Reid v. Smoulter

1. As a general rule an amendatory statute declaring that a prior statute shall read in a particular way, operates to repeal all provisions of the prior statute not incorporated into the amendment, but if such operation would produce a result transcending constitutional authority, this rule of construction will not be applied. 2. When, in compliance with a mandate of the constitution, the legislature has enacted a statute erecting a certain court and providing for the appointment of its officers, it is afterwards beyond the legislative power wholly to undo its work by abolishing such court, or such offices connected therewith as the constitution provides for. 3. Under § 22, article Y. of the constitution, the legislature might have power to restore the Orphans’ Court jurisdiction to the Common Pleas judges in a county falling below 150,000 in population, but even if so, it would clearly be incompetent to abolish the separate Orphans’ Court in such a county, or its offices, without such a restoration of jurisdiction. 4. WHben the legislature has passed an act fixing the salary of an office established by the constitution, such act may not afterwards be repealed without the substitution of another provision in its stead; because to abolish the salary wholly is virtually to remove the officer, which is not within the legislative power to accomplish. 5. The act of April 13, 1887, P. L. 22, amending § 5, act of May 19, 1874, P. L. 206, is not in conflict with §§ 3 and 7, article HI. of the constitution, as being defective in its title or local or special in its operation, although such amendatory act does not repeal or affect the original act, so far as relates to Luzerne county.

No. 422 January Term 1889, Sup. Ct.; court below, No. 959 October Term 1888, C. P. On October 4, 1888, Henry A. Reid presented his petition, averring that he was the duly appointed assistant clerk of the Orphans’ Court of Luzerne county; that John Smoulter, Jr., was the treasurer of said county; that there was due and owing to the petitioner, as assistant clerk of said Orphans’ Court, one quarter’s salary amounting to $450, a duly attested and countersigned bill for which had been presented by the petitioner to said treasurer; that said treasurer refused to pay said bill, alleging that the act of April 13, 1887, P. L. 22, fixing the salaries of assistant clerks of the Orphans’ Courts, repealed and supplanted the act of May 19, 1874, P. L. 206, under which the petitioner claimed payment of said bill; that at the time of the passage of said act of April 13, 1887, the county of Luzerne, as then organized and constituted, contained according to the U. S. Census of 1880 a population of 133,065;—praying for a mandamus commanding the said treasurer to pay to the petitioner the amount of his said bill, or for a rule upon him to show cause why such a mandamus should not be issued. A rule to show cause why a mandamus should not issue, as prayed for, was granted and issued, in response to which John Smoulter, Jr., filed an answer admitting all the facts alleged in the petition, but denying that as matter of law the office of assistant clerk of the Orphans’ Court existed in Luzerne county, for the reason that said office was abolished by the act of April 13, 1887, P. L. 22. After argument the court, Rice, P. J., discharged the rule, filing the following opinion: The relator was duly appointed assistant clerk of the* Orphans’ Court at the beginning of the term of office of the present register of wills, in January, 1888. The defendant is the county treasurer. The only question presented for decision is whether the provisions of the act of May 19, 1874, P. L. 206, relating to the salary of the assistant clerk of- the Orphans’ Court, are in force in this county. We say that is the only question; for, while it is suggested in the answer that the office was abolished by the act of April 18, 1887, P. L. 22, yet, as the constitution expressly authorizes the register of wills, and ex-officio clerk, in all counties where a separate Orphans’ Court is established, to appoint such an assistant, the proposition is not insisted upon by the defendant’s counsel. At the time of the adoption of the constitution, the only counties having over 150,000 inhabitants were Philadelphia, Allegheny and Luzerne. In obedience to the mandate of the constitution, the legislature established a separate Orphans’ Court in each of said counties, naming them: Act May 19, 1874, P. L. 206. The fifth section of the act was as follows: “ The register of wills of each of the counties of Philadelphia, Allegheny and Luzerne, shall be clerk of such court, and subject to its directions in all matters pertaining to his office ; he may appoint assistant clerks, but only with the consent and approval of said court, not exceeding.....one in the county of Luzerne, who shall receive annual salaries, pajmble quarterly by the treasurer of said respective counties, as follows, to wit:.....which salaries shall be paid upon bills attested by said register and codntersigned by a judge of said court.” Lackawanna county was taken from Luzerne in 1878, and according to the census of 1880, which for present purposes must be taken as the standard, we must assume that the county now has less than 150,000 inhabitants: Luzerne Co. v. Glennori, 109 Pa. 564. The act of April 13, 1887, P. L. 22, amends the fifth section of the act of 1874, reciting the section at length, “so as to read: Section 5. The register of wills of each and every county containing over one hundred and fifty thousand inhabitants, in which a separate Orphans’ Court is or may be hereafter established, shall be clerk of such Orphans’ Court and subject to its directions in all matters pertaining to his office; and he may appoint assistant clerks, but only with the consent and approval of said court, who shall receive annual salaries payable monthly by the treasurer of said respective counties as follows, to wit: The first assistant, two thousand dollars ; the second assistant, eighteen hundred dollars; the third assistant, twelve hundred dollars; and all other assistants one thousand dollars; which salaries shall be paid out of the fees of said office paid into the treasury of the county, upon bills attested by said register and countersigned by a judge of said court.” This form of legislation has been very frequently followed in Pennsylvania since the adoption of the constitution of 1874, and is in strict compliance, not only in letter but also in spirit, with the section of the article on legislation which provides that “no law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” It will be well to give a moment’s consideration to the purpose of this provision regulating the mode of amending statutes. In a leading case upon the subject Judge Cooley says : “ The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section, which was only referred to but not published, was well calculated to mislead the careless as to its effect, was perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation: ” People v. Mahoney, 13 Mich. 497. The same eminent jurist, in his work on Constitutional Limitations, says: “ If this is a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full with such reference to the old law as will show for what the new is substituted: ” p. 151. Again he says: “ The provision is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revived or amended, and anything more than this only tends to render the statute unnecessarily cumbrous.” In amending the act under consideration the legislature exercised extreme care. The section intended to be amended is not merely designated by its number, but is fully recited. The amendatory act changes certain clauses and omits others, but iu order to make it perfectly clear how the section shall read, as amended, it is set forth at length. The legislature well understood the purpose of the constitutional provision, and manifestly intended to conform to its plain requirements. This being so, there can be no doubt of their intention to repeal all portions of the section amended, which are omitted from the amendatory act. This conclusion does not rest on our individual judgment but is declared to be the settled rule by the text writers, and is sustained without exception by the decisions of all the courts of last resort in which the question has been raised. Mr. Bishop says: “An amendment of a statute, declaring that it shall read in a particular way, repeals all provisions not retained in the altered form: ” Bish. Written Law, 152. Mr. Endlich in his valuable work recently published, says: “ It is perfectly clear, that, as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal: ” Endlich on Statutes, § 196. These propositions are fully brought out by the following cases: Blakemore v. Dolan, 50 Md. 194; People v. Young, 38 Ill. 490; Ely v. Holton, 15 N. Y. 595; Moore v. Mansert, 49 N. Y. 333; People v. Supervisors, 67 N. Y. 109 (23 Am. Rep. 94); Barret v. Woodburey, 40 Vt. 266; State v. Ingersoll, 17 Wis. 651; Goodman v. Oshkosh, 31 Wis. 127; Chapin v. Crusee, 31 Wis. 209. Cases from other states to the same effect may be found in the digests, but we have not been able to examine the reports ; therefore we do not cite them. We conclude that the provisions of the fifth section of the act of 1874, relating to the salary of the assistant clerk of the Orphans’ Court of Luzerne county, and payment of the same by the county were repealed by the act of 1887. Subsequently, on the application of the petitioner, a re-argument was ordered, after the hearing of which the court, Rice, P. J., filed a second .opinion, as follows: When this case was first argued, the constitutionality of the act of 1887, was not questioned. The only question raised was, whether it repealed the fifth section of the act of 1874, as to Luzerne county. We held that it did, and the correctness of the conclusion, as the case was presented, is conceded. It is now claimed that the act is unconstitutional for two reasons: (1) because it is special legislation; (2) because the title does not clearly express an intention to repeal the former act as to separate Orphans’ Courts in counties containing less than 150,000 inhabitants. It has been requested, and is important, that a speedy decision of these questions be given. Therefore, we shall not undertake to follow the able argument of the relator’s counsel, but briefly state our conclusions. 1. Article XII., § 1 of the constitution, provides that: “ All officers whose selection is not provided for in this constitution, shall be elected or appointed as may be directed by law.” As the constitution provides how assistant clerks of the Orphans’ Court shall be appointed, legislation upon that subject was unnecessary : Article V., § 22. As we suggested in oür former opinion, the relator’s title to the office is derived from the constitution, and is not dependent on the act of 1874, or affected by the act of 1887. 2. We do not think the act of 1887 is unconstitutional, because special or local in its operation. The legislature had power to repeal the fifth section of the act of 1874, and, having repealed it, to enact a law relating to the salaries of assistant clerks in counties containing over 150,000 inhabitants only. The enactment of such a law would be but a reasonable exercise of the legislative power, necessary to carry out the provisions of the constitution relating to the salaries of county officers, and the payment of the same and of the salaries of their clerks, out of the fees earned in such counties: Article XIV., § 5. Such a law cannot be declared special or local, simply because it reiterates the general and self-executing provision of the constitution relating to the power and mode of appointment. 3. “ No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title: ” Article III., § 1. The title of the act of 1887 reads as follows: “ An act to amend the fifth section of [an act relating to the organization and jurisdiction of the Orphans’ Court, and to establish a separate Orphans’ Court in and for counties having more than one hundred and fifty thousand inhabitants, and to provide for the selection of judges thereof], approved May 19,1874,’’etc. The part within brackets is a transcript of the title of the act of 1874, and simply incates the act to be amended, and not the subject matter of the amendment. If it had ended here, the title would certainly have not been misleading, and, perhaps, by the same literal construction adopted in State Line etc. R. Co.’s App., 77 Pa. 429, would have been sufficiently full. But it proceeds to indicate the section to be amended as follows : “ as to appointment of assistant clerks of the said court and fixing the salaries of the same.” Of what court ? Clearly of the Orphans’ Court. Whether an Orphans’ Court is a separate court of record or not, its title is the same,—“the Orphans’ Court.” Strictly, the word “separate” is not a part of the'title by which the court is designated, and in no sense can the words “ in counties having more than one hundred and fifty thousand inhabitants ” be so construed. The words, “ the said court,” are to be read as a part of the title of the officers whose appointment and salaries are to be regulated, which written out in full would be “ assistant clerks of the Orphans’ Court.” The reference back, then, is to no particular Orphans’ Court nor to the Orphans’ Court of any particular class of counties, but to Orphans’ Courts in general, and comprehends all such courts having assistant clerks. But even if the reference be restricted to the Orphans’ Courts established by the section to be amended, it is sufficiently comprehensive to include the Orphans’ Court of this county. We do not say that the title, upon a careless reading, might not be construed otherwise, but we think the interpretation rve have given the more natural one, and the constitutional provision under consideration was not intended to entirely obviate the necessity for vigilance. It was proposed in the convention of 1838, and rejected because it was feared it would render legislation too difficult and uncertain and lead to-litigation. “It will not do therefore, to impale the legislation of the state upon the sharp points of criticism, but we must give each title, as it comes before us, a reasonable interpretation, ut res magis valeat quam pereat. If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said: ’ ’ Allegheny County Home’s Case, 77 Pa. 77. Judged by this rule we think this title sufficiently full and not misleading, and finding no constitutional objection to tbe act we must sustain it. If tbe legislation works temporary inconvenience, as we think it does in tbis case, tbe power to correct it by additional pr amendatory legislation is with tbe legislature, and they will undoubtedly exercise it if appealed to and shown tbe operation of tbe present law. Tbe rule is discharged. Tbe petitioner then took tbis writ, specifying that tbe court erred: 1. In rendering judgment in favor of tbe defendant. 2. In deciding that tbe act of 1887 repealed tbe act of 1874 as to Luzerne county. 3. In holding that said act of 1887 was not obnoxious to tbe constitutional prohibition of special legislation.