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LUTZ v. ARMOUR (05/08/59)

May 8, 1959

LUTZ
v.
ARMOUR, APPELLANT.



Appeal, No. 213, March T., 1958, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 16, in case of Robert L. Lutz et al. v. H. T. Armour et al. Decree affirmed.

COUNSEL

John A. Metz, Jr., with him David Friedman, and Metz, Cook, Hanna & Kelly, for appellants.

William W. Milnes, with him Paul W. Brandt, and Brandt, Riester, Brandt and Malone, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.

Author: Cohen

[ 395 Pa. Page 577]

OPINION BY MR. JUSTICE COHEN

The plaintiffs-appellees operated a garbage collection and disposal business in the Township of Findlay for approximately fourteen years with the approval of the township commissioners. They have contracts with surrounding municipalities and townships providing for garbage removal and disposal on their land. In addition, numerous pieces of garbage removal equipment and storage facilities have been furnished by the appellees. Their land is situated one to three miles from the nearest neighbors and is principally a series of abandoned strip mine locations. They had been granted licenses to operate by the Township of Findlay and also have licenses from Allegheny County and the Bureau of Mines of the Commonwealth of Pennsylvania.

[ 395 Pa. Page 578]

On September 4, 1956 the Township of Findlay enacted Ordinance No. 13 pursuant to the Second Class Township Code as amended by the Act of July 1, 1955, P.L. 249, § 1 et seq., 53 P.S. § 65708 which permits a second class township to "regulate or prohibit the dumping or otherwise depositing of ashes, garbage, rubbish and other refuse materials within the township." The enacted ordinance permits the collection of garbage, rubbish, waste material or ashes within Findlay Township and the operation of garbage disposal facilities. However, Section 13 of the ordinance prohibits the hauling and disposition into Findlay of any of those materials which originate "from without the township."

The plaintiffs-appellees were arrested and fined for violation of Section 13 of the ordinance. The appellees then instituted this action in equity to enjoin the enforcement of the ordinance. The court granted a preliminary injunction, which became permanent after the chancellor's adjudication that Section 13 was unconstitutional in its application to the appellees. The Township of Findlay filed exceptions which were dismissed by the court en banc. This appeal followed.

It is a well established principle in our law that an act passed by a legislative body is presumed to be constitutional. Loomis v. Phila. School District Board of Education, 376 Pa. 428, 103 A.2d 769 (1954); Mountainville Election District's Annexation, 304 Pa. 559, 156 Atl. 162 (1931). This presumption of constitutional validity applies with equal force to ordinances. Bilbar Construction Co. v. Easttown Twp. Board of Adjustment. 393 Pa. 62, 141 A.2d 851 (1958). Nevertheless, as was said by Mr. Chief Justice HORACE STERN: "By a host of authorities, Federal and State alike, it has been held that a law which purports to be an exercise of the police power must not be unreasonable,

[ 395 Pa. Page 579]

    unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations." (Emphasis supplied). Gambone v. Commonwealth, ...


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