The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-13
SIDE PATH LAW is
UNCONSTITUTIONAL
Opinion of President Judge Edwards
in the Case of Herman Osthaus
Against the City.

In case stated between Colonel
Herman Osthaus and the county of
Lackawanna passed upon in an opin-
ion handed down yesterday by Prcs-
dent Judge II. NJ. Edwards, he decides
that the act of the legislature provid-
ing for a tax on bicycles and the con-
struction of sdepaths is unconstitu-
tIonal.
The case was brought as a test to
ascertain the validity of the act. The
opinion follows:
The only question to be considered
in the disposition of this case is the
constitutionality of the Act of April II ,
1899, r. l.. SO. entitled AN act provid-
ing for thu" construction and maintcn-
anCe of side paths along the highways
in the townships of the commonwealth
for the use of bicycles and pedestrians;
providing for the appointment of side
path commissioners, prescribing their
duties and the duties of the assessors
in the assessment of bicycles: provid-
ing for levying collecting and disburse-
ment of tax on bicycles
This act provides for the appoint
ment of three resident wheelmen as
side path commissioners, who shall eX-
pend the bicycle tax in constructing
and maintaining side paths along the
sides of highways in townships, be-
tween the roadway proper and the land
abutting thereon
1t is claimed by the plaintiff that the
act is in conflict with Article Ill, Sec
ton 20, of the constitution, which or
dams that the general assembly shall
not delegate to any special commits
sion, private corporation, or assoCia =
tion. any power to make. supervise or
interfere with any municipal improve
GfA-
whether held in trust or otherwise, or
to levy taxes or perform any municipal
function whatever"
1t cannot be questioned that town
ships are municipal corpora tions. They
are so recognized in the constitution in
several places. notably in Article IN,
Section s, and in Article XIV Sec
tion 6.
We cannot escape the conclusion tina t
the "sde path commissioners" conSti-
tutc special commission" and that
the act Of assembly gives them the
power to make, supervise or interft re
with municipal improvement" and to
perform municipal function"
The act is SO plainly unconstitutional
that we are surprised it passed the
legislature and the scrutiny of the law
department of the state government
It's enactment was undoubtedly due to
laudable desire on the part of the
legislature to serve the interests of
the whcelmen Of the state and to Sc
cure good roads, In following the de-
cisions of several other judges who
nave declared the act unconstitutional,
we do not wish to be understood as
deciding that the purpose and subject
matter of the act are not within the
purvieW of the constitution. 1t is law
ful to tax bicycles and il is lawful to
use the money raised by such taxation
in providing side paths and in the i'm
provement of the public roads of the
commemorative; but the work must he
done by such officers as are recognized
by our organic law, or, at least, it cam
not be delegated to anybody in the face
Of a constitutional prohibition
In accordance with the terms of the
case stated, We decide for the plaintiff,
and direct that judgment be entered in
favor of the plaintiff and against the
defendant in the sum of one dollar and
costs,