Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Redivision of the Wards of Springfield Township, Delaware County, Pennsylvania, No. A-31P, 448 December Sessions, 1973.
Sondra K. Slade, with her Kimber E. Vought and, of counsel, Schnader, Harrison, Segal & Lewis and Crawford & Diamond, for appellant.
Francis R. Lord, with him Lord & Mulligan, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
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This is an appeal filed by the Board of Commissioners of Springfield Township (Township) from an order of the Court of Common Pleas of Delaware County,
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dated January 29, 1974, in which the court dismissed the Township's petition (and two other petitions of citizens who did not appeal to this Court) to dismiss a petition of Arthur G. Kahn, George A. Kurtz (also spelled Kutz in the record), and Alfred J. Simmons (collectively referred to as Kahn), praying for the redivision of existing wards of the Township of Springfield, and the creation of additional wards, if necessary.
Although Kahn argued before this Court for a distinction between the creation of the wards and the constitutionally mandated reapportionment of a township, it is clear that the Kahn petition seeks the latter. The petition and the record establish that according to the 1970 census for the Township, the population totaled 29,006 people. The last reapportionment for the Township occurred in 1967. It would appear that there is accord among all of the parties that there is a need for reapportionment to reach compliance with the provisions of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as described in such cases as Avery v. Midland County, Texas, 390 U.S. 474 (1968); Reynolds v. Sims, 377 U.S. 533 (1964); Butcher v. Bloom, 420 Pa. 305, 216 A.2d 457 (1966); and Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556 (1964). The Township is presently divided into seven wards which are malapportioned. Although the Board of Commissioners of Springfield Township was aware of the 1970 census for the Township, which was officially reported on December 1, 1970, it took no action towards reapportionment until the Kahn petition was filed with the court below on November 13, 1973. It was only after receipt of a copy of the Kahn petition that on that same date, to wit, November 13, 1973, the Board of Commissioners adopted a resolution to study the need for reapportionment. Springfield Township is a township of the first class and has been governed for many years by a seven-man board of commissioners,
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each elected from one of the respective wards.
On the same date that the Kahn petition was filed, the court below granted the prayer of the petition by the appointment of three commissioners who were directed "to inquire into the propriety of granting the requested redivision of the wards of The Township of Springfield and to report to this Court as soon as practicable." On December 4, 1973, the Township petitioned to intervene, and sought to vacate the order and dismiss the Kahn petition. After hearing, the court below filed its opinion and order wherein, in effect, the court held that the Board of Commissioners, not having reapportioned the Township by December 1, 1971, thereby lost the power to reapportion. The court held that Article IX, Section 11 of the Pennsylvania Constitution of 1968 did not operate as a repealer of the redivision provisions of The First Class Township Code, Act of June 24, 1931, P.L. 1206, art. IV, § 401, as amended, 53 P.S. § 55401. The court below also ordered the redivision commission to proceed with its public hearings and the filing of its report on or before March 20, 1974.
After appeal to this Court by the Township, Kahn filed a motion to quash the appeal on the basis that the order dated January 29, 1974, of the court below was interlocutory. After argument, this Court, on March 7, 1974, denied the motion and directed that all further proceedings be stayed, pending further action by this Court.
The specific question presented by the Township is whether Article IX, Section 11 of the Pennsylvania Constitution of 1968 superseded the ward redivision provisions of The First Class Township Code, 53 P.S. § 55401 so that the power to reapportion the ...