Deer Creek Drainage Basin Authority v. County Board of Elections

OPINION OF THE COURT

ROBERTS, Justice.

The voters of West Deer Township adopted a home rule charter in May, 1974. This charter, effective January, 1976, authorizes the voters of West Deer to reconsider by way of referendum election any enacted ordinance of the township. Under the charter, upon the filing with the Board of Elections of Allegheny County of a proper referendum petition, any ordinance which is the subject of such an election is suspended. The charter further provides that any ordinance rejected by the voters is automatically repealed.

On July 5, 1977, pursuant to the home rule charter, over 900 voters of West Deer filed with the County Board of Elections a petition calling for a referendum on whether Ordinance No. 100,¹ which initiated the formation of the Deer Creek Drainage Basin Authority, should be repealed. In view of this petition, the Board of Elections plans to place the following question on the November 8, 1977 ballot:

“Shall Ordinance No. 100 of the Township of West Deer enacted October 10, 1974, providing for the establishment with the Township of Indiana of a joint authority known as the Deer Creek Drainage Basin Authority be repealed?”

On July 11, petitioners Deer Creek Drainage Basin Authority, West Deer Township, and Indiana Township petitioned this Court to prohibit respondents Board of Elections and the Allegheny County Commissioners from placing this question on the November ballot.²

This case presents the issue of whether a municipality which is a member of a joint Authority can withdraw from that joint Authority by repealing the ordinance through which the municipality initiated the incorporation of that joint Authority. We hold that it cannot. We hold that the suspension and repeal of Ordinance No. 100 has no legal effect on the township’s membership in the joint Authority, and therefore is not a proper subject for referendum. We therefore direct respondent Board of Elections to take all steps necessary to ensure that the question pertaining to the repeal of Ordinance No. 100 is not presented on the November 8, 1977 ballot.³

I

Neither West Deer Township nor Indiana Township has a comprehensive sewage disposal system. Instead, sewage generated at various public buildings in these communities is conveyed to and treated at several sewage treatment plants; sewage generated at private residences is channeled into individual on-site facilities.

For the past several years, the Department of Environmental Resources and the Allegheny County Department of Health have been examining the manner in which West Deer and Indiana Townships process sewage. The agencies have concluded that at least fifteen of the small sewage treatment plants are poorly maintained and are discharging sewage into surface waters in violation of state and federal law. Additionally, the agencies have found that malfunctions at many of the on-site facilities are causing unlawful pollution of groundwater and unlawful discharge of raw sewage onto the surface of the ground throughout the area. The Department of Environmental Resources deems these deficiencies in sewage facilities a threat to the health and safety of the citizens of the affected areas, and by order dated August 29, 1977, has ordered both townships to correct these deficiencies.

In 1972, West Deer and Indiana Townships hired two consulting firms to study the sewage disposal needs of the townships. The firms concluded that the townships would benefit greatly if they worked together in dealing with their sewage problems. Accordingly, on October 21, 1974, West Deer Township and Indiana Township formed the Deer Creek Drainage Basin Authority, to which the Secretary of the Commonwealth has issued a certificate of incorporation.⁴ The Authority is authorized to plan, construct, and operate facilities which will collect, transport, and treat sewage generated within the townships.

The sewage disposal plan developed by the Authority was submitted and approved by the Department of Environmental Resources in February, 1976. In March, 1976, the Department of Environmental Resources issued the Authority permits authorizing the construction and operation of the proposed facilities. To finance the project, the Authority obtained in May, 1976, a grant in excess of $12,000,000 from the Environmental Protection Agency.

II

The Municipal Authorities Act of 1945, Act of May 2,1945, P.L. 382, §§ 1 et seq., as amended, 53 P.S. §§ 301-322 (1974 and Supp.1977), grants municipalities the power to organize joint municipal Authorities. Section 3 of the Act, 53 P.S. § 303, provides that the process begins when interested municipalities enact ordinances signifying their intention to organize an Authority. Official notices must then be published in both the legal periodical and a newspaper of general circulation in the county or counties in which the Authority is to be organized. Id.

Following this publication, the municipalities must file with the Secretary of the Commonwealth articles of incorporation and proof of publication of the required notices. Id. Section 3 provides that if the Secretary finds that the articles conform to the requirements set forth in the Act, the Secretary shall approve the articles and issue a certificate of incorporation. The statute provides that the corporate existence of the Authority begins only upon the issuance of such a certificate, and the certificate is conclusive evidence of the Authority’s existence.⁵

Section 3.1 of the Act, 53 P.S. § 304, provides that an incorporating municipality may withdraw from the incorporated Authority, but only with the Authority’s consent. In no event, however, may a municipality withdraw after the Authority has incurred any obligation. Id.⁶ Section 3.1 sets forth the method by which a municipality may withdraw:

“Any municipality wishing to withdraw from . an existing Authority shall signify its desire by resolution or ordinance. If the Authority shall by resolution express its consent to such withdrawal, . . . the municipal authorities of the withdrawing . . . municipality shall cause a notice of its resolution or ordinance to be published at least one time in the legal periodical of the county or counties in which the Authority is organized and at least one time in a newspaper published and of general circulation in such county or counties.”

The statute further provides that the municipal authorities are to file with the Secretary of the Commonwealth an application to withdraw. If the Secretary finds that the application conforms to the terms of the Act, the Secretary is to issue a certificate of withdrawal. Withdrawal becomes effective upon the issuance of this certificate.

Both West Deer and Indiana Townships have, by enacting proper ordinances, initiated the incorporation process as prescribed by the Act. Official notices have been published, and the Secretary has issued a proper certificate of incorporation. The issuance of this certificate has completed the incorporation process, and has allowed the joint Authority to begin its work. Despite this compliance with the Municipal Authorities Act by West Deer Township and Indiana Township, and despite the willingness of petitioners, including Indiana Township, to proceed with this sewage project, a portion of the voters of West Deer, through a home rule charter provision, seek a referendum election on whether the ordinance authorizing the participation of West Deer in the Deer Creek Drainage Basin Authority should be repealed.

Such a referendum has no legal effect, however. Ordinance No. 100 was only the first step in the incorporation process. West Deer Creek Ordinance No. 100 by itself does not give the joint Authority the power to carry out the sewage disposal objectives of both townships; the capacity to carry out these functions derives from the certificate of incorporation. See Whitemarsh Twp. Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964); Simon Appeal, 408 Pa. 464, 184 A.2d 695 (1962); Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (1934). Once the joint Authority has been incorporated and West Deer Township has become a member, Ordinance No. 100 has served its initiating function and has no further legal significance. An attempted repeal of Ordinance No. 100 does not alter the township's membership in the joint Authority. Withdrawal proceedings may be initiated only under the procedure set forth in Section 3.1 of the Municipal Authorities Act of 1945, 53 P.S. § 304.

Nor can the attempted repeal and suspension of Ordinance No. 100 be viewed as compliance with the statutorily prescribed procedures for withdrawing from the joint Authority. Those proceedings, by the terms of Section 3.1 of the Municipal Authorities Act, may only begin when a municipality “signifies] its desire [to withdraw] by resolution or ordinance.” This desire may be manifested only by a resolution or ordinance explicitly proposing withdrawal in accordance with the Municipal Authorities Act of 1945. We hold that the proposed repealer referendum has no effect on the continuing membership of West Deer Township in the Deer Creek Drainage Basin Authority.

The Home Rule Charter and Optional Plans Law, Act of April 13, 1972, §§ 101 et seq., as amended, 53 P.S. §§ 1-101 — 1-1309 (1974 and Supp.1977), supports this conclusion. Though the Home Rule Charter Law grants to municipalities which choose to adopt home rule the power to “repeal ordinances ... as may be required for the good government” of the home rule municipality, § 304, 53 P.S. § 1-304, such power is not without limitation. Section 302(b) of the Home Rule Charter Law, 53 P.S. § 1-302(b), provides:

“Limitations on municipal powers

“(b) No municipality shall .

(ii) exercise powers contrary to, or in limitation or enlargement of powers granted by acts of the General Assembly which are applicable in every part of the Commonwealth . . ..”

This section, enacted pursuant to the Legislature’s constitutional authority to limit home rule power, Pa.Const. art. IX, § 2, manifests a legislative directive that home rule municipalities are without power to devise their own scheme for withdrawing from a joint Authority. Here, the General Assembly has established a clear set of procedures applicable throughout the Commonwealth which a municipality must follow if it wishes to withdraw from a joint Authority. These statutorily mandated procedures do not provide for withdrawal by one member of a joint Authority suspending or repealing its ordinance expressing its intention to become a member. To hold otherwise would be to enlarge the power of a home rule municipality to withdraw from a joint Authority contrary to the procedures made applicable throughout the Commonwealth set forth in Section 3.1 of the Municipal Authorities Act of 1945, 53 P.S. § 304, and the statutory limitation on home rule power.

This referendum election has raised doubts about the continuing vitality of the Deer Creek Drainage Basin Authority. Not only the possible repeal but also the mere suspension of this ordinance, by operation of the West Deer home rule charter, has hindered the ability of the joint Authority and the Townships to stabilize the cost of this sewage project. The joint Authority has been frustrated in its effort to begin the operation of the project, and both West Deer and Indiana Townships have been unable to meet their sewage disposal needs. Because we conclude that the suspension and repeal of Ordinance No. 100 can have no operative effect on the continued membership of West Deer Township in the joint Authority, the presence of the proposed referendum on the November 8, 1977 ballot can only add to the current uncertainty. In order to avoid unnecessary voter confusion and the unjustified expenditure of public resources on an inoperative election, and to protect the interests of all parties, injunctive relief is appropriate. See Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534 (1971); Housing & Redevelopment Authority of Minneapolis v. City of Minneapolis, 293 Minn. 227, 198 N.W.2d 531 (1972); Application of Township of Half Moon, 81 Misc.2d 157, 364 N.Y.S.2d 299 (1975).⁷

Accordingly we hold that the attempted suspension pursuant to the West Deer home rule charter and possible repeal of Ordinance No. 100 does not affect the membership of West Deer Township in the Deer Creek Drainage Basin Authority, and we hereby direct respondent Board of Elections to take all steps necessary to ensure that the question pertaining to the repeal of Ordinance No. 100 is not presented on the November 8, 1977 ballot.

It is so ordered.

POMEROY, J., dissents and would dismiss the “Petition for Review and Petition for Stay and Writ of Prohibition and Other Relief” for want of jurisdiction in this Court. Opinion to follow.

1 . Ordinance No. 100 was enacted pursuant to Section 3 of the Municipal Authorities Act of 1945, Act of May 2, 1945, P.L. 382, 53 P.S. § 303 (1974). Such an ordinance is the first step in the incorporation of a joint Authority. See Part II infra.

2 . Citizens filing the referendum petition with the County Board of Elections have not entered an appearance. The Department of Environmental Resources of the Commonwealth of Pennsylvania has filed an amicus brief supporting the striking of this referendum election. An opposing brief has been filed by “certain citizens” of the Township of West Deer. Respondents have not filed a brief. All relevant facts have been stipulated to by the parties.

3 . Petitioners assert that Section 201(2) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, 17 P.S. § 211.201(2) (Supp.1977), confers upon this Court original jurisdiction over their petition for a writ of prohibition. Petitioners contend that the decisions of this Court establish that such a writ may issue to “quasi-judicial” administrative bodies which, they assert, includes the Board of Elections.

We need not decide whether a writ of prohibition may properly issue to the Board of Elections. Petitioners seek to review the determination of the Board of Elections to place the matter on the November, 1977 ballot. This petition for review, see Pa.R.A.P. 1501 et seq., is pending before a court of this Commonwealth, and, in view of the importance of this public election issue, we exercise plenary jurisdiction. Appellate Court Jurisdiction Act of 1970, § 205, 17 P.S. § 211.205 (Supp.1977).

4 . The issuance of the certificate of incorporation is the last step in the incorporation process. See Part II infra.

5 . Section 3 of the Act provides that the Commonwealth may institute proceedings to dissolve the Authority. We have held that this provision excludes others from collaterally attacking the validity of an Authority’s incorporation. Upper Dublin Twp. v. Piszek, 420 Pa. 536, 218 A.2d 328 (1966). See also Jonnet v. Municipality of Monroeville, 31 Cmwlth. 437, 376 A.2d 1015 (1977).

6 . Section 3.1 provides:

“[N]o municipality shall be permitted to withdraw from any Authority after any obligation has been incurred by the Authority.”

The parties have stipulated that the Authority has incurred “bills” of more than $800,000, including a loan of $350,000 from Pittsburgh National Bank. “Certain citizens” argue that these bills are not “obligations” within the meaning of Section 3.1. The citizens argue that “obligations” should be interpreted to include only “bonded indebtedness.” In view of our disposition, we need not reach this issue.

7 . Here, we are faced with an attempt to exercise home rule power which presently is causing injury. The consequences of this suspension and possible repeal pose a genuine controversy with immediate effects, not an abstract or hypothetical one where the effects are speculative. Compare Mt. Lebanon v. County Bd. of Elections, 470 Pa. 317, 368 A.2d 648 (1977).