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WINGER v. AIRES (06/24/52)

June 24, 1952

WINGER, APPELLANT,
v.
AIRES



Appeals, Nos. 81 and 82, Jan. T., 1952, from decree of Court of Common Pleas of Lancaster County, page 144, Equity Docket, No. 10, in case of Charles B. Winger, Ira B. Winger and Ruth B. Oberholtzer, et al. v. Ray Aires et al. Decree reversed.

COUNSEL

Paul A. Mueller, with him Ralph M. Barley, for appellants.

John L. Hamaker, with him J. Marlin Shreiner, for appellees.

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

Author: Musmanno

[ 371 Pa. Page 243]

OPINION BY MR. JUSTICE MUSMANNO

In 1947 the School Board of the Borough of Ephrata, which has 8,000 inhabitants, 2 elementary schools and a high school, ordered a school census for the purpose of determining its future school building requirements. From this census it was calculated that by the beginning of the 1952-53 term, another school building containing three rooms for three grades and accommodating from 60 to 65 students would be required. For the 1953-54 term 3 more rooms would be needed.

On July 10, 1950, the School Board met and decided to purchase the land of the plaintiffs, known as the Winger Farm, for the school building intended, and to this end offered the owners of the farm, the plaintiffs in this case, $22,500, which the plaintiffs declined. On December 4, 1950, the School Board met again in this matter and adopted a resolution authorizing the acquisition by condemnation proceedings of the property in question, which embraced 54.894 acres.

The plaintiffs filed a bill of complaint in the Lancaster County Court of Common Pleas for an injunction restraining the School Directors of the School District of the Borough of Ephrata and the School District of the Borough of Ephrata, more conveniently referred to herein as the School Board, from initiating eminent domain proceedings against the Winger Farm. The Bill of Complaint was dismissed and an appeal to this Court followed.

The Public School Code of 1949, P.L. 30, Art. VII, sec. 703 (24 P.S. sec. 7-703) provides inter alia that:

[ 371 Pa. Page 244]

"... the board of school directors of each district is hereby vested with the necessary power and authority to acquire, in the name of the district, by... condemnation... any and all such real estate, either vacant or occupied,... as the board of school directors may deem necessary to furnish suitable sites for proper school purposes for said district..."

The appellants do not question, and indeed cannot question, that the School Board has the power by this statute and under the Constitution of the Commonwealth itself, to take private property for school building purposes. They do, however, challenge the extent of that power, and properly so. There is no authority under our form of government that is unlimited. The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders, commands or directives are not subject to review. The power of eminent domain, next to that of conscription of man power for war, is the most awesome grant of power under the law of the land. Article 1, Section 10 of our Pennsylvania Constitution, declares: "... nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured."

It is to be emphasized, however, that the restriction in this clause is not limited to the guarantee of just compensation. The condemnation may not take place at all without authority of law.

Did the School Board of Ephrata have authority of law to take 55 acres of land for a school building which ...


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