Commonwealth ex rel. Liem v. Robinson

Opinion by Beaver, J., It was definitely settled in Com. v. Smoulter, 126 Pa. 137, that a retail liquor dealer within the city of Wilkes-Barre was required to pay the sum of $500 for a license to sell intoxicating drinks under the license Act of May 13, 1887, P. L. 108. The decision in that case was based upon the fact that, under the classification of cities made by the Act of May 23, 1874, P. L. 230, Wilkes-Barre was a city of the third class. On the 8th of May, 1889, P. L. 133, an act of the legislature was approved “ dividing the cities of this state into three classes with respect to their population and designating the mode of ascertaining and changing the classification thereof in accordance therewith.” Under the provisions of this act, all the cities of the commonwealth were divided into three classes, those containing a population of under 100,000 constituting the third class. The license fee claimed by the treasurer of Luzerne county from the relator, under the provisions of the Acts of June 9, 1891, P. L. 248, and July 30, 1897, P. L. 464, is $550. It is practically admitted by the appellant that, if the classification of cities provided by the act of May 8,1889, is valid, he should pay the amount claimed. He argues, however, that the Act of May 23, 1889, P. L. 277, providing for the incorporation and [573] government of cities of the third class, repeals or at least modifies the classification act of May 8,1889, supra. This argument is based upon a construction of article 19 of the Act of May 23, 1889, P. L. 277. An inspection of this article, however, clearly indicates that there is no intention on the part of the legislature to repeal the classification act. The first section provides that “ the term 4 cities of the third class ’ shall include ” those which are described in the section. This, however, is simply a definition of the term as used in the act itself and does not provide for a new classification nor in any way interfere with that previously provided by the act of May 8, 1889, supra. The second section of this article repeals only those acts or parts of acts which are inconsistent with or supplied by the act itself. The latter act is one simply of classification and the former recognizes the classification previously made in its title and throughout all its provisions. As was said in Lackawanna Township, Harris’s Appeal, 160 Pa. 494, “For purposes of classification all cities not belonging to the first or second class belong to the third. For purposes of municipal government only so many of these belong to the third class in the legislative sense of the words as have taken on the municipal uniform which the legislature has provided for the class.” For the purpose of classification the status of the city of Wilkes-Barre is fixed by the act of May 8, 1889, and, being so fixed, applicants for retail liquor licenses within the municipality must pay the amount required to be paid by the several acts of assembly relating thereto in cities of the third class. The court below was clearly right in refusing the mandamus asked for in the case stated and the judgment is affirmed.