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DAUGHERTY v. MESSNER. (06/26/61)

June 26, 1961

DAUGHERTY, APPELLANT,
v.
MESSNER.



Appeal, No. 147, March T., 1961, from decree of Court of Common Pleas of Washington County, No. 5668 in equity, in case of John W. Daugherty et al. v. Joseph Messner et al. Decree affirmed.

COUNSEL

Adolph L. Zeman, with him Robert L. Zeman, and Zeman & Zeman, for appellants.

Robert L. Ceisler, with him Thomas J. Terputac, for appellees.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 404 Pa. Page 236]

OPINION BY MR. JUSTICE BOK.

This is a process in equity to enjoin the Supervisors of Union Township, Washington County, from interfering with the plaintiffs' business of dumping garbage and to declare void an ordinance, adopted by defendants, regulating and prohibiting garbage dumps in the township. A preliminary injunction was given and a bond filed, but, after answer and hearing, the injunction was dissolved and the complaint dismissed. The plaintiffs appealed.

A man named Arnoni had dumped garbage in the township for nineteen years until he was brought up in court and as a result was dumping, in accordance with the latest approved methods, garbage brought from various neighboring townships. In January, 1960, defendants adopted the ordinance in question, prohibiting the expansion of Arnoni's dump and allowing him to continue, but also prohibiting the establishment of any

[ 404 Pa. Page 237]

    other dump in Union Township. Plaintiffs allege discrimination and unconstitutionality.

The problem is less one of the need to dump garbage or even the competitive right to do so than it is the power of the local authorities to control it. Considered in such terms there can be only one answer, for the public health is closely involved and the police power imminent.

The Legislature has put the right to regulate or prohibit the disposal of garbage into the hands of the townships by the Act of July 1, 1955, P.L. 249, 53 PS § 65708. The ordinance in suit, passed under the aegis of this Act, limits garbage disposal to Arnoni, presumably because he has been doing it so long and because he is operating under a court order which effectively compels him to bury the garbage by sanitary landfill or trench burial, the best and most modern method. In Lutz v. Armour, 395 Pa. 576 (1959), 151 A.2d 108, we held invalid, as arbitrary, an ordinance that forbade the disposal of garbage from outside townships while allowing it locally. Here Arnoni gets garbage from anywhere and disposes of it locally, which is a different situation. Plaintiffs urge that this is discriminatory and is a denial of the equal protection of the laws. They urge on us another section of The Second Class Township Code, in the Act of May 20, 1957, P.L. 174, 53 PS § 65712, where the Legislature empowers the township to "prohibit nuisances, including but not limited to, ...


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