Lower Merion Township v. Becker

Opinion by

Beaver, J.,

The opinion of the court below, overruling the motion for judgment non obstante veredicto, is its own vindication. It deals so fully and so convincingly with the real questions involved in the case that it is not necessary for us to enter into details) anticipating its publication in full in the report of the case.

The Act of April 28, 1899, P. L. 104, entitled, “An act to provide for the classification of the townships of the commonwealth, with respect to their population, into two classes, and to prescribe the form of government for townships of each class,” provides in its seventh section that: “All corporate power, authority and franchise of the township (of the first class) shall be vested in and exercised by the Board of Township Commissioners; and the said board shall have particularly the following powers: .... 3rd. To establish a system of sewers and drainage, and to require connection to be made with such sewers when necessary for the public health, and to provide for the cost of the construction, maintenance and repair of such sewers, in whole or in part, by an equitable assessment on the properties benefited thereby, in such manner as may be prescribed by ordinance, for which assessments municipal liens may be filed in the court of common pleas of the proper, county, on which proceedings shall be had as provided by existing laws. And the board shall also have power to enter into contracts with any adjoining municipality, and also with any person or corporation, for the carrying off of the sewage from the limits of the township. 4th. To make regulations respecting pig pens, slaughter houses, manure pits, drains, cesspools and manufactories that are offensive, to abate nuisances prejudicial to public health and public safety, and to collect the cost of such abatement from any person who may be responsible for having created the nuisance. Also to prohibit or regulate the running at large of animals.”

This act was amended by the Act of May 24, 1901, P. .L. 294, in the third paragraph of sec. 7, so as to read: “3rd. From time to time to establish and construct a system of sewers and drainage, locating the same as far as practicable along and within the lines of such of the public roads of the township as may to the commissioners seem advisable, and to permit and, where necessary for the public health, to require adjoining and adjacent property owners to connect with and use the same; all persons, so connecting, paying in addition to the cost of making such connection, such monthly or annual rate as shall be prescribed by ordinance, and which shall constitute until paid a lien against the property so connecting with such system, and the amount thereof may be recovered by due process of law. Where it shall be reasonably impracticable, in the judgment of the commissioners, in any part of such system to carry such sewers or drains along the lines of public roads, it shall be lawful for the commissioners to locate and construct so much of the same as may be necessary through private lands.”

The Act of April 19, 1905, P. L. 221, amended the ninth clause of the seventh section of the Act of April 8, 1899, P. L. 104, as follows: “Ninth. To prescribe fines and penalties, not exceeding fifty dollars in any instance, for the violation of township ordinances, which fines and penalties may be collected by suit, to be brought in the name of the township, before any justice of the peace or magistrate, in like manner as debts of like amount may be sued for by existing laws.”

No attack, as we understand it, is made upon the constitutionality of the act of 1899 classifying townships. Indeed the principle of Wheeler v. Phila., 77 Pa. 338, has become so thoroughly imbedded in the statutes and decisions of the commonwealth that it would be useless to raise the question regarding the constitutionality of reasonable classification at this day.

The appellant seems to misconceive the real significance of the question involved. In his argument he says: “It can readily be seen, from the statement of the question involved, that the proposition on which the appeal is based, and the question raised in this case, is, whether dr not the Township of Lower Merion had a right to impose upon a property owner a fine of fifty dollars, regardless of the question as to whether mr not his house was a nuisance.” The appellant’s view is entirely too narrow. The question removed by appeal to the court of common pleas was not whether or not the defendant had committed a nuisance, but whether or not he had connected with the sewer established by the township authorities and which they had distinct authority to establish under the third paragraph of the seventh section of the Act of April 28, 1899, P. L. 104. The appellant quotes the fourth paragraph of this section as if the power and authority of the commissioners of the township had been exercised under its provisions instead of those of the third, amended by the act of 1901. The rights and duties conferred and imposed upon the commissioners under both of these paragraphs come clearly within the general police power of the state, the exercise of which is properly vested in municipal authorities. There is no attack upon the ordinances passed by the commissioners providing for sewers on the ground of their unreasonableness.

“The principle that matters of merely local concern should be left to the control of the people to be affected, is recognized and acted upon in our system of government. To this end cities and boroughs have their legislative as well as their administrative officers, and the municipal legislature may make laws in regard to all subjects of a municipal character, and enforce them by appropriate penalties. The local government must keep within the limits that bound its jurisdiction as they are defined by the constitution and laws of the state; but, subject to these restrictions, it may determine what is best calculated to promote the security, the comfort and the convenience of the inhabitants:” Livingston v. Wolf, 136 Pa. 519.

The court, in its opinion discharging the rule for judgment, well says: “The ordinance, as interpreted by the commissioners, is certainly reasonable. It was not only the right of the commissioners, but their duty to enforce the connection if the public health, in their judgment, demanded it. We allowed the defendant to show that the discretion vested in the commissioners was abused when they required him to connect with the sewers. He failed to show any abuse of discretion. On the contrary, all that he submitted, in our opinion, strengthened the judgment of the commissioners.”

The question as to whether or not the defendant’s property, in the condition in which it was maintained, was itself a nuisance, as we understand it, did not arise. It was a question as to whether or not the defendant complied with the ordinance in regard to the connection of his premises with the public sewer, and as to his failure ,to do this there was no denial.

As already intimated, the opinion of the court below fully covers everything essential to the proper disposition of the case and, in our judgment, requires no further comment

Judgment affirmed.