Frank E. Coho, Pittsburgh, for appellants.
Edwin L. Klett, Bryan D. Rosenberger, Eckert, Seamans, Cherin & Mellott, Pittsburgh, for appellee, Mt. Lebanon, Pennsylvania.
Alexander J. Jaffurs, Solicitor, James H. McLean, Deputy Solicitor, Allegheny County, Pittsburgh, did not argue or file a brief.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result.
This appeal results from a March 17, 1976, decree of the Court of Common Pleas of Allegheny County enjoining the Allegheny County Board of Elections from placing on the ballot two proposed amendments to the Mt. Lebanon Home Rule Charter.
Appellee, Mt. Lebanon, Pennsylvania, is a home rule municipality, having adopted a home rule charter effective January 1, 1975. On January 9, 1976, the Board of Elections of the County of Allegheny notified appellee that proposed amendments to appellee's home rule charter had been received.*fn1 The amendments*fn2 were to be submitted to the Mt. Lebanon electorate on the April 27, 1976, primary election ballot. On February 23, 1976, appellee Mt. Lebanon, filed an action in equity, seeking to enjoin the Board of Elections from placing the proposed amendments on the ballot. On March 4, 1976, appellants, Roger W. Lund and Ruth M. Lund, citizens and taxpayers of appellee, were permitted to intervene as party-defendants.
Following a March 5, 1976 hearing, the court below ordered the proposed amendments stricken from the ballot, holding that the amendments, if adopted, would be unconstitutional. This appeal followed.*fn3
We believe the court below erred in issuing its decree. While expressing no opinion on the constitutionality of
the proposed amendments, we believe the court should have dismissed the action for want ...