Lloyd v. Smith

• Decision Date: 15 July 1896
• Docket Number: 172
• Citation: 176 Pa. 213,35 A. 199
• Parties: Joseph D. Lloyd, Controller of Luzerne County, Appellant, v. Thomas Smith, Patrick T. Norton and Thomas M. Dullard, Commissioners of said County
• Court: Pennsylvania Supreme Court

35 A. 199

176 Pa. 213

Joseph D. Lloyd, Controller of Luzerne County, Appellant, v. Thomas Smith, Patrick T. Norton and Thomas M. Dullard, Commissioners of said County

No. 172

Supreme Court of Pennsylvania

July 15, 1896

Argued February 6, 1896

Appeals, No. 172, Jan. T., 1896, by defendants, from order of C.P. Luzerne Co., Oct. T., 1895, No. 15, refusing injunction. Reversed.

Bill for injunction. Before LYNCH, J.

The bill set forth that the plaintiff is the controller of Luzerne county under act approved June 27, 1895, that the defendants are commissioners of said county, and are violating said act by drawing warrants on the county treasurer for debts not audited and approved by said controller, etc., and prayed an injunction: (a) To restrain the defendants from drawing warrants on the county treasurer for debts, etc.; (b) to compel transference to the custody of the controller of all bonds, etc.; (c) to compel defendants to supply the controller with rooms for an office; (d) to compel the defendants to meet with the controller for the purpose of fixing salaries, etc. The answer averred that the said act was unconstitutional on four grounds, viz: (1) That the act is special, applying only to two counties; (2) that the act abolishes a constitutional office, viz, auditors during term of present incumbents; (3) that the duties of auditors are transferred to controller by reference to act of 1834 without re-enactment at length; (4) that the act contains two subjects, viz, creation of controller and abolition of auditors. It appeared that the plaintiff, the controller of Luzerne county, had been appointed by the governor and subsequently elected by the people, and duly qualified as such under the act of June 27, 1895, P.L. 403 an act alleged to have been passed to meet the objections raised against the act of June 8, 1893, P.L. 393, pronounced unconstitutional in Com. v. Samuels, 163 Pa. 283.

The court below refused the injunction, holding that the 1st and 16th sections of the act of 1895 were unconstitutional.

Errors assigned were, (1) holding act of 1895, creating office of controller, to be unconstitutional; (2) in refusing injunction as prayed.

Decree reversed, with costs, and injunction directed to be awarded as prayed.

Henry A. Fuller and M. E. Olmsted, for appellant. -- The constitution plainly recognizes a subdivision of counties on the basis of population at the point of 150,000: art. V. sec. 22, orphans' court; art. XIV. sec. 5, salaries of county officers.

The constitution recognizes a class of counties: Reid v. Smoulter, 128 Pa. 337.

The objection "expressio unius, exclusio est alterius" is fully answered by Com. ex rel. v. Reeder, 171 Pa. 518.

That the power to subdivide counties exists, is clear from Bennett et al. v. Norton et al., 171 Pa. 221.

The proper test of constitutionality is not whether all are included, but whether any are excluded: L.V. Coal Company's Appeal, 164 Pa. 44.

All the decisions and the reasoning employed in them demonstrate that such subdivision will be sustained on the test above stated: Morrison v. Bachert, 112 Pa. 322; Davis v. Clark, 106 Pa. 377; Scranton v. Silkman, 113 Pa. 191; McCarthy v. Com., 110 Pa. 243, and others.

The act does not in effect abolish the constitutional office, but simply substitutes another office of co-ordinate nature, likewise constitutional.

It is very clear that an office nonconstitutional may be abolished, and the incumbent legislated out during his term: Com. v. Weir, 165 Pa. 284.

But this act need not be construed to legislate the present auditors out of office.

We may concede that they are not, and cannot be, legislated out.

Neither the title to office of the county auditors, nor that of the controller, can be determined collaterally, even at law. That can be done only in a direct proceeding, by a writ in the nature of quo warranto: Com. v. McCombs, 56 Pa. 436.

Equity has no jurisdiction with regard to the election or amotion of corporators, nor in the case of a public officer de facto of a municipal character: Hagner v. Heyberger, 7 W. & S. 104; Updegraff v. Crans, 47 Pa. 103; In re Sawyer, 124 U.S. 200-212.

The next census will probably show the five additional counties of Berks, Lackawanna, Lancaster, Montgomery and Westmoreland to be within the class provided by the act of 1895. In those counties already within the class and not previously provided with controllers, there is an immediate and urgent demand for the relief afforded by the act. Not only were controllers appointed by the governor, in pursuance of the act of 1895, but also at the general election in 1895 controllers were elected in each of the counties and duly qualified. Nobody in either county objects to the performance of their duties save only the commissioners, over whose acts the legislature has wisely set the controller as a guard.

Alexander Farnham and H. W. Palmer, with them Joseph Moore and J. O. Ulrich, for appellees. -- The act of June 27, 1895, is unconstitutional for the following reasons: 1. The act is special and local in effect because it does not apply to all counties containing a population of one hundred and fifty thousand and over. 2. Because it is inconsistent with the salary act of 1876 as amended by the act of July 2, 1895, P.L. 403. 3. Because it attempts to legislate the county auditors out of office during their term. 4. Because it attempts to abolish the office of county auditor, which is a county office under the constitution. 5. Because the constitution does not provide for the abolition of any county office nor does it permit any change in it except by amendment according to article XVIII. 6. Because the constitution does not sanction the classification of counties for the purpose of creating offices. 7. Because it offends against section 7 of article III. of the constitution. 8. Because the title does not give sufficient notice of its contents. 9. Because it violates section 6 of article III. of the constitution. 10. Because it is obnoxious to section 13 of article III. of the constitution; State v. Constantine, 42 Ohio 437; Com. v. Kilgore, 82 Pa. 396.

Both auditors and controllers cannot exist because the constitution says, "Auditors or Controllers," nor can such office as is described by this act be created in any county in this commonwealth.

The office of county auditor cannot be abolished during the continuance of the term: Taggart v. Commonwealth, 102 Pa. 354; Reid v. Smoulter, 128 Pa. 324; Commonwealth v. Gamble, 62 Pa. 343.

The constitution does not provide for the abolition of county auditors nor does it provide for the creation of controllers in certain counties, as, for example, counties containing one hundred and fifty thousand inhabitants and over: McCafferty v. Guyer, 59 Pa. 109.

It is contrary to the doctrine of classification, which is, that those counties having a small population may ultimately have one much larger: Davis v. Clark, 106 Pa. 385; York School District Appeal, 169 Pa. 70.

The object of the constitution is not to grant legislative power, but to confine and restrain. Without the constitutional limitations, the power of the legislature to make laws would be absolute: People v. Draper, 15 N.Y. 549; People v. Flagg, 46 N.Y. 401; Monongahela Nav. Co. v. Coons, 6 W. & S. 117.

The act requires duties of the county commissioners in the counties to which it applies, entirely different from those of other counties, and is therefore unconstitutional because the title does not give sufficient notice: Rogers v. Mfrs. Co., 109 Pa. 109; Phoenixville Road, 109 Pa. 44; Quinn v. Cumberland County, 162 Pa. 55; Commonwealth v. Weir, 165 Pa. 284.

This act violates section 6, article III. of the constitution: Titusville Iron Co. v. Keystone Oil Co., 122 Pa. 627.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

It was agreed by counsel that no technical objection as to the form of remedy or the right of the respondents as county commissioners to dispute the plaintiff's title to the office of controller, should be raised, and we therefore proceed to the substantial question at issue.

The constitutionality of the act of June 27, 1895, P.L. 403, is attacked upon four grounds, 1, that it contains two subjects, 2, that it is special and local legislation, 3, that it is a change of law by the transfer of the duties of the auditors to the controller by mere reference and without enumerating them or re-enacting them at length, and 4, that it abolishes the constitutional office of county auditor during the term of present incumbents. The first ground was abandoned at the argument, and the court below held the act unconstitutional on the last ground alone, without passing upon the others. But it is proper that we should notice them all, to make an end of the question.

1. The act has but one subject, the substitution in certain counties of the office of county controller for that of county auditor. This of course involves the abolition of one office and the creation of another in its place, but both are parts germane to the one purpose, which is the subject of the act.

2. Local and special legislation is not necessarily unconstitutional, though the list of prohibited subjects is long and comprehensive. But even in regard to some of the prohibited subjects, such as the affairs of counties, cities etc., it was very early found that there were such differences in situation, circumstances and requirements of the cities of the commonwealth, that classification with reference to their governmental machinery was of imperative necessity, and it was accordingly sustained, and the principle established that a law which does not exclude any one from a class, and applies to...