I am not in accord with the majority opinion filed in these two appeals. The provisions of the Act of April 7, 1927, P. L. 161, amending the Act of April 28, 1903, P. L. 332, under which the otherwise valid annexation of a portion of Baldwin Township, Allegheny County to the adjoining City of Pittsburgh, is being struck down because the state council of education, a board appointed by the governor, has not given its approval, is patently unconstitutional in that it permits the withholding of such approval to bar the desired annexation. Article III, section 20, of the state Constitution expressly restricts the legislature from delegating municipal functions to special commissions; it provides that "The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever." The whole tenor and prescription of the Act of 1903, which expressly provides that notice of the proposed annexation shall be given the city's chief executive, and permission for annexation shall, if granted, emanate from the city's council in the form of an ordinance, render the permissive part of annexation proceedings very definitely a "municipal function." In granting its permission, the City of Pittsburgh, in the present case, performed a municipal function whose effect, in scope and purview, was infinitely larger than consideration of annexation of schools and school districts could possibly entail. In so far as the amendment of 1927 allows refusal of approval by the state council of education to invalidate the annexation now before us, and, in so doing, operate outside of the very limited field in which the council of education has a right to act, it violates article III, section 20, above referred to. Inasmuch as the amendment of 1927 permits the council of education to overstep its proper field *Page 498 of activity and veto the political and governmental aspects of an annexation under the Act of 1903, in any and all cases, it should be declared unconstitutional. The definition and authority of the state council of education is contained in the Act of May 20, 1921, P. L. 1014, 1016 et seq. amending the School Code. That act may be searched in vain for authority justifying the council in "legislating" against proposed annexations such as the one here before us. The state council of education, under the law defining that body and its powers, is obviously an improper arbiter, outside of school considerations, of annexations under the Act of 1903.
The amendment of 1927 provides "that in proceedings for the annexation of part of a township no decree of annexation shall be entered until the state council of education, after due inquiry into the consequent effect upon the school districts affected, shall approve in writing of the proposed annexation." The amendment does not provide that annexation proceedings shall terminate or legally conclude the proposed annexation if the education council withholds its approval. The word used is "until," not "unless." It is also apparent that the amendment does not specify a time at which the council of education shall act, does not prescribe the effect of its disapproval, does not provide for appeal from its decision or even require it to report its decision to any official or lawful body. The delegation by the legislature to the council of education of the ultimate decision — obviously discretionary — in approving or disapproving annexations may, therefore, be seriously questioned, first as to propriety under sections 1 and 20, article III, of the Constitution, and irrespective of propriety, then, as to mode, manifestly the delegation is loose, general and indefinite to such extent as to render the legislation ineffective.
As stated in the dissenting opinion filed in the Superior Court in this case by Judge KELLER and concurred in by President Judge TREXLER, "a council whose powers *Page 499 are limited to the public school system can exercise no valid authority over the functions of municipalities and quasi-municipalities, apart from school affairs." Clearly the questions for determination by the council of the City of Pittsburgh, to which annexation was proposed, were "apart from school affairs." Since the council of education is here authorized to exercise "special and unusual power" exceeding its ordinary functions and to perform a function "alien" both to it and to the lawfully prescribed duties of the municipality (in annexation proceedings) and which is over and above school considerations, therefore the empowering act is unconstitutional and should be so declared by this court.
For the above reasons, I enter my dissent.