Act of May 23, 1945, P.L. 903, 53 P.S. 12198, 4371-4384, authorized Cities of the Third Class to establish a retirement system for officers and employees and prescribed certain conditions or limitations. The Act expressly permitted such a city to include in a pension ordinance persons who were officers or employees of the city at the time of the enabling ordinance and those who were thereafter elected.

The third class city of New Castle had a Council of five members composed of the Mayor and four elected officials. The Ordinance of December 1, 1947 covered all the Councilmen and if valid would permit 4 of the 5 to retire on a pension at the end of their respective terms, which was 1948 for one councilman and 1952 for three ...


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