
    In re Fountain Hill Borough
    
      James N. Diefenderfer, for petitioner.
    January 11, 1972.
   KOCH, P. J.,

— The Borough of Fountain Hill has presented a petition requesting the court to appoint three impartial persons to inquire into the propriety of creating an additional ward. The petition has annexed to it a copy of a resolution enacted on December 6, 1971, by the borough council requesting the proposed action by the court.

The petition was presented pursuant to the provisions of the Borough Code of February 1, 1966, P. L. 1656, as amended October 9, 1967, P. L. 399, sec. 601, et seq., 53 PS §45601. There is no doubt that this section of the code authorizes a borough council and the court to proceed as suggested. We are of the opinion, however, that article 9, sec. 11, of the Constitution of the Commonwealth, effective April 23, 1968, compels us to deny relief. The pertinent constitutional provision is as follows:

“Within the year following that in which the Federal decennial census is officially reported as required by Federal law, and at such other times as the governing body of any municipality shall deem necessary, each municipality having a governing body not entirely elected at large shall be reapportioned, by its governing body or as shall otherwise be provided by uniform law, into districts which shall be composed of compact and contiguous territory as nearly equal in population as practicable, for the purpose of describing the districts for those not elected at large.”

In our view, the above provision supersedes section 601 of the Borough Code and is applicable to the Borough of Fountain Hill which has a “governing body not entirely elected at large.”

We are mindful also of a decision in re Lower Merion Township Appeal, 215 Pa. Superior Ct. 363, which held that the above-constitutional provision supersedes that portion of the First Class Township Code empowering courts to reapportion such municipalities, 53 PS §55401, and expresses intent that reapportionment be a legislative function to be accomplished by ordinance, with judicial action to take place only in event of inordinate delays.

We are obliged to deny the prayer and dismiss the petition.

ORDER

Now, January 11, 1972, the within petition of the Borough of Fountain Hill is dismissed. Exceptions to this order may be filed within 20 days after service of a copy of this order upon the Solicitor of the Borough of Fountain Hill.  