Evans v. Phillipi , 117 Pa. 226 ( 1887 )

Opinion,

Mr. Justice Clark:

The plaintiff in error was, on the 16'th February, 1886, elected tax collector of the township of Warwick, in Lancaster county, under the provisions of the act of 25th June, 1885,' entitled “ an act regulating the collection of taxes in the several boroughs and townships of this commonwealth; ” he gave bond which Avas approved, and now claims to perform the functions of that office. The defendants were the school directors of the same toAvnship for the same year, and although as such directors they levied a school tax for the year 1886, they refused to issue their warrant to the plaintiff authorizing him to collect the same, but delivered a certified duplicate of the assessment and levy to one E. R. Shirk, the treasurer of the school board, pursuant to the act of 21st April, 1869, P. L. 87, under the provisions of which the board had for several years preAdously, by resolution, authorized the collection of the school taxes of the said district. This proceeding by mandamus Avas thereupon instituted, to enforce compliance with the provisions of the act 1885.

It is contended on part of the defendants, that the act of 25th June, 1885, is in conflict with sec. 7 of art. III. of the constitution of the commonwealth, prohibiting local and special legislation; that there were at the time of the passage of that act, and still are, local and special acts in force in various parts of the state, relating to the collection of school taxes, some of them relating especially to Warwick township; and that the concluding clause of the last section of the act of 1885, which provides that “this act shall not apply to any taxes the collection of which is regulated by a local law,” necessarily gives to the statute a limited and local effect only.

But if this clause of the last section of the act of 1885 had been omitted, the force and effect of the statute would certainly have been the same. A local enactment, as a general rule, is not repealed by a general statute. “ Rarely if ever,” says our brother Teunkev in Malloy v. Reinhard, 115 Pa. 25, “ does a case arise when it can justly be held, that a general statute repeals a local statute by mere implication. The constitution of 1874 upon many subjects prohibits local or special legislation, but it changes no rules relative to the repeal by legislation of local laAvs existing when it was adopted.” The clause Avhich we have quoted from the act of 1885, therefore, does not change the effect of that statute in the slightest degree; for, as we have said, the force of its provisions Avould have been precisely the same if it had been omitted.

The single question then is whether or not a statute, although general in form, is to he treated as a local one simply because of the intervention of some local statute unrepealed, which prevents it from taking general effect. There is an obvious distinction between a statute which upon its face is local and special, and one which although general in form is thus obstructed in its application; in the one qase, the local law cannot become general, except by a re-enactment in general form; whilst, in the other, by the repeal of the local law the special subject affected by it is brought under the general law, the operation of which was previously obstructed. Thus the act of 21st April, 1869, could be extended to the whole state only by the re-enactment thereof as a general law, but the act of 25th June, 1885, upon the repeal of the local statutes obstructing its operation, would ipso facto take effect throughout the state. The latter is therefore in this modified sense a general law; it was passed for the whole state and may, upon certain contingencies, become applicable and operative throughout the state without change or amendment thereof.

Prior to 1874 the legislature, in its wisdom, by special laws settled the practice of the courts in specified parts of the state; prescribed the form and requirements of affidavits of defence in actions at law; established methods of procedure in the laying out and opening of public and private roads in certain counties, etc.; these, and many other enactments of a similar character, which in the mind of the legislature were by local circumstances made necessary, are still upon our statute books, have been for many years received and acquiesced in by the profession and the people, and their repeal is neither sought for nor suspected. Can it be, that no general statute can be constitutionally enacted upon any one of the various subjects embraced in this great body of private legislation, without an express repeal of every local provision which may be construed to prevent its general application ? Peculiar and special provisions, too, have been made from time to time by local statutes, prior to the constitution of 1874, for the regulation or prohibition of the sale of intoxicating liquors in many of the townships, boroughs and counties of the commonwealth, which provisions still remain unrepealed and are admittedly in full force; can it be, that the legislature has no constitutional power to frame a general law regulating the liquor traffic in the state without repealing all these local provisions ? Has any one ever supposed that the general liquor law of 12th April, 1875, was upon this ground an invalid enactment, and is the more recent act of May 13, 1887, popularly known as the high license law, to be set aside as unconstitutional and void upon similar grounds ?

The prohibitions of the constitution in respect of special legislation are prospective only. That instrument did not repeal local statutes whose provisions were inconsistent therewith, in force at the time of its adoption: Indiana Co. v. Agricultural Soc., 85 Pa. 359; it merely imposed restrictions on future legislation: Coatsville Gas Co. v. Chester Co., 97 Pa. 476. Nor was it the intent and meaning of the convention that all future legislation was conditioned upon the repeal of these local laws; no such thing can be found in the work of the convention; such has not been the understanding of the profession throughout the state.

All of these local statutes were in conformity with the constitution when enacted, and they are valid until they are repealed; and we think that the legislature, in order to give efficiency to a general law, is not bound to repeal any and all of them which may be supposed to limit its application. We are of opinion, for the reasons we have expressed, that the act of June 25, 1885, must be regarded as a general law applying to the whole state, excepting in so far as its operation is obstructed by existing local statutes passed prior to the new constitution, upon the repeal of which it will take effect throughout the state.

Nor is the act of 1885 obnoxious to clause 27, sec. 7, art. III., or to sec. 1, art. IX., of the constitution. What we have already said is sufficient to show why no such conflict exists. We hold the act of 1885 to be a general law. It is a general law relating to the collection of taxes in the boroughs and townships of the state; boroughs and townships are created by general laws, and are the proper subjects of appropriate, independent, general legislation as such; and the act establishes a general system peculiarly adapted to the convenience and necessities of the municipal divisions named.

But that the act of 1869 is a local statute admits of no doubt whatever; it expressly provides that none of its provisions shall apply to the cities of Pittsburgh or Allegheny, or to the counties of Cumberland, York, Franklin, Adams, etc. About one third of the whole state is permanently excluded from the operation of the act. Nor does it apply to all of the school districts within the territory which it does embrace, but to such only of them as, by resolution of the board of school directors therein, may authorize the collection of the school tax in the manner therein provided. It is thus limited to the districts that may formally accept its provisions, and, according to the doctrine of Scranton City’s App., 113 Pa. 176, it must be regarded as a local law. A law is said to be local and special, however, not because of the new constitution, or of any decision under it, but because it falls within the proper definition of a local law both before and since 1874.

The act of 1885 has therefore no application to the collection of school taxes in Warwick township for the year 1886; the provisions of the act of 1885 are express to this effect; it would have had no application to that township if in the act it had not been so expressed; the taxes were collectible under the act of 1869, which was a local law unrepealed and in full force.

The judgment is affirmed.