dissenting:
I find myself unable to agree with the majority of the court that the court below erred in granting the petitioner’s license, and I desire to place upon the record some of my reasons for dissent.
*650The important questions are raised by three several acts of assembly relating to intoxicating liquors in the county of Potter.
The first is an act entitled “ An act to prohibit the issuing of licenses within certain boroughs of the counties of Armstrong, Potter, Indiana and Perry, or within two miles of the same, in the counties in which such boroughs are located.” This- act applied to the borough of Coudersport in the county of Potter, and it was approved March 27, 1866, P. L. 339. The next is an act entitled “ An act to prohibit the granting of licenses to sell intoxicating drinks within the county of Potter.” This act was approved April 11, 1866, P. L. 658.
Then comes an act entitled “ An act to repeal an act approved the 11th day of April, Anno Domini, one thousand eight hundred and sixty-six, entitled ‘ An act to prohibit the granting of licenses and sale of intoxicating drinks within the county of Potter,’ and submit the same to the voters of said county.” This act was approved April 28, 1899, P. L. 68.
The first question is, did the second or Potter county act cover the whole question within the county of Potter, and is it so in'conflict with the first act in regard to the same subject, in Coudersport borough, that it repealed that act by implication ? I think a comparison of the two acts makes it plain that they are in conflict and being local acts upon the same subject the subsequent act repealed the former. The Potter county act of April 11, 1866, by its title as well as its terms seems beyond all question to have been intended by the legislature to apply to the whole county of Potter. It materially differs in its terms and penalties from the Coudersport borough act of March 27, 1866, and while the second act contains no repealing words it must be presumed that the legislature intended it to také the place of the Coudersport act. This question has been so concisely stated by the learned, counsel for the appelleethat I will quote their language : “ It is an affirmative statute revising the whole subject-matter and expressly contradicting the provisions of the former statute, and following the decisions of our Supreme Court must be construed as introducing a new law upon1 "the subject and evidently intended as a substitute for the former enactment, and although it contains no express words to that effect, must upon the principles of law as *651well as in reason and common sense operate to repeal the former.”
If authority is wanted on this subject see Nusser v. Com., 25 Pa. 126 ; Johnston’s Estate, 83 Pa. 511; McCleary v. Allegheny County, 163 Pa. 578; Com. ex rel. v. Grier, 152 Pa. 176, and In re contested Election of Martz, 110 Pa. 502. In my opinion a careful reading of the two acts of assembly in the light of the above authorities effectually disposes of the Coudersport prohibitory act of March 27, 1866, because it was repealed by the Potter county prohibitory act of April 11, 1866, supra.
This brings me to a consideration of the act of April 28, 1899, 'supra. The first section reads: “ That the act of the general assembly, approved the 11th day of April, Anno Domini, one thousand eight hundred and sixty-six, entitled ‘ an Act to. prohibit the granting of licenses and sale of intoxicating drinks within the county of Potter,’ be and the same is hereby repealed.
“ Section 2. Provided, said repeal shall not go into effect unless a majority of duly qualified voters of said county shall vote in favor of said repeal, at an election to be held as provided for in section 3 of this act.”
The remaining two sections of the act need not be quoted. They provide for the vote of the electors of the county, the time when the elections shall be held, the ballots, who shall hold the elections, the counting and making return to the clerk of the quarter sessions of the proper county, duly executed, as required by law as to other ballots, and that the clerk shall make a record of the same. And some other matters in regard to the holding of the election, which are not material in this discussion. It will at once be seen that the important question is, does this act repeal the Potter county act of April 11, 1866 ? If it does the court below did not err in granting the,appellee’s license. In my opinion this act absolutely repealed the Potter county act, supra, and it attempted to delegate no legislative power to the voters of Potter county. This question is ruled by the elaborate and able discussion by Agnew, J., in Locke’s Appeal, 72 Pa. 491.
The rule in Locke’s Appeal was considered by the Supreme Court, opinion by Williams, J., in O’Neil et al. v. Artisan’s Ins. Co., 166 Pa. 72, where it is said : “ That inasmuch as the law *652with all its provisions and its penalties was complete when it left the legislature, and the only question submitted to the electors of the locality was whether they desired this law to become operative in the subdivision of the state in which they lived, such submission did not amount to a delegation of legislative power. No provision or requirement of the law was left to be supplied in order to make it complete in all its parts,- but the vote of the electors served to give expression to their wish in reference to the subjection of the locality they represented to its already finished provisions. It has frequently been held that local questions may be submitted in this manner to those who are to be directly affected by their decision. The division of a county is such a question, and a law submitting the question to a popular vote and making the division depend on the result of the vote was sustained in Smith v. McCarthy, 56 Pa. 359. So is the location of the county seat: Com. v. Painter, 10 Pa. 214. So also is the granting of licenses to sell intoxicating drinks : Locke’s Appeal, 72 Pa. 491. Such laws are in form and in substance laws in presentí to take effect in futuro upon the ascertainment of the wish of those most directly affected thereby.” In Speer v. School Directors, 50 Pa. 150, Agnew J., quoted approvingly (p. 158): “ There is another rule which must govern us in eases like this, namely, that we can declare an act of assembly void only when it violates the constitution clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in our minds.” See also Sharpless v. Mayor, 21 Pa. 147, Hilbish v. Catherman, 64 Pa. 154, and Durach’s Appeal, 62 Pa. 491; also Jermyn v. City of Scranton, 186 Pa. 595.
In the light of the principle that legislation should be upheld unless clearly unconstitutional is it not the duty of the court to uphold the act of April 28, 1899, if this can be done by fair and legal judicial construction ? Let us suppose that the second section of this act had provided that no license should be granted in the county of Potter until the question had been submitted to the voters in the manner provided in said act. In that case it hardly seems possible that an argument could be made against the constitutionality of the act. It is true that the language used in the second section that the ballots shall contain the word “ repeal ” and “ no repeal ” is not the *653best language that' could be used by the legislature. But in view of the well known rule that there cannot be a delegation of legislative power to the people, is it not the duty of the court to construe this language to simply mean that notwithstanding the repeal of the Potter county prohibition act, yet no license shall be granted in the county of Potter, under the general license laws, until the question of “ license ” or “ no license ” shall have first been submitted to a decision of the voters of said county ? If such construction can be properly given to the act of 1899, then all difficulties disappear. The appellants cite and seem to rely on Frost v. Cherry, 122 Pa. 417. But that case has no application to the question now under consideration. There the legislature authorized a vote upon the question of whether or not the Act of June 23, 1885, P. L. 142, repealing the fence law of 1700, should go into effect, this vote to be taken by counties. The question of a delegation of legislative power was attempted to be raised in that case, but the court below and the Supreme Court refused to consider it upon that ground. The decision of the Supreme Court was that the act of 1885 was unconstitutional, because it related to the affairs of counties and would, if upheld, be in violation of section 7, article 3 of the constitution in that its effect would be to establish local or special laws in relation to the affairs of counties. For example a county voting in favor of the law going into effect would have the fence law of 1700 repealed, and a county voting against said law going into effect would have the fence law of 1700 in full force and effect, if the legislation had been valid. This would be special or local legislation in regard to the affairs of counties and such legislation was strictly prohibited by the article and section of the constitution, supra. No such effect can be claimed for the act of April 28, 1899, repealing the Potter county prohibition act. Instead of such an effect, if the act is upheld, it will do away with the local legislation in Potter count}*, in regard to liquor licenses, and bring that county under the general license laws of the state. For myself I can see no legal difficulty in so construing these three acts of assembly as to place that county under the general license laws of the state, at any time when the voters of the county shall vote in favor of license, as provided in the act of 1899.
*654It is contended that the act of 1899 is defective in that it does not provide any legal method by which the court of quarter sessions can be properly advised of the result of the election provided for in the act. It does not seem to me that this question requires much consideration at this time. The act does provide for an election, by whom it shall be held, the form of the ballots, counting the same and making return thereof to the clerk of the court of quarter sessions of the proper county, as required by law as to other ballots, and the clerk shall make a record of the same. The learned judge who granted the license, appealed'from in this case, was the judge of the court of quarter sessions of Potter county, and it ought to be presumed that the record of the vote required to be made in his court was made, and that he was fully advised in regard thereto before passing upon the question of license or no license. All of the presumptions are in favor of the fact that the election resulted in a majority of the votes cast being in favor of license, and that the learned judge found this record made up in his court by the clerk as the law required him to do.
I would affirm the order of the court below and dismiss the appeal at the costs of the appellants.
This appeal and Nos. 189,190, 191, 192 and 193 raise precisely the same questions and this dissent is intended to apply in each case.
Rice, P. J., joins in dissent.