Appeal, No. 207, March T., 1953, from order of Court of Common Pleas of Erie County, Feb. T., 1953, No. 195, in case of Commonwealth of Pennsylvania ex rel. Damian J. McLaughlin, District Attorney v. County of Erie, Fred W. Lamberton, Carl D. Proctor and Louis Rzymek, County Commissioners. Order affirmed.
Maurice J. Coughlin, Assistant City Solicitor, with him Gerald J. Weber, City Solicitor, for appellant.
J. B. Held, County Solicitor, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from an order of the court below sustaining a preliminary objection in the nature of a demurrer interposed by the defendants, in a proceeding in mandamus to compel the County of Erie to allocate a portion of the monies received by it from the Commonwealth of Pennsylvania Liquid Fuels Tax Fund to
the City of Erie for the years 1945 through 1952 inclusive.
The litigation arises out of the provisions of the Act of May 21, 1931, P.L. 149, as variously amended, the last amendment being the Act of May 29, 1951, P.L. 485, 72 PS § 2611j. The original Act of 1931 provided that one-half cent per gallon of the liquid fuels tax after payment into the State Liquid Fuels Tax Fund should be distributed in a ratio not necessary to recite, to the respective counties of the Commonwealth, to be used only for highway and bridge purposes. There was no provision for distribution to political subdivisions other than counties.
By the Act of May 18, 1945, P.L. 803, Section 10 of the Act of 1931 was amended to provide for the deposit of county allocated tax money in a special County Liquid Fuels Tax Fund into which no other money was to be deposited or commingled. The amendment further provided for the allocation by the counties of money out of such fund to the political subdivisions of the county. Certain contingencies and ratios were established to limit the distribution thus authorized. The subsequent amendments to the Act of 1931, including the amendment of 1951, substantially reiterated the language of the 1945 amendment.
Plaintiff's complaint, as amended, averred, inter alia, that since 1945 the County Commissioners of Erie County have received from the Commonwealth's Liquid Fuels Tax Fund annually more than $200,000; that the City was informed and believed that the County would similarly receive a sum in excess of $200,000 on or about December 20, 1952; that the City of Erie on January 3, 1946, September 5, 1947, February 18, 1949, June 23, 1950, January 19, 1951 ...