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BUTLER TOWNSHIP APPEAL (04/28/70)

decided: April 28, 1970.

BUTLER TOWNSHIP APPEAL


Appeal from order of Court of Common Pleas of Butler County, Sept. T., 1965, No. 1, in re creation of additional ward in Butler Township.

COUNSEL

Leo M. Stepanian, with him Brydon, Stepanian, O'Brien & Cook, for appellant.

Richard L. McCandless, with him Coulter, Gilchrist, Dillon & McCandless, for commission, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result.

Author: Pomeroy

[ 438 Pa. Page 303]

In July, 1965, certain residents of the Sixth Ward of Butler Township petitioned for the creation of a new ward out of and from the present Sixth Ward. The court appointed a three man commission "to look into the propriety of granting the prayer" and to report to the court. The commission filed its report November 15, 1966, which recommended a combination of the Fifth Ward with the Second Ward, thus reducing the number of wards from six to five. The report was confirmed nisi. Exceptions were filed by various parties, including Butler Township, the appellant. After hearing, the court on December 30, 1966, referred the matter back to the commission for consideration and recommendation to the court on the feasibility of "reapportioning the wards" of Butler Township so as to elect all or part of the township commissioners at large. On February 14, 1967, the commissioners filed an amended

[ 438 Pa. Page 304]

    report which was thereupon confirmed absolutely, the court ordering that Butler Township be divided so that there be five commissioners, all of whom should be elected at large.*fn1 Following the remand from this Court as noted in the margin, exceptions were filed to the amended report, hearing was had thereon, and a new final order entered on February 6, 1969. By this order of the court the six wards of Butler Township were consolidated into one ward with five commissioners, all of whom are to be elected at large, in accordance with a schedule contained in the order.*fn2 The order was accompanied by an opinion of the same date, which was supplemented on March 7, 1967. The case is now before us on appeal from the order of consolidation.*fn3

In its first opinion in this matter, filed February 24, 1967, the court spelled out its reasons for concluding

[ 438 Pa. Page 305]

    that the election of commissioners at large, rather than on the basis of division into wards, was the best plan for Butler Township. It found that the conditions that existed when Butler Township was divided into wards more than thirty years ago had changed; that a tremendous increase in population had occurred; that some populated areas originally isolated by topography had become contiguous; and thus that the main basis for the present ward system had been eliminated. He found that "[t]he geographic arrangement and the population concentration make it impossible to continue a ward system that is fair to all areas." In its opinion dated February 6, 1969, the court further concluded that the "at large" plan was the only one that would conform, without question, to the one man -- one vote requirement of the Federal Constitution. This was further delineated in the court's supplemental opinion dated March 7, 1969.

There is no challenge to the reasonableness or fairness of this decision, and so we are not obliged to review the demographic and geopolitical factors or the Fourteenth Amendment considerations which form the basis of the court's order. Appellant contends, however, that the court exceeded its authority in making the order, both under The First Class Township Code*fn4 and under Article IX, Section 11 of the Pennsylvania Constitution.

It is true that the original petition herein merely requested that a new ward be carved out of the existing Sixth Ward, so that the number of wards would be increased by one; the petition did not contemplate consolidation of wards or lessening the total number. We conclude, however, that this ...


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