Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Petition to Abolish Wards Hanover Township, No. 1659 of 1976.
John L. McDonald, for appellant.
John P. Moses, with him Charles P. Gelso and Neil L. Conway, for appellee.
Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 45 Pa. Commw. Page 147]
This is an appeal by the board of commissioners of Hanover Township from an order of the Court of Common Pleas of Luzerne County (lower court) abolishing all wards in Hanover Township (township).
[ 45 Pa. Commw. Page 148]
In July, 1976, over 100 township residents petitioned the lower court to abolish all wards in the township, pursuant to Section 401 of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as Page 148} amended, 53 P.S. § 55401 (Code). As required by Section 402 of the Code, 53 P.S. § 55402, the lower court appointed three commissioners "to inquire into the propriety of granting the prayer of the petitioners." After a hearing, the commission recommended to the lower court "that hereafter all Commissioners elected in Hanover Township be elected at large, and that all wards as they now exist be abolished, or in effect, made into one sole ward comprising all of Hanover Township." As a result of the commission's report, the lower court entered a decree confirming the commission's report and abolishing all wards.
The township's board of commissioners, as well as five individual residents of the township, filed exceptions to the decree nisi, which were dismissed after a hearing. The board of commissioners then appealed to this Court, raising three issues: (1) whether Section 401 of the Code has been superseded by the reapportionment provisions of the Pennsylvania Constitution and repealed by the Municipal Reapportionment Act, Act of December 13, 1974, P.L. 947, 53 P.S. § 11601 et seq.; (2) whether Section 401 of the Code permits the lower court to take the action appealed from; and (3) whether the lower court's action deprives the township's voters of equal protection.
Section 401 of the Code, as amended by the Act of August 24, 1963, P.L. 1446, states in relevant part that a lower court, "upon petition, may . . . consolidate two or more wards into one ward. . . ."
The board of commissioners argues that Section 401 of the Code has been superseded by Article IX, Section 11 of the Constitution of Pennsylvania, as amended in 1968, which requires that a municipality having a governing body not entirely elected at large shall be reapportioned by its governing body within the year following the year in which the federal decennial census is officially reported, and at such other
[ 45 Pa. Commw. Page 149]
times as the governing body deems necessary. However, the Pennsylvania Supreme Court has held that Article IX, Section 11 of the Constitution and Section 401 of the Code are not incompatible, and Article IX, Section 11 does not supersede ...