
    Commonwealth ex rel. v. Bowman.
    
      Constitutional law — Title of act — Amendment of act — Uniformity of taxation — Local and special legislation — Road law — Turnpikes—Act of April 20, 1905, P. L. 237.
    The Act of April 20, 1905, P. L. 237 relating to care of condemned turnpikes, is not unconstitutional as violating the third section of article III of the constitution relating to the titles of acts; nor as violating the sixth section of article III of the constitution relating to the revival or amendment of acts; nor as violating the first section of article IX of the constitution relating to uniformity of taxation; nor as violating section 7, article III of the constitution relating to special and local legislation.
    Argued Nov. 1, 1907.
    Appeal, No. 2, March T., 1908, by defendants, from judgment of C. P. Cumberland Co., Sept. T., 1906, No. 197, sustaining demurrer to answer to petition for mandamus in case of Commonwealth ex rel. District Attorney v. J. Van Bowman .et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Demurrer to answer to petition for mandamus.
    The opinion of the Superior Court states the case.
    
      Error assigned was judgment .sustaining demurrer to answer to petition for mandamus.
    
      M. F. Thompson and S. B. Sadler., for appellant.
    — If the title misleads or fails to give notice of the relief of the township from the burden of maintenance, and the imposition of this burden upon the county, then the act cannot be sustained: Dailey v. Potter County, 203 Pa. 593; In re Road in Borough of Phoenixville, 109 Pa. 44; Quinn v. Cumberland County, 162 Pa. 55.
    Whenever a law really extends or amends the provisions of a previous statute, the rule is strictly enforced, and there must be a full enactment: Pittsburg’s Petition, 138 Pa. 401; Titus-ville Iron Works v. Keystone Oil Company, 130 Pa. 211.
    If the necessary tax for the repair of these roads by the county falls unequally on the taxpayers, then the tax cannot be considered uniform, and the act bringing about this result is unconstitutional: Banger’s Appeal, 109 Pa. 79; Juniata Limestone Co. v. Fagley, 187 Pa. 193; Cope’s Estate, 191 Pa. 1.
    This provision would give the commissioners of the various counties the right to immediately take charge of the portion of the turnpike within a township and repair it, or would give, at the election of the commissioners, the right to proceed to declare the abandoned turnpike a county road, under the Act of June 26, 1895, P. L. 336, which requires action by the commissioners, grand jury and the court. If such an opinion is given, then it is contended that the act is unconstitutional for this reason: Frost v. Cherry, 122 Pa. 417; Commonwealth v. Denworth, 145 Pa. 172.
    
      F. E. Beltzhoover, with him T. Ralph Jacobs, for appellees.
    — The title of the act is not defective: Blood v. Mercelliott, 53 Pa. 391; Railroad Company’s App., 77 Pa, 429; Gas & Water Co. v. Downingtown Borough, 193 Pa. 255; Dailey v. Potter County, 203 Pa. 593; Franklin v. Hancock, 204 Pa. 110; Bridge-water Borough v. Bridge Co., 210 Pa. 105; Com. v. Meads, 29 Pa. Superior Ct. 321; Allegheny County Home’s Appeal, 77 Pa. 77; Com, v. Fisher, 213 Pa. 48; Middletown Road, 15 Pa. Superior Ct. 167.
    The act is not a local or special law: Coal Company’s Appeal, 164 Pa. 44; Evans v. Phillipi, 117 Pa. 226; Stegmaier v. Jones, 203 Pa. 47; Com. ex rel. v. Brown, 210 Pa. 29; Com. ex rel. v. Middleton, 210 Pa. 582; Pittsburg’s Petition, 217 Pa. 227; Middletown Road, 15 Pa. Superior Ct. 167; Coal Company’s Appeal, 164 Pa. 44.
    The act does not violate the provisions of the constitution requiring uniformity of taxation: Kelly v. Pittsburg, 85 Pa. 170; Com. v. Canal Co., 123 Pa. 594; New Castle v. Cutler, 51 Pa. Superior Ct.' 612; Middletown Road, 15 Pa. Superior Ct. 167.
    February 28, 1908:
    The act is not an amendment of the eleventh section of the act of 1887 within the inhibition of section 6, article III, of the constitution: Derry Township Road, 30 Pa. Superior Ct. 538; Searight’s Estate, 163 Pa. 210; In re Greenfield Avenue, 191 Pa. 290; Pinkerton v. Traction Co., 193 Pa. 229; Incorporation of Boro, of Emsworth, 5 Pa. Superior Ct. 29.
    The act does not extend the provisions of the act of 1887, by altering the construction of its terms: In re Greenfield Avenue, 191 Pa. 290; Pinkerton v. Traction Co., 193 Pa. 229; Borough of New Brighton v. Biddell, 201 Pa. 96; James Smith Woolen Machinery Company v. Browne, 206 Pa. 543; Getz v. Brubaker, 25 Pa. Superior Ct. 303; Hood v. Norton, 202 Pa. 114.
    The language of the act plainly does not impose two duties upon the county commissioners between the discharge of which they can elect and if the act did do so they would be bound to discharge the one which is mandatory. But the word “ or ” must be read “ and ” to give proper effect to the act and sub-serve the clear intention of the law makers: Menoher’s Estate, 18 Pa. Superior Ct. 335; Murray v. Keyes,.35 Pa. 384; Rolland v. Com., 82 Pa. 306; Kelley v. Kelley, 182 Pa. 131; Dumont v. United States, 98 U. S. 142; Dwarris on'Statutes, 772; Rolland v. Com., 82 Pa. 306; Murray v. Keyes, 35 Pa. 384.
    All presumptions are in favor of the constitutionality of an act of assembly: Craig v. First Presbyterian Church, 88 Pa. 42; Sharpless v. Mayor, 21 Pa. 147; Pa. R. R. Co. v. Riblet, 66 Pa. 164; Powell v. Com., 114 Pa. 265; New Era Life Assn. v. Musser, 120 Pa. 384; Fletcher v. Peck, 10 U. S. 87, 128.
   Opinion by

Henderson, J.,

The appellants except to the decree of the court below on the ground that the act of assembly under which the proceeding was instituted is unconstitutional. The first objection is that its title is defective and, therefore, repugnant to the third section of article III, of the constitution. The title is “An Act to provide for the repair and maintenance or improvement, by the proper county, city or borough, of turnpikes heretofore or hereafter appropriated or condemned, or any part thereof, for public use free of tolls.” Then follows the enactment of the first section “ that when any turnpike, or part thereof, has been, or may thereafter be, appropriated or condemned for public use, free of tolls, under any existing laws, and the assessment of damages therefor shall have been paid by the proper county, such turnpike, or part thereof, shall be properly repaired and maintained at the expense of the county, city or borough in which the turnpike, or part thereof, lies.” There is certainly no such omission to set forth in the title the subject of the act as brings it under the constitutional prohibition. It would be a superfluous repetition to engage in the discussion of this question. Many cases hold that it is sufficient if the title fairly gives notice of the real subject so as to reasonably lead to an inquiry as to what is contained in the body of the act. Some of the later cases are: Franklin v. Hancock, 204 Pa. 110; Bridgewater Borough v. Bridge Co., 210 Pa. 105; Middletown Road, 15 Pa. Superior Ct. 167; Com. v. Meads, 29 Pa. Superior Ct. 321. Courts approach the consideration of the constitutionality of a statute with the desire and duty to sustain it, if that be practicable, and its invalidity must very clearly appear before that fact will be declared. All of the provisions of the act under consideration except the repealing clause are contained in the first section. The title not only directs attention to the subject of the act, but is a full syllabus of it and contains about one-third of the number of words found in the statute. The act has but one subject; that is, the maintenance of certain highways by the county, city or borough where such highways exist and this is set forth more fully and clearly in the title than is usual, and much more so than in many statutes whose constitutionality in this respect has been sustained by the Supreme Court.

It is further objected that the act is in violation of the sixth section of article 3 of the constitution, which prohibits the revival, amendment or extension of any law by reference to its title alone. The argument is that the áct is merely a part of a system devised for opening toll roads for the use of the public and is an amendment to the eleventh section of the Act of June 2,1887, P. L. 306. The answer to this is that the statute is in form and legislative intention a new law covering the whole subject and changing the legislation of the act of 1887. It is complete in itself. Its meaning's apparent on its face and it does not require the re-enforcement of any other statute to give it effect. Such an act does not violate the constitution though it may operate to alter or repeal a prior act: Searight’s Estate, 163 Pa. 210; Greenfield Ave., 191 Pa. 290; Emsworth Borough, 5 Pa. Superior Ct. 29. A casual glance at the statutes will disclose the evolution of the law on many subjects brought about by independent enactments incorporating new provisions which in effect amended previous legislation on the same subjects, but it never was supposed that such enactments could only be made constitutional by connecting them in terms with prior legislation. The second section repeals' all inconsistent acts and there is no foundation for the position that there is an amendment within the constitutional provision referred to.

It is further contended that the act violates the first section of article 9 of the constitution which demands uniformity of taxation. This objection is 'met by the reply that the subject of the statute is not one of taxation at all. There is no constitutional obligation on any municipal district to maintain public highways. The duty is imposed by statute and it is a matter of legislative discretion whether a highway shall be maintained by the county or by the local municipal district. It is not a matter of legal concern to the taxpayers of a borough or city that the county assumes the cost of the maintenance of a public road in a township. A county bridge and the approaches thereto are a part of the public highway often wholly in one township and are erected and maintained at the charge of the county, but no one contends that the township may not be relieved from the cost of such part of a public highway by proper proceedings in the court of quarter sessions. In such a case all of the taxpayers of the county are required to contribute to the erection and maintenance of the bridge which, before it was made a county charge, was a burden upon the local district. Highways are for the use of the public, generally, and if by reason of difficulty of construction or cost of maintenance it is deemed advisable that one of them be constructed or maintained out of the county fund, taxpayers of another township or borough have no standing to object on the ground of inequality of taxation. The cost of the maintenance of roads is necessarily greater in some districts than in others, owing to the larger mileage, the quality of the soil and the topographical conditions. The section of the constitution under consideration does not forbid the legislature to authorize the construction or maintenance of a part or the whole of a public highway at the expense of the county. We think the learned counsel are in error in supposing that any question of equality of taxation is involved in the case.

The contention that the act is local or special legislation is not maintainable. The law is general in its terms and is applicable throughout the commonwealth. Every person is affected by it who is brought within the relations and circumstances provided for. The mere fact that local results may be produced through its operation does' not necessarily render it unconstitutional. A law may by classification or otherwise produce diversity of result and yet be general where the classification is based on a real distinction. It is for the legislature to determine the expediency of the law: Evans v. Phillipi, 117 Pa. 226; Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44; Stegmaier v. Jones, 203 Pa. 47; Com. v. Brown, 210 Pa. 29; Middletown Road, 15 Pa. Superior Ct. 167. Every county similarly situated as to condemned or abandoned turnpikes is within the operation of the statute. None are excluded because of any local condition or circumstance. It is also argued that there is an inconsistent election allowed to county commissioners with reference to the manner of maintaining the road because, of the Act of June 26, 1895, P. L. 336. These acts are not incompatible and relate to different subjects. The latter act provides for the permanent improvement of certain public highways and makes such improved highways county roads. The act of 1905 relates solely to the repair and maintenance or improvement by the proper county, city or borough of appropriated or condemned turnpike roads. If any question of election arose the opinions in Middletown Road 15 Pa. Superior Ct. 167, and Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, fully answer the argument. None of the objections to the constitutionality of the law are sustained.

The decree is affirmed.  