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PRICE v. SMITH (03/16/65)

decided: March 16, 1965.

PRICE, APPELLANT,
v.
SMITH



Appeals from judgments and decrees of Court of Common Pleas of Lehigh County, April T., 1963, No. 254, Mandamus, and April T., 1963, No. 3, Equity, in case of Walter W. Price and Walter M. Price v. Walter Smith, LeRoy Fahringer and Harvey L. Heist, comprising Board of Supervisors of Hanover Township.

COUNSEL

James C. Lanshe, for appellants.

James N. Diefenderfer, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Jones joins in this opinion.

Author: Musmanno

[ 416 Pa. Page 561]

On January 31, 1963, Walter W. Price and Walter M. Price, plaintiffs in this case, purchased for $5,000 a certain piece of land in Lehigh County for the purpose of operating a truck rental agency and a used auto part business which would necessitate storing thereon used automobiles from which parts could be removed and sold. The land, except for 40-60 feet, was located in Hanover Township. At the time of the purchase, an ordinance (hereinafter referred to as Ordinance No. 7) of the township provided for "regulating junk dealers and the establishment and maintenance

[ 416 Pa. Page 562]

    of junk yards and scrap yards, including, but not limited to, automobile junk or grave yards; providing for permits for engaging in business as a junk dealer and for operating, establishing and maintaining of junk yards."

On February 4, 1963, the plaintiffs applied, under that ordinance, for a permit to conduct a so-called auto graveyard on the premises. Then on February 16, 1963, they applied for a building permit to erect on the same premises a temporary structure for conducting their truck rental agency. The building permit was immediately allowed. Then, on March 7, 1963, the township board of supervisors rejected the plaintiffs' application, under Ordinance No. 7, for the operation of a junk yard, and, contemporaneously, revoked the building permit already granted. The reasons given by the township for these decisions was that the plaintiffs were preparing to engage in a business which would be inimical to the provisions of a new zoning ordinance which was in the process of enactment and which eventually was enacted on May 6, 1963.

The plaintiffs filed a mandamus action in the Court of Common Pleas of Lehigh County to compel the township to issue the applied-for permits. They also filed an action in equity seeking to have Ordinance No. 7 declared unconstitutional and its application restrained. The Court upheld the constitutionality of Ordinance No. 7, the refusal of the issuance of a permit thereunder, and the revocation of the building permit. The plaintiffs appealed in both cases, the appeals being consolidated here for argument and disposition.

We affirm that portion of the lower court's holding in both cases that Ordinance No. 7 was a valid and constitutional exercise of police power, that it was a proper regulatory measure, bearing a reasonable relationship to the protection of the health, safety, morals

[ 416 Pa. Page 563]

    and general welfare of the public, and that it was not discriminatory or arbitrary, nor were the standards therein set forth so vague and indefinite that uniform application could not be assured. We also affirm the decision of the court below that the refusal of a permit under Ordinance No. 7 was not an abuse of the board's discretion and that the plaintiffs may not, ...


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