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decided: June 30, 1965.


Appeals from decree of Court of Common Pleas of Allegheny County, July T., 1964, No. 2679, in case of Chartiers Valley Joint Schools, School District of Borough of Bridgeville, School District of Borough of Heidelberg et al. v. County Board of School Directors of Allegheny County, Dr. A. L. Valter, Dr. L. W. Earley et al.; and No. 226 Miscellaneous Docket, special certiorari to Court of Common Pleas of Dauphin County, Commonwealth Docket No. 242, 1964, Equity Docket No. 2463, in case of School District of Township of Upper Merion, School District of Borough of Bridgeport, School District of Borough of West Pittston et al. v. Charles H. Boehm, Superintendent of Public Instruction and Chief Executive Officer of State Board of Education, Council of Basic Education of Commonwealth of Pennsylvania, Thomas E. Minehart, Auditor General, et al.


John A. Robb, with him Emerson G. Hess, Jr., and Royston, Robb, Leonard, Edgecombe & Miller, and Hess, Hess & Bagley, for appellants, in No. 24.

Bernard G. Segal, with him Thomas B. Rutter, Ralph S. Snyder, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for intervenor-appellants, in No. 24, and for plaintiffs, in No. 226.

John B. Nicklas, Jr., with him Alan Miles Ruben, Deputy Attorney General, and McCrady & Nicklas, for appellees, in No. 24.

Walter E. Alessandroni, Attorney General, with him Byron H. LeCates, Assistant Attorney General, John P. McCord, Edward Friedman and Alan Miles Ruben, Deputy Attorneys General, for Commonwealth, amicus curiae, in No. 24, and for defendants in No. 226.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Cohen.

Author: Roberts

[ 418 Pa. Page 523]

These two cases contest the validity of the School Reorganization Act of 1963*fn1 when tested against the provisions of the Constitution of Pennsylvania.

In the first case, four school districts*fn2 and two Pennsylvania taxpayers*fn3 filed a complaint in equity on May 5, 1964 in the Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, naming as

[ 418 Pa. Page 524]

    defendants the Superintendent of Public Instruction, in that capacity and as chief executive officer of the State Board of Education, the Auditor General, the State Treasurer, and the Council of Basic Education. The complaint asserted that the School Reorganization Act*fn4 violated, in several respects, the Constitution of Pennsylvania and sought a decree declaring the Act unconstitutional, void, and unenforceable. More specifically, plaintiffs sought to restrain defendants: (1) from expending state funds for enforcement and effectuation of the Act; (2) from authorizing the payment of funds to any school district pursuant to the Act; (3) from approving, authorizing, or implementing any plan of reorganization pursuant to the Act; and (4) from performing any other action to enforce or effectuate the Act.

After the court below refused to grant the preliminary injunction, defendants filed preliminary objections. Before argument was heard on the objections, however, plaintiffs filed in this Court a petition for a special writ of certiorari which requested that their case be consolidated with Chartiers Valley Joint Schools v. Alleg. County Bd. of School Directors, a similar case already docketed on appeal in this Court.*fn5 We granted this petition.*fn6

In the Chartiers Valley case, several plaintiffs filed a complaint on June 1, 1964 in the Court of Common Pleas of Allegheny County against the Allegheny County Board of School Directors and others. The complaint challenged the constitutionality of the School Reorganization Act of 1963 and sought a decree declaring

[ 418 Pa. Page 525]

    that Act invalid. In the alternative, plaintiffs sought to enjoin the submission of a plan of school district reorganization which had been formulated by certain county officials pursuant to provisions of the Act. Preliminary objections to the Chartiers Valley complaint were sustained and the complaint was dismissed. Plaintiffs then filed an appeal in this Court.

We turn first to consideration of the appeal in the Upper Merion Township case.


As we have noted, before the case was brought here, defendants in the Upper Merion Township case filed preliminary objections which were not disposed of by the court below because we granted special certiorari. These objections, which must now be passed upon before reaching plaintiffs' constitutional attack on the Act, are four in number: (1) plaintiffs lack standing because of their failure to allege any present damage or injury and because the statute has not been brought into operation so as to impinge upon plaintiffs' rights; (2) plaintiffs have failed to exhaust their statutory remedies; (3) plaintiffs have failed to join as defendants the State Board of Education and the Montgomery and Luzerne County Boards of School Directors, who defendants assert are necessary and indispensable parties; and (4) plaintiffs are guilty of laches.

If none of these objections apply to any one of the plaintiffs then the merits of the case must be reached. We conclude that none of the objections prevent the taxpayer plaintiffs from raising the constitutional issue. Both the first and second objections are clearly inapplicable to the taxpayers' suit. With regard to defendants' first objection, the taxpayers have alleged the requisite financial injury to support their standing.*fn7

[ 418 Pa. Page 526]

As to the second objection, defendants allege only that the school district plaintiffs have failed to exhaust their statutory remedy. In light of the pertinent statutory language, it is clear why the same objection was not asserted, and could not have been successfully asserted, against the taxpayers' suit.*fn8 The third objection is also inapplicable to the taxpayer plaintiffs since the purpose of their suit is to prevent the expenditure of funds under the purported authority of an unconstitutional act (compare Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444 (1963)) and the proper parties to be enjoined are those who control such expenditures, i.e., the Auditor General and the State Treasurer.*fn9 Finally, as to the fourth objection, the allegation is simply that plaintiffs are guilty of laches because they waited until nearly nine months after passage of the Act before

[ 418 Pa. Page 527]

    bringing their suit. Defendants allege no equitable considerations in support of their contention and we conclude that the objection has no merit.

It is not necessary to decide whether any of defendants' preliminary objections would be meritorious when applied to the school district plaintiffs. Since the various preliminary objections raised by defendants must fail, at least in so far as taxpayer plaintiffs are concerned, we are compelled to turn to the constitutional issues raised by the pleadings.*fn10


When, as here, the constitutionality of so important a statute as the School Reorganization Act of 1963 is challenged, it is not unexpected that the attack is premised upon a number of constitutional provisions. Plaintiffs' principal contention is that the Act embodies an unlawful delegation of legislative power, thereby violating Article II, § 1 of the Constitution of Pennsylvania which provides: "The Legislative power of the Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives."

Before reaching the merits of plaintiffs' contentions on this ground, however, further elaboration is called for with regard to the operation of the Act and the effectuation of its purposes through the exercise of administrative responsibility.

Section 291*fn11 provides: "The State Board of Education, within ninety (90) days of the effective date of this amending Act, shall adopt standards for approval

[ 418 Pa. Page 528]

    of administrative units, taking into consideration the following factors: topography, pupil population, community characteristics, transportation of pupils, use of existing school buildings, existing administrative units, potential population changes and the capability of providing a comprehensive program of education." Plaintiffs assert that this constitutes a patently unconstitutional delegation of legislative power to the State Board of Education and that the "factors" which the Legislature directs the Board to consider do not qualify as the required statutory standards since they are simply neutral concepts.

Section 292*fn12 of the Act directs that after the State Board has drawn up its standards for reorganization, each county board of school directors shall prepare a plan of administrative units for the county, conforming to the standards for approval of administrative units adopted by the State Board under Section 291.

When the Department of Public Instruction determines that a plan submitted to it conforms to the standards adopted by the State Board, Section 293*fn13 directs the Department to place the plan on the agenda of the Council of Basic Education. The Council is then directed to review the plan and "approve such plans as it deems wise in the best interests of the educational system of the Commonwealth." This standard of review, the plaintiffs assert, is unconstitutional in that it is far too flexible and, as a result, is no standard at all.

In summary, then, plaintiffs' attack on this Act with respect to the non-delegation rule centers upon

[ 418 Pa. Page 529]

    three aspects of the Act: (1) the direction to the State Board that it formulate standards for proper reorganization, (2) the inadequacy of the "factors" which the State Board must consider in preparing its standards, and (3) the provision which directs the Council of Basic Education to "approve such plans ...

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