Appeal of Barrett

10 A. 36, 116 Pa. 486, 1887 Pa. LEXIS 414

• Court: Supreme Court of Pennsylvania
• Decided: June 1, 1887
• Docket: No. 429
• Status: Published

Opinion

Opinion,

Mr. Justice Sterrett :

It cannot be doubted that the authority of the burgess and town council of the borough of Port Allegany, to levy and collect the tax in question, depends on the validity of the election purporting to have been held under and by virtue of the act of April 16,1875, entitled “ An act authorizing the burgess and town council of each of the several boroughs throughout this commonwealth to levy and collect a gas, kerosene oil and water tax,” and the supplement thereto approved May 1, 1876.

After providing for a special election to determine by a vote of the qualified electors of any borough whether the power to levy and collect such tax shall be exercised by the borough authorities or not, the act declares it shall be done “ by voting written or printed tickets having on the outside the words ‘ gas and water tax,’ and on the inside, ‘ for a gas and water tax,’ or, ‘ against a gas and water tax ’; and the majority of the legal votes so cast for or against a gas and water tax shall decide for or against the application of the said act to the said borough.” The bill charges and the answer admits that none of the tickets voted at the election in question were in the form prescribed by the act; but, on the contrary, all the tickets then voted had written or printed on the outside thereof the words “ Water Tax ” only, and on the inside the words “For a Water Tax,” or “ Against a Water Tax.” Such a vote as this was clearly unauthorized by the original act, and hence the so-called election was void and of no effect, unless the act was amended by the supplement of 1876 which purports to enact that the second section of the act of 1875 be amended by adding thereto as follows: “ That the legal voters of said borough may vote written or printed tickets, having on the outside the words ‘ gas tax,’ ‘water tax ’ or ‘ kerosene oil tax,’ and on the inside ‘ for a gas tax,’ ‘ for a water tax,’ ‘for a kerosene oil tax,’ or ‘against a gas tax,’ ‘against a water tax,’ or ‘ against a kerosene oil tax.’ ” If the supplement is valid, it so modifies the provisions of the original act as t© authorize a vote in the precise form in which it was taken; but, unfortunately for the appellees, it is in direct conflict with § 6, Article III. of the Constitution which ordains that, “ No law shall be revived, amended or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.”

The supplement was manifestly intended to be amendatory of the original act, and nothing else ; but, inasmuch as it utterly ignores the constitutional requirement, above quoted, it is unconstitutional and void. It therefore follows that the vote as taken was unauthorized and the borough authorities, upon their own showing, had no power to levy and collect the tax complained of, and the prayer of appellants for a preliminary injunction should have been granted.

Decree reversed at the costs of appellants, and record remitted with instructions to proceed according to equity practice.