Commonwealth ex rel. Elkin v. Moir

• Decision Date: 27 May 1901
• Docket Number: 124
• Citation: 199 Pa. 534,49 A. 351
• Parties: Commonwealth, Appellant, v. Moir
• Court: Pennsylvania Supreme Court

49 A. 351

199 Pa. 534

Commonwealth, Appellant, v. Moir

No. 124

Supreme Court of Pennsylvania

May 27, 1901

Argued April 23, 1901

Appeal, No. 124, Jan. T., 1901, by plaintiffs, from judgment of C.P. Lackawanna Co., March T., 1901, No. 710, for respondent on quo warranto, in case of Commonwealth ex rel John P. Elkin, Attorney General, v. James Moir, Recorder of the city of Scranton. Affirmed.

Quo warranto to determine the right of respondent to the office of recorder of the city of Scranton. Before ARCHBALD, P.J.

The respondent filed an answer, and the commonwealth demurred to it. The court entered judgment on the demurrer in favor of the respondent.

Error assigned was in entering judgment for respondent.

Judgment affirmed.

I. H Burns, with him Joseph O'Brien, M. J. Martin and Frederic W. Fleitz, for appellants. -- The act in question is local, (a) because it only applies to three cities of the state; (b) because the principal matters legislated on are not proper subjects of classified legislation: Ayars's App., 122 Pa. 266; Kilgore v. Magee, 85 Pa. 401; Com. v. Patton, 88 Pa. 258; Scowden's Appeal, 96 Pa. 422; Wheeler v. Phila., 77 Pa. 338; McCarthy v. Com., 110 Pa. 246; Morrison v. Bachert, 112 Pa. 322.

Because it operates differently on different incumbents of the same office.

The act is void because it contains more than one subject not clearly expressed in the title: Com. v. Mercer, 9 Pa. C.C. Rep. 461; Ruth's App., 10 W.N.C. 498; Perkins v. Phila., 156 Pa. 554; Ridge Ave. Pass. Ry. Co. v. Phila., 124 Pa. 219; In re Road in Phoenixville Boro., 109 Pa. 44.

The act is void because it does not apply equally to all the cities of the second class.

No judgment can be entered for the respondent, for the reason that when he was appointed Scranton was not a city of the second class and the office of recorder did not exist: Com. v. McGroarty, 148 Pa. 606.

This act is against public policy, is unrepublican in form and substance, and is in violation of article 4, section 4, of the United States constitution, which guarantees to every state a republican form of government.

John G. Johnson, with him Knox & Reed, Clarence Burleigh, Lyon & McKee, Lewis McMullin, George M. Hosack, of Murphy & Hosack, and William W. Smith, intervening on behalf of William J. Diehl, mayor of Allegheny City. -- The act is impossible of execution and therefore is void, inasmuch as no ordinances can be enacted, and no powers of the cities can be validly exercised thereunder.

The act is unconstitutional because it attempts a classification in the method of filling municipal offices and of exercising municipal powers, resting upon no proper discrimination or foundation: Com. v. Oellers, 140 Pa. 457; Allegheny City v. Millville, etc., St. Railway Co., 159 Pa. 411; Shaub v. Lancaster City, 156 Pa. 365; Kepner v. Com., 40 Pa. 129.

The act is unconstitutional because it is a local act, changing the charters of cities, creating offices and prescribing the powers and duties of officers in cities: Perkins v. Philadelphia, 156 Pa. 554.

The act is unconstitutional because it vests in the governor the discretion of determining when it shall become operative: In re Census Supt., 15 R. I. 614; People v. Allen, 6 Wendell, 486; People v. Wheeler, 18 Hun (N.Y.), 540; People v. Board of Police, 46 Hun, 296.

The act is unconstitutional because it removes from their respective offices, during the terms for which they were elected, the mayors of the cities of the second class, and puts other persons therein: Respublica v. M'Clean, 4 Yeates, 399; Com. v. Gamble, 62 Pa. 343; Com. v. McCombs, 56 Pa. 436; Com. v. Weir, 165 Pa. 284; Com. v. Schneipp, 166 Pa. 401; People v. Albertson, 55 N.Y. 50; Hoke v. Henderson, 15 N.C. 1; Abbott v. Beddingfield, 125 N.C. 256; McCall v. Webb, 125 N.C. 243; White v. Hill, 125 N.C. 194; Dalby v. Hancock, 125 N.C. 325; Gattis v. Griffin, 125 N.C. 332; Wood v. Bellamy, 120 N.C. 212; Wilson v. Jordan, 124 N.C. 683; Silvey v. Boyle, 20 Utah 205; Womsley v. Mayor, etc., of Jersey City, 61 N.J. 499; Houseman v. Com., 100 Pa. 231; State v. Wiltz, 11 La. Ann. 439; Com. v. Waller, 145 Pa. 235; Brower v. Kantner, 190 Pa. 182; Lloyd v. Smith, 176 Pa. 213.

The act is unconstitutional because of the lack of power in the legislature to do what is therein attempted, viz: in the same act to make the office of mayor both elective and appointive: Com. v. Callen, 101 Pa. 375.

The act is unconstitutional because, after making the office of recorder an elective one, it provides for a continuance in the office by appointment by the governor for such length of term as dispenses with an election at the time fixed by the constitution, viz: the next municipal election in February: In re Election of District Judges, 11 Colo. 373; Com. v. McCarthy, 3 W.N.C. 477; Brooke v. Com., 5 W.N.C. 416.

The act is unconstitutional because it gives to the governor a power to remove an elected officer without cause.

The act is unconstitutional because it violates those provisions of the new constitution which preserve to the people local self government, and especially the right to choose their own local officers for the administration of local affairs: Page v. Allen, 58 Pa. 338; Com. v. Zephon, 8 W. & S. 386; Sharpless v. Mayor of Phila., 21 Pa. 147; Law Assn. v. Topeka, 20 Wall. 655; Rathbone v. Wirth, 150 N.Y. 459; Attorney General v. Trombly, 89 Mich. 50; People v. Albertson, 55 N.Y. 50; State v. Mayor, etc., of Des Moines, 103 Iowa 76; State ex rel. Holt v. Denny, 118 Ind. 449; State ex rel. Jameson v. Denny, 118 Ind. 382; City of Evansville v. State, 118 Ind. 426; State v. Moores, 55 Neb. 480; People v. Hurlbut, 24 Mich. 44; O'Connor v. City of Fond du Lac, 85 N.W. 327; People v. Lynch, 51 Cal. 15; State v. Hyde, 121 Ind. 20; Hanson v. Vernon, 27 Iowa 28; Atty. Genl. v. Board of Councilmen of the City of Detroit, 58 Mich. 213; Maynard v. Board of Canvassers, 84 Mich. 228; Prouty v. Stover, 11 Kansas, 235; In re Assessments of Lands in the Town of Flatbush, 60 N.Y. 398.

The act is unconstitutional because it attempts to create an additional justice of peace; permits the election of such justice of peace at an improper time; and permits the appointment of such justice by the governor, although the constitution requires the office to be filled by election.

The recorder has not been legally appointed, even though the act be constitutional, because of the failure to obtain the consent of the senate.

Richard C. Dale and James H. Torrey, with them A. A. Vosburg and H. A. Knapp, for appellee. -- The whole lawmaking power is committed to the legislature and its command must prevail unless clearly transgressing the constitutional prohibition. He who declares an act unconstitutional takes upon himself the burden of proving beyond all doubt that it is so. In determining the question we have nothing to do with the policy or principle of the statute, but merely is there or is there not a direct collision between its provisions and those of the federal or state constitutions: Lloyd v. Smith, 176 Pa. 213; Sugar Notch Borough, 192 Pa. 355; Powell v. Com., 114 Pa. 293; Com. ex rel. Wolfe v. Butler, 99 Pa. 540: Penna. R.R. Co. v. Riblet, 66 Pa. 164; Philadelphia v. Field, 58 Pa. 320; Erie, etc., R.R. Co. v. Casey, 26 Pa. 300; Butler's App., 73 Pa. 451.

A court cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the constitution: Cooley's Constitutional Limitations (5th ed.), p. 197; Sharpless v. Mayor of Phila., 21 Pa. 147; Com. v. M'Williams, 11 Pa. 61; Com. v. Reeder, 171 Pa. 505.

A municipal corporation is a creature of the state; it derives its powers from the state; the power that makes can unmake, change or modify. Nor does any municipal officer have any property right in his office, but the office may be abolished or changed by the legislature or new offices may be created: U.S. v. B. & O.R.R. Co., 17 Wall. 322; Burns v. Clarion County, 62 Pa. 425; Donohugh v. Roberts, 11 W.N.C. 186; Gas & Water Co. v. Downingtown Boro., 175 Pa. 341; Butler v. Penna., 10 How. 416; Crenshaw v. U.S., 134 U.S. 99; Thompson v. Com., 81 Pa. 314; Conner v. City of New York, 1 Selden, 285; Com. v. Plaisted, 148 Mass. 375; Meriwether v. Garrett, 102 U.S. 472; Baird v. Rice, 63 Pa. 489; Perkins v. Slack, 86 Pa. 283; Philadelphia v. Field, 58 Pa. 320.

There is no provision in the constitution securing to cities the right to elect their own chief executive, however he may be styled.

Even supposing that our constitution, by implication, secures to cities the right to select their own chief executive, yet the legislature in passing the act in question here has not infringed such principle.

Whether or not the legislature could permanently deprive a city of its supposed right to elect its chief executive officer as an incident of its right to confer and recall corporate power, the legislature may certainly make provisional or initiatory appointments to effect the change and put a new system of local government into operation: People v. Hurlbut, 24 Mich. 44.

It is not unconstitutional for the legislature to authorize the appointment of the chief executive officer of a city beyond a general or special election: Com. v. Clark, 7 W. & S. 127; Mayor, etc., of Baltimore v. State, 15 Md. 377; People v. Morgan, 90 Ill. 558.

So far from being exceptional it is the rule in putting in operation new systems of municipal government to legislate out of office a greater or less number of the old officers: Act of June 1, 1885, P.L. 37, art. 15, See....