Appeal from order of Court of Common Pleas of Northampton County, Nov. T., 1963, No. 8, in case of Frederick W. Ward, William G. Johnson, Jay R. Golden et al. v. Bethlehem City Area School District.
E. Jerome Brose, with him Danser, Brose & Poswistilo, for appellants.
Walter W. Shearer, with him Ralph W. Barthold, F. Eugene Reader, and Rhoads, Sinon & Reader, for school district, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this opinion.
This is an appeal from the order of the lower court sustaining preliminary objections to plaintiffs' complaint in equity and dismissing that complaint for want of jurisdiction.
On March 25, 1963 the School Directors of the Bethlehem City Area School District, a union district, adopted a resolution signifying a desire to increase its debt by $8,000,000. The amended "Public School Code of 1949" and the amended "Municipal Borrowing Law" both provide that such an increase must be approved by the electors in the school district. Act of March 10, 1949, P. L. 30, § 632, as amended, 1961, February 28, P. L. 57, § 1, 24 P.S. § 6-632, Act of June 25, 1941, P. L. 159, § 203(b), as amended, 1961, February 28, P. L. 59, § 1, 53 P.S. § 6203(b). Accordingly, the proposed increase was submitted to the electors of this union district at a public election held on May 21, 1963.
On the same date, May 21, 1963, the electors of this union district and the electors of the Hanover
Township School District voted, pursuant to the "Public School Code of 1949," on the question of whether or not the former district should be enlarged to include the latter. Act of March 10, 1949, P. L. 30, § 251, as amended, 1959, December 30, P. L. 2088, § 1, 24 P.S. § 2-251.
Both questions were resolved affirmatively. A majority of the electors of the union district authorized an increase of the debt. Also, a majority of the electors of the union district and a majority of the electors of the Hanover Township School District voted that the former should be enlarged to include the latter.
On September 16, 1963, the Board of School Directors of the Bethlehem City Area School District (then including what had theretofore been the Hanover Township School District) adopted a resolution to advertise for sale general obligation bonds based upon the electoral vote of May 21, 1963. On October 14, 1963, plaintiffs, taxpayers of Bethlehem and Hanover Townships, filed a complaint in equity in the Court of Common Pleas of Northampton County against the Bethlehem City Area School District seeking a decree that the proposed sale and issuance of the bonds was invalid and an injunction against the defendant, its agents, etc. to restrain the issuance, sale, etc. of the bonds. The ground of the complaint was that the debt increase represented by the proposed bonds could not be incurred without approval of the electors of the defendant district, pursuant to the statutes cited in the second paragraph of this opinion, and such approval had never been obtained.
Defendant filed a preliminary objection to the complaint raising a question of the lower court's jurisdiction in the matter. The theory of the objection is that plaintiffs' complaint contests the validity of the May 21, 1963 election in which a majority of the electors
of the former union school district of the Bethlehem City Area authorized the debt increase, pursuant to which election the proposed bonds are to be issued. Jurisdiction over such a contest, defendant argues, has been placed by statute exclusively in the court of quarter sessions. The statute cited for this proposition is § 205 of the "Municipal Borrowing Law" which provides, inter alia: ". . . Any interested party or any taxpayer may contest the validity of any election proceedings under this section 205 by filing, within sixty (60) days from the date of the election and not thereafter, a petition in the court of quarter sessions of the county wherein the municipality is located, specifically alleging the error or errors complained of in the proceedings, in the manner required of bills in equity, and the appellant shall have the burden of proof: Provided, however, That if the proceedings required by Article III of this act have been approved by the Department of Internal Affairs, such petition shall be filed in the Court of Common Pleas of Dauphin County. When any election has been held to obtain the assent of the electors of any municipality under this section 205 and no such petition has been filed within said period of sixty (60) days from the date of the election, or such petition having been filed shall have been finally dismissed, such election shall be conclusively deemed to be valid for all purposes, except where a constitutional question is involved." 1941, June 25, P. L. 159, § 205(g); 1943, May 21, P. L. 500, § 1; 1951, June 29, P. L. 949, §§ 1, 2, 53 P.S. § 6205(g).
Plaintiffs have admitted that there was an election on May 21, 1963 in which the electors of the Bethlehem City Area School District, as it existed before the joinder of Hanover Township School District, authorized a debt increase. Those plaintiffs who were not then residents of the Bethlehem City Area School
District do not contend that they had any right to participate in that election. Nor do any of the plaintiffs contend that the manner in which that election was conducted was invalid. Rather, their answer to the preliminary objection is that there was no election which could support the proposed bond issuance by the Bethlehem City Area School District as it exists now, i.e., including Hanover Township School District, because there was no election in which the electors of Hanover Township School District had an opportunity to vote on the matter. Such an election, they contend, is required by the amended "Public School Code of 1949" which provides that "the assent of the electors shall be required in all school districts of the second, third, and fourth class, to issue bonds which will incur any new debt or increase the indebtedness. . . ."
The lower court sustained the preliminary objection and dismissed the complaint on the ground that plaintiffs were contesting the validity of the May 21, 1963 election and jurisdiction over such a contest was, by statute, exclusively vested in ...