Hollinger v. King

• Decision Date: 05 January 1925
• Docket Number: 8
• Parties: Hollinger v. King et al., Appellants
• Court: Pennsylvania Supreme Court

127 A. 462

Hollinger v. King et al., Appellants

282 Pa. 157

No. 8

Supreme Court of Pennsylvania

January 5, 1925

Argued December 2, 1924

Appeal, No. 8, May T., 1925, by defendants, from decree of C.P. Dauphin Co., No. 778, Equity Docket, No. 62 Commonwealth Docket 1924, on bill in equity, in case of Charles H. Hollinger, member of the State Employes' Retirement Association of the Commonwealth of Pennsylvania et al., v. Clyde L. King, Charles A. Snyder, Mary Vaughan Lachenmeyer, Howard W. Fry and Minnie H. Irwin, State Employes' Retirement Board Members of the Commonwealth of Pennsylvania, and Leon Henderson, State Employes' Retirement Board Secretary of the Commonwealth. Affirmed.

Bill for injunction. Before HARGEST, P.J., WICKERSHAM and FOX, JJ.

The opinion of the Supreme Court states the facts.

Decree for plaintiff in opinion by HARGEST, P.J.

Defendants appealed.

Error assigned was, inter alia, decree, quoting it.

The decree is affirmed.

Philip S. Moyer, Deputy Attorney General, with him J. H. Fertig, and George W. Woodruff, Attorney General, for appellants. -- The Act of June 6, 1923, P.L. 494, sufficiently specifies, by reference to the Constitution itself, the purpose for which the money is to be used: Kugler's App., 55 Pa. 123; Smith v. Browne, 206 Pa. 543.

The amendment to article IX, section 4, of the Constitution adopted by the electors of the State, November 6, 1923, is a valid part of the Constitution: Com. v. King, 278 Pa. 280; Armstrong v. King, 281 Pa. 207.

Geo. Ross Hull, of Snyder, Miller & Hull, for appellees. -- The act must specify the purpose of the loan: Collins v. Kephart, 271 Pa. 428.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Plaintiff filed a bill in equity to enjoin the State Employes' Retirement Association from purchasing part of a $15,000,000 bond issue, which the governor proposed to sell under the provisions of the Act of June 6, 1923, P.L. 494, and to have the act declared invalid as a violation of article IX, section 5, of the Constitution of Pennsylvania, which provides: "All laws, authorizing the borrowing of money by and on behalf of the State, shall specify the purpose for which the money is to be used, and the money so borrowed shall be used for the purpose specified and no other"; also to have the amendment to article IX, section 4, of the Constitution, under the provisions of which the issue was proposed to be made, declared illegal and void. Defendants demurred. The court below dismissed the demurrer, sustained the bill, and enjoined the issue of bonds, because no act of assembly had been passed authorizing the borrowing of money and specifying the purpose for which the money was to be used, as required by the above-quoted constitutional provision. At the same time, the court below found the amendment of article IX, section 4, to be an unimpeachable part of the Constitution. Defendants have appealed from the decree dismissing the demurrer and granting the injunction.

Plaintiff contends that the securities here in controversy would be invalid when issued because the amendment to article IX, section 4, of the Constitution (see P.L. 1921, p. 1238), which authorizes the State to increase its bonded indebtedness, was submitted to and approved by the electors in a year, 1923, when such actions were forbidden by the organic law, and that, inasmuch as no bonds have as yet been issued under the amendment, its invalidity is still open to question.

In Armstrong v. King, 281 Pa. 207, 214, 217, 218, we considered the validity of a joint resolution, proposing to submit an amendment to the people at the general election in 1924, and held the resolution unconstitutional, saying, in the course of our opinion, that the submissions of amendments in 1911, 1913, 1918 and 1923 were "untimely," but adding, in our subsequent discussion of relevant cases from other jurisdictions, that, after the adoption of an amendment by the people, where bonds had been issued "in accordance with it," or where "public or private rights would be disturbed," no judicial attack could be made on the validity of the amendment or the securities issued thereunder.

Plaintiff, relying on the above fragments from our former opinion, contends that the submission of a constitutional amendment in 1923 being "untimely," the one now before us is open to attack, notwithstanding its approval by the people, because no rights have accrued and vested under it through the actual sale of bonds. Plaintiff's contentions were rightly overruled, the court below saying, "We are of opinion that the effective thing is the approval of the electors and that the opinion in Armstrong v. King, supra, so decides." Our deliberate thoughts on the point at issue are so fully developed in Armstrong v. King, supra, that it would serve no useful purpose to restate them at this time; it is enough to say that the views there expressed are here applied, and the ruling of the court below, that the amendment adopted November 6, 1923, is an unimpeachable part of the Constitution, is sustained. As we said at pages 222-3 of our opinion in the case here referred to, "The approval of the people gives unattackable validity to . . . amendments submitted to them."

We shall consider next the constitutionality of the act before us under the above-quoted section 5 of article IX, of our organic law. In passing on this phase of the case, the court below said: "It is contended that this act of assembly is unconstitutional because it does not specify a purpose for the issuing of the bonds but is a general act authorizing the issue and sale of bonds for 'any lawful purpose.' The title to the act is: 'An act authorizing the issue and sale of bonds by the Commonwealth of Pennsylvania for any lawful purpose; defining the powers and duties of the governor, the auditor general, and the state treasurer in relation thereto; making an appropriation of the proceeds of such bonds for the purposes intended; providing for the payment of interest on, and the redemption of, such bonds by the Sinking Fund Commission; and fixing the compensation of the loan and transfer agent of the Commonwealth in connection therewith.' Section 1 provides that 'The governor . . . is hereby authorized to borrow, from time to time, on the credit of the Commonwealth of Pennsylvania, such sum or sums of money and for such purposes as the Constitution authorizes the State to issue bonds.' Section 4 provides: 'The proceeds...