Porter v. Shields , 200 Pa. 241 ( 1901 )

Opinion by

Mk. Justice Mitchell,

The side paths authorized by the act in question are clearly intended to be parts of the highway. They are to be constructed and maintained “ along the highways of the townships,” (sec. 1), and are to be built “ along the sides of highways .... between the roadway proper and the land abutting thereon ” (sec. 6). No power is given by eminent domain or otherwise to widen the highway, but merely to devote a certain part of it to the special use of foot passengers and bicyclers, analogous to that of sidewalks in cities and towns, with the important difference in practical use though not in legal result, that bicycles are to have the right of way. Being thus part of the highway their construction, maintenance and regulation are properly parts of the municipal function of maintaining the public roads, which in townships is vested in supervisors. The transfer of any part of their powers and duties in this regard to the side path commissioners is a transgression of the prohibition in article 3, section 20 of the constitution against the delegation to a special commission of the “power to make or interfere with any municipal improvement .... or to perform any municipal function whatever.”

If the intent of the act, as contended, was not to create special commissions, but to provide for officers with powers not now possessed by townships, then the further objection arises that they are county officers and as such cannot be appointed as directed by the act, but must be elected at the general election. The act requires that the commissioners shall be resident wheel-men of the county, appointed by the court of quarter sessions of the county, upon the petition of at least twenty-five freeholders, residents of the county. There is to be but one set of commissioners for the county, and their functions extend to all the townships in the county. The tax is on the bicycle owners in the county and it is to be levied by the county commissioners and collected and paid to the county treasurer as county taxes are collected and paid. The conclusion' is unavoidable that if the commissioners are not to be regarded as a special commission but as officers with new municipal powers and duties in regard to highways, then they are county officers and the mode of their selection by appointment is prohibited by the constitution.

Both parties to this controversy have expressed regret, and probably with justice, that so desirable an improvement in the public roads should fail. But if there is the general sentiment in its favor, which is claimed, there should be little difficulty in the framing and passage of an act empowering the regular county or township authorities to make the desired changes in the public roads, and providing by assessment, or tolls, or otherwise, for the necessary expense.

Judgment affirmed.