Whitehall Township v. Oswald

Opinion by

Mr. Chief Justice Jones,

The Township of Whitehall, in Lehigh County, a township of the first class, enacted an ordinance, known as “The Trailer and Trailer Park Ordinance”, which provides, inter alia, that “No person shall occupy any trailer coach for sleeping or living quarters outside a duly permitted trailer park” and further prescribes penal sanctions for violations.

Following enactment of the ordinance, Gerald Oswald and John Reiss, the appellants herein, purchased and occupied house trailers, as homes, upon land situate in the township outside “a duly permitted trailer park.” The chief of police of the township, at the direction of the board of commissioners, gave notice to Oswald and Reiss that they were in violation of the ordinance and subject to the fines and penalties provided therein. Without any effort to enforce the ordinance against Oswald and Reiss, the township filed a petition in the court of common pleas of the county praying a declaratory judgment affirming the constitutionality of the ordinance in its application to Oswald and Reiss. The basis for invoking the court’s jurisdiction of the township’s declaratory judgment petition was, as averred therein, that. “there is a conflict of judicial opinion as to the constitutionality of ordinances of the nature and type” of the Whitehall Township Ordinance in question. The court took jurisdiction of the petition and adjudged and decreed that the ordinance is constitutional. From that judgment Oswald and Reiss have appealed.

The present proceeding is unique in at least one particular for which no parallel is to be found in the annals of Pennsylvania’s jurisprudence. The plaintiff township, a political subdivision, seeks, by means of a declaratory judgment petition, a judicial pronouncement upon the constitutionality of its own voluntary enactment. It is as unorthodox as it is extraordinary for a municipality to., enact an ordinance and ■then forthwith supplicate a court’s determination of its constitutionality. To construe the Uniform Declaratory Judgments Act as granting such a right to a governmental body would be to encourage legislative irresponsibility and to constitute the courts the legal advisers of municipalities with respect to their legislative enactments. If a question concerning the constitutionality of an ordinance is to be passed upon by a court, it can be done properly only as the sequence of an actual controversy based upon a sufficient allegation by a complainant that he is being harmed or threatened with imminent harm in violation of his constitutionally protected rights.

The draftsman of the Uniform Declaratory Judgments Act labored under no misapprehension as to the impossible situation that would result if a municipality were permitted to test by a declaratory judgment proceeding the constitutionality of one of its own enactments. Such a right, the statute does not extend to a municipality or other political subdivision clothed with legislative power. The right to question the construction or validity of a municipal ordinance by a declaratory judgment proceeding, in appropriate circumstances, and obtain a declaration of the petitioner’s rights, status, or legal obligations under the ordinance, is restricted by Section 2 of the Act of June 18, 1923, P.L. 840 (12 PS §832) to “Any person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise. . . .” Certainly, it can not reasonably be said that the plaintiff township’s “rights, status, or other legal relations” have been adversarily affected by its own deliberately intended enactment.*

Would anyone contend that, by virtue of the above quoted statutory provision, the legislature conferred •upon the Commonwealth a right to resort to a declara* tory judgment proceeding to have an act of assembly construed or validated? To what end could such a procedure be designed? For what purpose would an ordaining public body subject to judicial scrutiny its own legislative enactments which are presumptively constitutional as a matter of law? And, it has been expressly recognized that “The same presumption of constitutional validity that attends an act of the legislature is equally applicable to municipal ordinances whether they be enacted by the council of a city, town or borough or by the supervisors of a township”: Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, 71, 141 A. 2d 851. So long as an ordinance is unquestioned, its constitutional validity remains established. The plaintiff township was, therefore, without standing to invoke the jurisdiction of the court below for the purpose of having the constitutionality of its trailer ordinance adjudicated in a declaratory judgment proceeding.

Whether such a proceeding is available to the appellant trailer-owners for testing the constitutionality of the ordinance or whether they must lay themselves open to prosecution for violations of its provisions, and possible heavy pecuniary loss, in order to question the ordinance’s validity, are problems not presently before us. Nor can we assume to pass upon them in this proceeding without creating an unwarranted and procedurally disruptive precedent.

Judgment vacated and petition dismissed at the plaintiff’s costs.

* The case of White Oak Borough Authority v. McKeesport, 379 Pa. 266, 108 A. 2d 760, is obviously not in point. That case was concerned with a controversy between the parties litigant as to their respective rights and liabilities under a written contract. The case did not question the validity of a municipal ordinance or any other legislative enactment. In fact, the plaintiff Authority did not even possess legislative power.