Appeal, No. 21, March T., 1956, from order of Court of Common Pleas of Dauphin Co., Commonwealth Docket, 1954, No. 52, in case of Elmer L. Esbenshade and The School District of Lancaster, Pennsylvania, v. Department of Public Instruction, State Council of Education. Order affirmed.
Robert H. Maurer, with him Theodore L. Brubaker, Solicitor, School District of Lancaster, and McNees, Wallace & Nurick, for appellants.
Harry L. Rossi, Deputy Attorney General, with him Elmer T. Bolla, Deputy Attorney General, and Herbert B. Cohen, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.
[ 181 Pa. Super. Page 234]
This appeal is concerned with the refusal of the State Council of Education to approve the extension of the boundaries of the School District of the City of Lancaster by the annexation of a separate parcel of land located in Manheim Township, Lancaster County, which had been annexed by ordinance of the City of Lancaster. In this particular case we are concerned with the Esbenshade tract of approximately 127 acres, with an assessed valuation of $37,000.00, from which nine children presently attend the Manheim Township schools. This tract of ground is basically commercial and industrial. In the brief of the Manheim Township School District presented to the State Council it is stated: "Since the City's annexation of this land over a year ago, Mr. Esbenshade has sold 32 of his 127 Acres to Aluminum Company of America, for an industrial plant, and has granted an option for 31 Acres more for another still unidentified industry, thus definitely removing 63 of the 127 Acres from any future possibility of contributing school children." This tract is one of 48 separate tracts which the City of Lancaster over the past seven years has annexed or attempted to annex. In 1947 the City took from the township the main Armstrong Cork Company plant and several smaller properties, with an aggregate assessment of $3,476,500.00, and under the law in force at that time this annexation automatically changed the
[ 181 Pa. Super. Page 235]
school district lines and enriched Lancaster City School District and impoverished Manheim Township School District accordingly. The annexed land was entirely industrial, without residents or school children, and therefore the annexation left the township school district with as many pupils to educate as before on only 71 per cent of its former tax base of assessed value. Neither the State Council of Education nor any other tribunal had any power at that time to review the propriety of, or to restrain, the annexation so far as the school district boundaries were concerned, since Manheim Township School District was and is a third-class school district, and the State Council's jurisdiction over annexations extended only to fourth-class districts.
We believe that because of this hardship and similar ones throughout the state, the legislature passed the Act of 1949, P.L. 1089, 24 PS §§ 2-227, 228, amending §§ 227 and 228 of the School Code so as to give the State Council the power which it now has to determine whether annexations for general municipal purposes affording better police and fire protection and water, sewer and garbage services, etc., should also be allowed to change third-class school district boundaries.
These amendments are as follows: "Section 227 .... Whenever ... an existing school district of the third or fourth class is affected by the annexation to a city ... of territory included within a school district of the third or fourth class, the clerk of the court or other proper officer shall, within ten days thereafter, make a certified copy ... of the decree of the court ... affecting such annexation, and mail the same to the Superintendent of Public Instruction, Department of Public Instruction, Harrisburg, Pennsylvania.
"Section 228. ... (a) If ... the part of a school district remaining after the separation would constitute
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a school district of the third or fourth class, the receipt of said certified copy shall be deemed an application for the ... change in the boundaries of an existing school district of the third or fourth class, and the Superintendent of Public Instruction shall, within sixty days thereafter, cause the State Council of Education to be convened. The council shall thereupon consider such application and determine whether such ... change in the boundaries of an existing school district of the third or fourth class, is desirable, and whether ...