Appeal from judgment of Court of Common Pleas of Dauphin County, No. 495 Commonwealth Docket 1963, in case of Commonwealth ex rel. Walter E. Alessandroni, Attorney General v. Borough of Confluence, Thomas A. Courtney, Mayor, Wendell Yeagley, councilman et al.
Joseph N. Cascio, with him Robert I. Boose, and Fike, Cascio & Boose, for appellants.
Carl L. Mease, Assistant Attorney General, with him Thomas W. Corbett, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, 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 dissenting opinion.
On May 11, 1961, after hearing, the Sanitary Water Board of the Commonwealth ordered that: "(1) the Borough of Confluence, Somerset County, shall discontinue its discharge of untreated sewage to the Casselman River within 2 years; (2) the Borough of Confluence, Somerset County, shall take immediate steps for the construction of such sewage treatment works as may be necessary for the treatment of its sewage".*fn1
On August 12, 1963, as a result of the apparent failure of the appellants to comply with the order, the Commonwealth on relation of the Attorney General at the instance of the Sanitary Water Board commenced
this action of mandamus, seeking to require appellants to take immediate steps for the construction of such sewage treatment as may be necessary for the treatment of its sewage.*fn2 Appellants answered the complaint in mandamus by alleging that they were willing to comply with the order and had taken immediate steps to comply therewith, but their efforts were frustrated because of their inability to raise the necessary funds for the construction of a sewage treatment plant by any method authorized by law. The Commonwealth thereafter moved for a summary judgment under Pa. R. C. P. 1098. After an answer was filed by appellants and argument on the motion was heard, the court below, in the exercise of its discretion, entered a judgment in essence commanding the appellants: (1) to discontinue the discharge of sewage into the waters of the Commonwealth and (2) to construct such sewage treatment works as may be necessary for the treatment of sewage. Appellants now appeal to our Court from the action of the lower court maintaining that mandamus should not issue where it is apparent that the writ will be futile and ineffectual by reason of the inability of a respondent to comply therewith, and cites as their authority: Commonwealth ex rel. McLaughlin v. Erie County, 375 Pa. 344, 100 A.2d 601 (1953).
The Erie case is readily distinguishable from the present situation. In that case we were confronted with the problem of authorizing the allocation of money from a fund which was no longer in existence. Of course, under those circumstances, a judgment in mandamus compelling the payment of moneys from a non-existent
fund would be a "futile and ineffectual" act. However, the judgment entered in the Erie case is vastly different from the judgment entered in this case.*fn3 Here, the principal effect of the judgment entered by the court below was to direct the Borough of Confluence to cease and desist the discharge of sewage into the Casselman River because such discharge was polluting the waters of the Commonwealth. In addition, the court below ordered the appellants to construct facilities for the treatment of such sewage.
The appellants' allegation that it is not financially feasible at this time for them to construct sewage treatment works is not a sufficient basis to sustain their contention that a judgment in mandamus would be a "futile act". There is no indication in the pleadings that appellants have exhausted every possible avenue in an effort to find some way of financing this sewage construction. The problem of water pollution has deeply troubled our federal and state governments for many years. In response to these problems there have been and will continue to be a number of governmental programs designed to alleviate these conditions. New methods of financing in this area are being developed constantly for those who heretofore have been unable to raise the ...