#### Harrisburg, Appellant, *v.*Harrisburg Gas Company.

*Taxation*— Cities *of the third class*— Corporations—Statutes—Repeal— *Acts of March*19, 1860, *P. L.*175, *April*22, 1868, *P. L.*1136, *May*23, 1874, *P. L.*230 *and May*23, 1889, *P. L.*277.

The local Acts of March 19, 1860, P. L. 175, and April 22, 1868, P. L. 1136, authorizing the city of Harrisburg to impose taxation on corporations for city purposes, are repealed by the Acts of May 23, 1874, P. L. 230, and May 23, 1889, P. L. 277, which provided for the creation of cities of the third class, and for a complete system of taxation therein.

Argued June 3, 1907.

Appeal, No. 3, May T., 1907, by plaintiff, from judgment of Superior Ct., March T., 1905, No. 11, reversing judgment of C. P. Dauphin Co., Mechanic’s Lien Docket No. 1, No. 171, for plaintiff on case stated in suit of City of Harrisburg v. Harrisburg Gas Company.

Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.

Affirmed.

*77Appeal from the Superior Court. See 31 Pa. Superior Ct. 530.

The opinion of the Superior Court by Porter, J., was as follows:

The case stated presents but one question — whether the city of Harrisburg, a city of the third class, has the power to tax for general revenue purposes the real estate of the Harrisburg Gas Company, a duly organized public corporation, authorized under its charter to manufacture gas, for heating and illuminating purposes, and supply the same to the public in said city; said property being used by the gas company exclusively in its business of manufacturing and supplying gas to the public in the city of Harrisburg, as authorized by its charter, and necessary and indispensable to the exercise by the company of its franchise and the discharge of the public duty imposed by its charter.

The Act of March 19, 1860, P. L. 175, incorporating the city of Harrisburg, in section 24 provides for the election of an assessor by the qualified voters of each ward of the city, the manner in which property subject to taxation shall be assessed, and “ That the assessors, in making such assessment of property in the city of Harrisburg, shall assess all the property which is now by law subject to taxation for borough purposes in the said borough of Harrisburg, and shall also assess for taxation, for city purposes, the real estate of all incorporated companies within the limits of the said city, except the real estate of the Pennsylvania Railroad Company, the Harrisburg *&*Lancaster Railroad Company, the Cumberland Talley Railroad Company, the Reading Railroad Company, and the several cemeteries, together with the buildings thereon erected.” The charter of the city was amended, and its taxing power increased by the Act of April 22, 1868, P. L. 1136, which contained the following provisions : “ That all real estate situated in said city, owned or possessed by any corporation except religious and educational corporations, shall be and is hereby made subject to taxation for city purposes, the same as other property in said city ; any law or laws contrary to or' inconsistent with this section are hereby repealed. That the city councils are hereby empowered to levy, assess and collect for *78the use of the city, an annual tax, not exceeding one-third of one mill per dollar on the average quarterly business of all insurance companies, insurance agencies, express and telegraph companies, or other agencies or corporations doing business in said city, which do not now pay city tax.” The above recited provisions of the statutes are very clear and comprehensive, and, unless they have been repealed by later legislation, the real estate of the appellant company is by them rendered subject to taxation: Pennsylvania Railroad Company v. Pittsburg, 104 Pa. 522; Philadelphia v. Philadelphia Traction Company, 206 Pa. 35. The city of Harrisburg duly accepted the provisions of the Act of May 23, 1874, P. L. 230, entitled “ An act dividing cities of this state into three classes .... and providing for the incorporation and government of cities of the third class,” in the manner provided by sec. 57 of said statute; and the governor of the commonwealth, on August 25, 1874, duly certified the surrender of the former charter of the city and the acceptance of the provisions of the act of 1874. The city of Harrisburg is, therefore, a city of the third class, and subject to the provisions of the Act of May 23, 1874, P. L. 230, and the Act of May 23, 1889, P. L. 277, entitled “ An act providing for the incorporation and government of cities of the third class.” The question is whether these statutes relating to the classification of cities and the government of cities of the third class repeal the local and special provisions relating to taxation contained in the act of 1860 and the act of 1868, above recited, conferring peculiar powers of taxation upon the city of Harrisburg.

The act of 1874, in dealing with the taxing power of cities of the third class, authorized such cities, in clause 1 of sec. 20, “ To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar, in any one year, on all the real, personal and mixed property within the limits of said cities, taxable according to the laws of the state of Pennsylvania, the valuation of such property to be taken from the assessed valuation of the taxable property therein made under the provisions of law regulating the same.” This statute did not designate the property which should be subject to taxation, nor provide for the manner in which the valuation of that property should be assessed; the property subject to taxation, *79the mode in which the assessors should be chosen and the manner in which their duty should be discharged were left to be determined under the laws already in force in the several cities, respectively. This statute was, however, inconsistent with the acts of 1860 and 1868 in that it fixed the limit of the levy in any one year at ten mills, no such limitation being found in the earlier statutes, and, further, in that, in sec. 36, it provided a new and entirely different manner of collecting taxes. The act of 1871 provided that the powers of cities of the third class “ shall be and remain as now provided by law, except where otherwise provided by this act.” It is not asserted that the city has attempted to levy taxes to exceed ten mills on the dollar in any one year upon the property of the appellant, and if the power of the city to levy a tax upon the real estate of the corporation has been taken away, it must be because of a later statute.

The Act of 1889, P. L. 277, provided a complete system of taxation for cities of the third class, designated the property and occupations which should be subject to tax, enacted that the assessors who should fix the valuation of such property should be chosen by the qualified electors of the city, not of the several wards, ordained the manner in which such assessors should discharge their duties, created a board to hear and determine appeals from such assessments, designated the officer to whom taxes should be paid, provided a manner for enforcing payment, and fixed penalties for failure to pay the tax after it became due. The system thus provided is from beginning to end inconsistent wfith that which was authorized by the local acts of 1860 and 1868 applicable to the city of Harrisburg alone. The provision wTiich is material to the present inquiry is that which designates the property which shall be subject to tax. The act of 1889 authorized and empowered cities of the third class : “ To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar in any one year, on all persons, real, personal and mixed property within the limits of said city, taxable according to the laws of the state of Pennsylvania for county purposes ; the valuation of such property to be assessed as hereinafter provided.” The statute also authorized the collection of a tax, upon the same property, for the purpose of paying interest on bonded indebt*80edness and for the payment of loans to support the government and make the necessary improvements in said city, and it also authorized the imposition of a poll tax not to exceed $1.00 and a license tax not exceeding $100 annually upon certain businesses and occupations. The real estate which under this act is subject to be taxed for city purposes, by a city of the third class, is such as is taxable for county purposes. This provision is'inconsistent with the provisions of the acts of 1860 and 1868, which authorized the city of Harrisburg to levy taxes upon property which had been subject to taxation “ for borough purposes in the borough of Harrisburg,” and upon the real estate of corporations located within said city. The act of 1889 provided that: “ All acts or parts of acts inconsistent herewith, or supplied by the provisions hereof, be and the same are hereby repealed.”

The parties have expressly agreed in the case stated that the real estate of the Harrisburg Gas Company, which the city seeks to tax, is not taxable according to the laws of the state of Pennsylvania for county purposes, that this agreement but states the law is well settled: Bridge Co. v. Frailey, 13 S. *&*R. 422; Schuylkill Navigation Co. v. Berks County, 11 Pa. 202; Wayne County v. Canal Co., 15 Pa. 351; West Chester Gas Co. v. County of Chester, 30 Pa. 232; Coatesville Gas Co. v. County of Chester, 97 Pa. 476; Southern Electric Light & Power Co. v. Philadelphia, 191 Pa. 170; People’s Passenger Railway Co. v. Taylor, 22 Pa. Superior Ct. 156; Philadelphia v. Electric Traction Co., 208 Pa. 157; Railway Co. v. Venango County, 5 Pa. Superior Ct. 304. Real estate held and used as is that of the appellant would not be taxable for city purposes, under the provisions of the act of 1889, in any city of the third class in the commonwealth other than Harrisburg. The legislature of the commonwealth, in the act of 1889, defined and limited the powers of cities of the third class for purposes of taxation, and the special provisions of the acts of 1860 and 1868 are inconsistent with and repugnant to the provisions of the later statute.

Chief Justice Mitchell, in Commonwealth v. Brown, 210 Pa. 29, in dealing with the question of the repeal of a local and special act by a later general statute, after a painstaking review of the authorities, thus summarizes his conclusion : *81
      *“*First, the rule that a general statute does not repeal by implication a local act with different or inconsistent provisions, is still the prevailing rule. Secondly, but the rule being founded on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent. Thirdly, where the clear general intent of the legislature is to establish a uniform and mandatory system as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed. Fourthly, where an act is passed to carry into effect a mandatory general provision of the constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.” The learned Chief Justice says, in the same opinion, “ What the cases decide and are authority for, is that as the legislative intent in the classification of municipalities is apparent, to make a uniform system and framework of government, public officers, powers and duties in each class, the presumption is that as to such matters local acts must give way to the general act of classification whenever they conflict.” When the legislative intention to provide a uniform system for all subjects to which it relates clearly appears, no repealing words are necessary: Chalfant v. Edwards, 176 Pa. 67; Quinn v. Cumberland County, 162 Pa. 55. This case is squarely ruled by Commonwealth ex rel. McKirdy v. Macferron, Treasurer of Allegheny City, 152 Pa. 244. The city of Allegheny had not accepted the provisions of the act of 1874, and had continued to be governed under its special charter and laws until 1890, when because of increase in population it became a city of the second class, and it no longer had the option to continue its old form of government, but must pass into and be governed by the laws relating to cities of the second class. Among the local and special laws by which it had been governed under its old charter was a complete taxing system, which, like that of the city of Harrisburg, was somewhat peculiar. The relator in that case attempted to pay his taxes in the old manner, the city treasurer refused to accept the tax, and McKirdy, the relator, proceeded by mandamus. The case reached the Supreme Court and is reported as above cited, and it was held : “ It is clear, therefore, that in order to adjust itself to the class into which it has come, this city must leave its. old system behind it, and *82take on that which the law has prescribed for it as a member of the second class. This is rendered still more apparent when we remember that the power to levy and collect taxes is one of the ‘ corporate powers ’ which the classification acts have undertaken to regulate, and that the officers through whom such levy and collection are made are £ corporate officers,’ whose powers and duties are defined and adjusted by the same acts. If no provision for the levy and collection of taxes in cities of the second class had been made, the system previously in existence in such cities would have remained undisturbed under the express declaration of the first section of the act of 1874; but to the extent to which the law has regulated the exercise of the taxing power, or modified the powers and duties of the officers through whom it is exercised, to that extent the old system is superseded by the new.” Mr. Justice Williams, who spoke for the Supreme Court in Commonwealth v. Macferron, thus states the rule : ££ Whenever, therefore, any law regulating the municipal affairs of cities of a given class shall be found to conflict with a previous local statute applicable to any member of the class relating to the Same subject, the .latter must give way by reason of the nature and purposes of class legislation. In this manner existing diversities will gradually disappear, and uniformity throughout the class will be finally secured.”

The power to levy and collect taxes is one of the corporate powers of cities of the third class, which the classification acts have undertaken to regulate ; the act of 1889 provides a complete system for the levy and collection of taxes in cities of the third class, and as the local acts relating to the city of Harrisburg come into conflict with that statute, *“*the latter must give way by reason of the nature and purposes of class legislar tion.” The local acts, authorizing the city to impose taxes upon the real estate in question having been superseded by the classification acts, the city was without authority to impose the taxes which are the subject of this litigation.

The judgment of the court below is reversed, and judgment is now entered for the defendant with costs.

*Error assigned*was the judgment of the Superior Court.

*Daniel S. Seitz,*city solicitor, for appellant.

*83
      *A. C. Stamm,*with him *M. E. Olmsted,*for appellee.

June 25, 1907:

Per Curiam,

The judgment is affirmed by a majority of the court on the opinion of the Superior Court.