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NESTER APPEAL. (09/11/58)

September 11, 1958

NESTER APPEAL.


Appeal, No. 106, Oct. T., 1958, from order of Court of Quarter Sessions of Montgomery County, June T., 1957, No. 13, in re petition of electors of Borough of Pottstown and of the ten wards therein for reapportionment and consolidation of said wards. Order affirmed.

COUNSEL

Victor J. Roberts, with him High, Swartz, Childs & Roberts, for appellant.

Malcolm Campbell, with him C. Edmund Wells, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. Hirt, J., absent).

Author: Woodside

[ 187 Pa. Super. Page 314]

OPINION BY WOODSIDE, J.

A petition was presented to the Court of Quarter Sessions of Montgomery County by the requisite number of electors of the Borough of Pottstown, alleging that the borough's twenty member council is the largest legislative body in the Commonwealth excepting only the General Assembly, and praying that under the Act of May 4, 1927, P.L. 519, § 601 et seq., as amended by The Borough Code of July 10, 1947, P.L. 1621 and subsequent acts, 53 PS § 45601 et seq., the existing ten wards be consolidated.

Raymond F. Nester, a citizen and resident of the borough, filed a petition under the Act of March 5, 1925, P.L. 23 (12 PS § 672), asking that the electors' petition be dismissed for lack of jurisdiction on the ground that the statutory provision authorizing the court to consolidate the borough wards is unconstitutional.

The court below, in a well considered opinion by Judge GERBER, refused to dismiss the electors' petition. Nester, thereupon, appealed to this Court.

[ 187 Pa. Super. Page 315]

The provisions of The Borough Code under which the petition was presented are as follows: "The court of quarter sessions, upon petition, may divide boroughs into wards, erect new wards out of two or more adjoining wards or parts thereof, consolidate two or more wards into one ward, divide any ward already erected into two or more wards, alter the lines of any two or more adjoining wards, cause the lines or boundaries of wards to be ascertained and established, or abolish all wards." Section 601, 53 PS § 45601.

"The petition shall be presented by the council of the borough pursuant to a resolution of the council, or by at least five per centum of the registered electors of the borough, or in case of a proposal to divide the borough into wards or to abolish all wards, or by at least five per centum of the registered electors of the ward or wards whose limits it is proposed to change, as the case may be. Upon its presentation, the court shall appoint three impartial persons as commissioners to inquire into the propriety of granting the prayer in the petition. The commissioners, or any two of them, shall make a report to the court, within sixty days after their appointment and shall accompany it with a plot, showing the boundaries of the proposed wards of the borough, or the wards before and after the proposed change, as the case may be, whenever the same cannot be fully designated by natural lines." Section 602, 53 PS § 45602.

The question we are asked to decide is whether the above provisions of The Borough Code authorizing the court of quarter sessions to "divide boroughs into wards ... or abolish all wards" is a delegation of legislative power in ...


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