Upper Merion Township v. Bridgeport Borough ( 1930 )

Argued January 20, 1930. A bill was filed in this case praying that defendant borough be restrained from carrying through an attempt to annex certain adjacent territory. After hearing, the court below dismissed the bill and plaintiffs have appealed.

Defendant borough was incorporated by special act of assembly approved February 27, 1851, P. L. 115; it has not accepted the provisions of any of the general acts of assembly relating to boroughs and continues to be governed by its special charter and amendments thereto. In October, 1927, the borough council passed the ordinance here complained of, to annex the land of plaintiff township. Plaintiffs contended that defendant borough lacked power to annex land; the court below overruled this contention, saying, inter alia, "The defendants ground the annexation proceedings squarely upon the Act of [April 22,] 1903, [P. L. 247], with the terms of which they have complied. . . . . . The act . . . . . . is in force and virtue . . . . . . ; therefore . . . . . . defendants must prevail and the bill be dismissed." Thus it may be seen that the controlling question now before us is whether the Act of 1903 is in effect so as to confer on defendant borough the power of annexation sought to be exercised in this case.

By the statute in question, which is a general act, the legislature conferred on "the burgess and council of any borough or incorporated town" power to annex adjacent territory; but, so far as it related to boroughs, the Act of 1903 was specifically repealed by chapter 13, article I, of the General Borough Act of May 14, 1915, P. L. 312, 427, 446, 455. In 1921, however, the legislature passed the Act of April 26, 1921, P. L. 282-3; this amended, not the above mentioned repealing chapter of the General Borough Act of 1915, but section 6 of chapter 1, article I, of that statute, which provided that "This act shall apply to all boroughs incorporated under general law and to all boroughs incorporated under special law which have accepted the provisions of the Act of April 3, 1851, entitled 'An act regulating boroughs.' [Further that] This act shall not annul or repeal any local or special act in force at the date of the passage of this act, or any provision thereof," by making the provision just quoted read as follows: "This act shall apply to all boroughs incorporated under general law and to all boroughs incorporated under special law which have accepted the provisions of the Act of April 3, 1851, entitled 'An act regulating boroughs,' and also to all boroughs incorporated since April 3, 1851, by special act of assembly, which, by the act of incorporation, have been given the general powers of boroughs incorporated under general law. This act shall not annul or repeal any local or special act in force at the date of the passage of this act, or any provision thereof; nor shall this act repeal any actcited for repeal in the repealing clause hereof so far as anysuch act applies to, or may have heretofore applied to, any boroughs incorporated under specialacts of assembly and to which boroughs, as limited by theprovisions of this section, this act does not apply." It is claimed by appellees that the effect of the above quoted provision of the Act of 1921 was to revive in defendant borough the power of annexation given to it by the Act of 1903, notwithstanding the absolute repeal of that statute by the Act of 1915, and the court below sustained this contention, — a conclusion with which we cannot agree, because the complicated method of expression in the above quoted excerpt from the Act of 1921 tends to defeat itself, since it indicates an intention to accomplish by indirection an end forbidden by the Constitution.

Article III, section 7, of the Constitution of 1873, prohibits the legislature from passing any local or special law regulating the affairs of boroughs or changing borough limits, and also from "indirectly enact[ing] such special or local law by partial repeal of a general law." Had the legislature, by the Act of 1903, attempted to stipulate that the power of annexation therein provided was given only to boroughs "incorporated under special acts of assembly," such legislation would undoubtedly have fallen squarely within the constitutional prohibition just mentioned, unless all boroughs chartered by special acts of assembly could justifiably be considered as possessing in common peculiar conditions, differing from those prevailing in other boroughs, the existence of which conditions would warrant putting boroughs specially incorporated in a class by themselves for the purpose of regulatory legislation. The statement of such a classification shows its fallacy; for it is a matter of general knowledge that, prior to the Constitution of 1873, boroughs were incorporated indiscriminately by special acts of assembly, and that, in point of fact, boroughs thus formed are not possessed of conditions in common which so distinguish them from other boroughs as to warrant separate classification for purposes of legislation regulating their affairs. While the fact that numerous boroughs possess special charters meets with recognition in our written law, we find no legislation prior to 1921 attempting to group them as a separate class for legislative purposes; nor is that course warranted. Therefore, since the General Assembly could not legislate for boroughs incorporated by special acts of assembly alone, as a class, by granting to them powers not previously in any degree enjoyed (Georges Township School Directors, 286 Pa. 129, 136-7), it cannot by indirection accomplish that which it is forbidden to do directly, as is attempted by the Act of 1921. The General Borough Act of May 4, 1927, P. L. 519, 663, expressly repeals the Act of 1921, but section 106 of article I contains a saving clause as to boroughs "incorporated under special acts of assembly," such as hereinbefore quoted from the Act of 1921 itself, so that a consideration of the Act of 1927 would not add anything to the present case.

In November, 1923, section 34 of article III of the Constitution of 1873, was amended by providing that "the legislature shall have power to classify . . . . . . boroughs. . . . . . according to population, and all laws passed relating to each class . . . . . . shall be deemed general legislation. . . . . . but boroughs . . . . . . shall not be divided into . . . . . . more than three classes." Such a classification according to population is the usual and well-recognized mode of dividing up municipalities for purposes of legislation regulating their affairs, and in Com. ex rel. v. Patton, 88 Pa. 258,260, we said, "There can be no proper classification of cities or counties except by population." It is not necessary, however, to apply that principle to this case, where the classification depended on is obviously unreasonable.

The attempt in the Act of 1921 to reinstate the power of annexation conferred by the Act of 1903 is void for other constitutional reasons also. Section 6 of article III of the Constitution of 1873, provides that "so much" of any law as shall be "revived" or "amended" must be "reënacted and published at length" in the act which attempts to revive or amend the law in question. Here the act intended to be revived is that of April 22, 1903, and the law attempted to be amended is that part of chapter 13, article I, (c), P. L. 446, 455, of the Act of 1915, which provides that, "The following acts and parts of acts of assembly are repealed in so far as they relate to boroughs, viz.: —. . . . . . An act entitled 'An act enabling the burgesses and council of any borough or incorporated town, by ordinance, to annex . . . . . . territory . . . . . .,' approved the 22nd day of April, 1903 (P. L. 247)," yet nothing in the Act of 1903, or in the part of the Act of 1915 just quoted, is "reënacted" or "published at length" in the Act of 1921; on the contrary, the only previous legislation referred to in the Act of 1921, as intended to be affected thereby, is section 6, chapter 1, article I, of the Act of 1915. Appellees contend that, in this indirect way, the Act of 1903, specifically repealed by the Act of 1915, was impliedly revived by the Act of 1921; their theory, — also stated by the court below, — being that, "when an act repealing a former act is [itself] repealed, the original act is revived," citing Directors of the Poor v. Ry. Co., 7 W. S. 236, 237. But the Act of 1921 does not repeal the Act of 1915; it attempts to amend a part of the latter statute, which, as before shown, is not even the portion that directly repeals the Act of 1903. Such a course cannot be made effective by reliance on the principle, called to our attention by appellees, that implied amendments are not within the constitutional provision (Searight's Est., 163 Pa. 210, 216-17) noted at the head of this paragraph, and thus serve to confer on defendant borough the power which it for a time enjoyed under the Act of 1903, before the repeal of that statute by the Act of 1915.

What we have already said is sufficient to dispose of this case, and the other points discussed in the briefs need not be ruled.

The decree of the court below dismissing plaintiffs' bill is reversed; the bill is reinstated, and the court below is directed to issue the injunction prayed for; costs to be paid by defendant borough.