Appeals, Nos. 175 and 176, Jan. T., 1960, from orders of Court of Quarter Sessions of Northampton County, June T., 1959, No. 13, in case of Commonwealth of Pennsylvania v. Paul Hanzlik et al. Orders affirmed.
Morris Mindlin, with him Mindlin and Sigmon, for Commonwealth, appellant.
John Watts Barrett, Jr., with him Butterfield, Barrett & Joachim, for appellees.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
These appeals are from the orders of the court below holding a section of a township ordinance unenforceable and finding the appellees not guilty of its violation.
Section 3b of the ordinance prohibits, inter alia, the storage of abandoned or junked automobiles and declares such storage to be a nuisance. In summary proceedings brought by the Township the appellees were found guilty of violating the ordinance, but on their appeals to the court of quarter sessions that section was held invalid because it was unreasonable, arbitrary and prohibitive and the defendant appellees were discharged.
The ordinance in question, enacted May 29, 1958, re-enacted and amended Ordinance No. 1 enacted April 1, 1950 by the Township. The principal amending feature was the inclusion of the following underlined portion of Section 3b: "Section 3. It shall be unlawful for
any person... b. To store, in any manner, abandoned or junked automobiles on any property, public or private within the Township;... The uses of property and the conduct, herein declared to be unlawful, are declared to be nuisances. The uses of property and the conduct, herein declared to be nuisances, shall not limit the general prohibition of nuisances, contained elsewhere in this ordinance."
The court below made the following findings of fact, all of which are amply supported by the evidence. From 1948 until at least December, 1955, appellee Paul Hanzlik stored junked automobiles on private property within the Township, sold parts therefrom, and sold the remainder as scrap. Following incorporation on December 27, 1955, the business previously operated by Paul Hanzlik individually has been continued by Paul Hanzlik, Inc. The business so conducted involves no loud noises, no offensive odors, attracts no vermin and is not injurious to the public. As the court below correctly pointed out, "In our case there was no testimony adduced from which we may find that the operation of appellant's [appellees' here] business constituted a nuisance in fact nor was there any testimony to the effect that conditions in the township generally made the business of storing junked or abandoned automobiles a nuisance."
A second-class township is but a political subdivision of the Commonwealth and has, therefore, only those powers which are granted it by the legislature. As a result, our inquiry must be directed to whether the legislature intended to give second-class townships the power to prohibit the storage of abandoned or junked automobiles whether or not such activity constitutes a nuisance in fact. The Township ordinances ...