In re Division of the 34th Ward

31 Pa. D. & C. 255, 1938 Pa. Dist. & Cnty. Dec. LEXIS 12

• Court: Philadelphia County Court of Quarter Sessions
• Decided: February 24, 1938
• Docket: miscellaneous docket no. 4
• Status: Published

Opinion

Gordon, P. J.,

This is a petition filed by the necessary number of citizens for division of the 34th Ward. Upon the presentation of the petition, we appointed five commissioners, as required by the Act of May 23,1874, P. L. 230. Many meetings were held and much testimony heard by the commission, both for and against the petition. After the conclusion of the hearings, the commissioners met and preliminarily agreed (apparently unanimously) to recommend that the ward be divided. A report was then prepared embodying such a recommendation, but before the commission could meet to formally adopt the report, Mr. Burton C. Simon, one of the commissioners, died. He did not, therefore, participate in the final decision of the commission, although, as the commissioners state, he saw and approved the report before his death. When the four surviving commissioners finally met, they divided evenly upon the subject before them, and two reports have been filed, one recommending that the petition be granted, and the other that it be refused.

We have carefully considered the reasons advanced by each group of commissioners in support of their respective recommendations. They are set forth at length in their reports, and it is not necessary to repeat them here. If the final determination of the question rested with us, we would be inclined to adopt the conclusion of those commissioners who recommend that the ward be divided, notwithstanding there is force in some of the arguments advanced by the commissioners who oppose its division. The act provides, however, that if the report of the commission shall be in favor of a division of the ward, the question shall be submitted to the voters at the next general election, but that if it be against such division, the court “shall take such order thereupon as to them shall appear just and reasonable.” This, as we read the act, gives us the power either to dismiss the petition, or to order a vote to be taken whenever, by reason of circumstances, the commissioners report that they are evenly divided upon the question. In the present case not only do we agree with the judgment of those commissioners who recommend that the ward be divided, but we are also influenced, to some extent, by the knowledge that the late Commissioner Simon would probably have been in favor of dividing it, in which event we would have been required to let the people, whose political situation will be affected thereby, determine the question for themselves. Accordingly, the following order is made in the case:

And now, to wit, February 24, 1938, the petition for division of the 34th Ward in the City of Philadelphia having been presented to the court, commissioners having been appointed thereunder, and four of the said commissioners having made report to the court; and it appearing that said commissioners are evenly divided on the question of the desirability of dividing said ward as prayed for, upon consideration of the premises, it is ordered that a vote be taken of, and an election held by, the qualified electors of the said 34th Ward of the City of Philadelphia on the question of a division thereof; said vote to be taken and election held on the day of the next general election to wit, on the Tuesday following the first Monday of November next, Anno Domini, nineteen hundred and thirty-eight (1938). And it is further ordered that certified copies of the foregoing action and order of the court be transmitted forthwith by the clerk to the mayor and council of the City of Philadelphia, and that the costs of this proceeding, together with the fees and costs of the commissioners for performing their duties, which said fees and costs have been certified by them and are hereby approved, be paid by the City and County of Philadelphia.