Appeal, No. 28, March T., 1956, from final decree of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 1171, in case of Fred A. Schade et al. v. Allegheny County Institution District et al. Decree affirmed; reargument refused December 5, 1956. Equity. Before THOMPSON, J. Adjudication filed enjoining county institution district from making payments out of appropriations to charitable and religious institutions for support and maintenance of dependent children; exceptions to adjudication sustained in part and decree entered dismissing bill, before THOMPSON, ELLENBOGEN and KENNEDY, JJ., opinion by ELLENBOGEN, J., concurring opinion by KENNEDY, J., dissenting opinion by THOMPSON, J. Plaintiff appealed.
John A. Metz, Jr. with him Metz, McClure, Hanna & MacAlister, for appellant.
Maurice Louik, Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor, John F. Murphy, and Philip Baskin, Assistant County Solicitors, for defendants-appellees.
Joseph R. Doherty, with him McCloskey, Best & Leslie, for Eudes Institute et al., appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff taxpayers instituted the instant suit in an effort to enjoin the commissioners of Allegheny County, acting in their capacity as executives and administrators of the Allegheny County Institution District (a body corporate), from paying out funds of the Institution District for the support, care and maintenance of delinquent, neglected or dependent children placed by the Juvenile Court of Allegheny County in sectarian or denominational homes and institutions having the necessary facilities for the service required.
The plaintiffs alleged in their complaint that the Juvenile Court Law of Allegheny County of June 3, 1933, P.L. 1449, and the County Institution District
Law of June 24, 1937, P.L. 2017, are unconstitutional in that, and to the extent, they require or provide for the payment of tax revenues raised by Allegheny County for the use of the Institution District to denominational or sectarian institutions or homes for the board, care and maintenance of neglected or dependent children on order of the Juvenile Court of Allegheny County. The Institution District filed a responsive answer which, inter alia, denied that either the provisions or the administration of the cited statutes were unconstitutional. Before trial, the Commonwealth was permitted to intervene as a party defendant but filed no answer. During the trial, ten institutions named in the complaint as being sectarian or denominational recipients of the Institution District's questioned payments were brought upon the record as additional defendants by order of the chancellor; eight of them appeared and filed answers denying that they were sectarian or denominational. It was stipulated of record by respective counsel that the two non-appearing additional defendants were non-sectarian, and were consequently removed from the case.
Extensive testimony was adduced at trial, and a considerable number of documentary exhibits were received in evidence. In due course, the learned chancellor filed an adjudication wherein he severally concluded, as matter of law, that the additional institutional defendants were sectarian and denominational, that the payments of money made to them by the Institution District were in violation of the provisions of Article III, Section 18 of the Constitution of Pennsylvania and that such payments should be restrained for the future. A decree nisi was entered accordingly enjoining the Institution District, ...