Appeal to the Court of Common Pleas of Dauphin County at No. 254 C.D. 1969, in case of State Board of Education v. Manheim Township School District. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
John I. Hartman, Jr., with him Windolph, Burkholder & Hartman, for appellant.
Benjamin Frank, Assistant Attorney General, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino. Dissenting Opinion by Judge Crumlish, Jr.
In State Board of Education v. South Middleton Township School District, 430 Pa. 457, 243 A.2d 350 (1968), the Supreme Court reaffirmed the principle announced in Esbenshade v. Department of Public Instruction, 181 Pa. Superior Ct. 232, 124 A.2d 478, aff'd. on opinion of court below, 387 Pa. 281, 127 A.2d 678 (1956), i.e., that the action of the State Board of Education in granting or refusing to grant an application for the change of boundary lines in a school district after land in that district has been annexed by another governmental unit is not subject to judicial review.
Appellant contends that Article V, Section 9,*fn1 of the Constitution of Pennsylvania adopted in 1968, effective January 1, 1969, now mandates a different result. Justice Pomeroy, in Smethport Area School District v. Bowers, 440 Pa. 310, 314, 269 A.2d 712, 715 (1970), stated: "This [Section 9] introduced a new concept to Pennsylvania jurisprudence, one which recognized the important position of administrative agencies in modern government, the quasi-judicial functions that many of them perform, and the fact that both property rights and personal rights can be seriously affected
by their decisions. This section was not, of course, self-executing, and on December 2, 1968 the General Assembly adopted four statutes designed to implement it. They were Acts Nos. 351, 353, 354, and 355."
Act No. 354 is an amendment to the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.1 et seq., and provides for appeals from "agencies of the Commonwealth," as defined by that law. Section 51, 71 P.S. § 1710.51, after passage of Act No. 354, states that "all of the provisions of this act shall apply to . . . (6) State Board of Education." In the instant case, Manheim Township School District, appellant, seeks review of a decision of the Council of Basic Education which was affirmed by the State Board of Education.*fn2 This appeal by appellant follows the enactment of implementing Act No. 354 and the effective date of the new Judiciary Article which provides, in Section 9 thereof, that there shall be a right of appeal "from an administrative agency to a court of record or to an appellate court." The appellant must overcome the settled decisional law that the State Board of Education is a non-judicial agency, the orders of which are not judicial in nature and may not be reviewed by the courts; also, that an order entered by the State Board of Education, in performance of its duties and powers under §§ 227 and 228 of the Public School Code of 1949,*fn3 is not an adjudication within the meaning of the Administrative Agency Law. Esbenshade v. Department of Public Instruction, supra.
We conclude that appellant cannot overcome the law established in Esbenshade and that its appeal in the instant case must be dismissed.
The Legislature, when it enacted Act No. 354, could have declared, but did not, that an annexation determination
by the Council of Basic Education, an adjunct and arm of the State Board of Education, is judicial in nature and adjudicative. Its failure to do so indicates an acceptance of previous interpretations by the courts in regard to these matters and creates a presumption that such previous interpretations are in accord with legislative intent. Comm. v. Willson Products, 412 Pa. 78, 194 A.2d 162 (1963). In Lock Estate, 431 Pa. 251, 262, 244 A.2d 677, 682 (1968), the Court, in its opinion, stated: "The Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 52, 46 P.S. § 552 provides in part as follows: 'In ascertaining the intention of the Legislature in the enactment of a law, the courts may be guided by the following presumption among others: . . . (4) That when a court of last resort has construed the language used in a law, the Legislature in subsequent laws on the same subject matter intend [sic] the same construction to be placed upon such language; . . .' It has been held, and rightly so, that where a decision of the Superior Court construing a statute was never modified by the Supreme Court, the presumption was that when the legislature subsequently enacted a similar statute dealing with the same subject matter, the legislature intended the same construction to be placed on the language of the subsequent statute. Duquesne Club v. Pittsburgh, 170 Pa. Superior Ct. 426, 87 A.2d 81 (1952); Toland v. Murphy Brothers, 172 Pa. Superior Ct. 484, 94 A.2d 156 (1953)."
An understanding of the impact of Esbenshade v. Department of Public Instruction, supra, on this appeal can best be achieved by a brief summary of the relevant events preceding the appeal. In 1952, a farm containing approximately 132 acres was annexed from Manheim Township, Lancaster County, to Lancaster City, for municipal purposes. On November 4, 1955, annexation of this land to the City, for school purposes, was denied
by the State Council of Education,*fn4 under the provisions of Section 228 of the Public School Code of 1949, 24 P.S. § 2-228. A second denial followed on February 26, 1958. In 1967 the Council of Basic Education was asked to reconsider the decision of the State Council of Education, and on July 10, 1968, the Council rendered an affirmative decision and approved annexation of said 132 acres to Lancaster City School District. Appellant appealed this decision to the State Board of Education which, on March 14, 1969, upheld the decision of the Council of Basic Education, and thereafter appellant, on April 11, 1969, took this instant appeal.
An examination of the School Code will reveal that no right of appeal from the action of the State Board of Education was given in this type of matter, although in many other matters it is expressly given. Where the legislation is silent as to the right of appeal or does not say that the decision of the administrative agency shall be non-appealable, an appeal may be taken in the nature of broad certiorari. Delaware County National Bank v. Campbell, 378 Pa. 311, 106 A.2d 416 (1954). However, the precondition to review by certiorari is that the order or action of the agency, board or commission must be judicial in nature and final. Keystone Raceway Corporation v. State Harness Racing Commission, 405 Pa. 1, 173 A.2d 97 (1961); Ritter Finance Co., Inc. v. Myers, 401 Pa. 467, 165 A.2d 246 (1960).
This requirement of judicial in nature returns us to Esbenshade v. Department of Public Instruction, supra, where it was ...