Quinn v. Cumberland County

• Decision Date: 23 May 1894
• Docket Number: 66
• Parties: Quinn v. Cumberland County, Appellant
• Court: Pennsylvania Supreme Court

29 A. 289

162 Pa. 55

Quinn v. Cumberland County, Appellant

No. 66

Supreme Court of Pennsylvania

May 23, 1894

Argued April 23, 1894

Appeal, No. 66, Jan T., 1894, by defendant, from judgment of C.P. Cumberland Co., Sept. T., 1893, No. 302, on case stated in favor of plaintiff, James Quinn. Reversed.

Case stated. Before SADLER, P.J.

The material portions of the case stated, after reciting the act of Jan. 28, 1873, authorizing the establishment of a board of health in the borough of Carlisle, are as follows:

"At a meeting of the said board of health held on April 7, 1893 the plaintiff, James Quinn, was regularly appointed messenger to the said board, and his salary fixed at $100 per year. The services which the plaintiff performs are necessary to enable the board of health to carry into effect the provisions of the aforesaid act, and $100 per year is a just and reasonable compensation for the services performed.

"On August 17, 1893, the plaintiff presented his bill to the amount of $8.33 for services rendered as messenger to said board of health during the month of July, 1893, which bill was audited, adjusted and approved by the said board, and a requisition made upon the county commissioners for the amount of said bill. The county commissioners refused, and still refuse, to draw or grant an order for the payment of the aforesaid requisition, although said requisition is regularly drawn in conformity to the provisions of the 3d section of the aforesaid act.

"The plaintiff's salary for the month of July, 1893, is still due and owing.

"Prior to the time when the commissioners refused to pay the plaintiff's claim, they paid all the debts contracted by the said board of health, when properly audited and adjusted. Said claims or debts have been paid out of the general funds of the county. No special tax has ever been assessed to pay the expenses incurred by the said board of health. The commissioners have appropriated on an average three hundred dollars per annum to pay the expenses of said board of health.

"The reasons assigned by the county commissioners for their refusal to pay the plaintiff's claim, are:

"1st. That the act of the 28th of January, 1873, entitled 'An act authorizing the town council of the borough of Carlisle to establish a board of health," is in violation of the 7th section of article 11, of the constitution of Pennsylvania of 1790, as amended in 1838, with the subsequent amendments adopted in 1850, 1857 and 1864, and therefore unconstitutional.

"2d. That the provisions of the local act of the 28th of January, 1873, being inconsistent and contrary to the provisions of a general act passed on the 11th day of May, 1893, entitled 'An act to enable borough councils to establish boards of health,' the 8th section of which provides that 'all acts or parts of acts inconsistent with or contrary to the provisions of this act are hereby repealed,' the general act repeals the local act of January 28, 1873.

"If the court be of the opinion that the act of the 28th of January, 1873, entitled 'An act authorizing the town council of the borough of Carlisle to establish a board of health,' is constitutional, and is not repealed by the act of 11th of May, 1893, entitled 'An act to enable borough councils to establish boards of health,' then judgment to be entered for the plaintiff for the amount of $8.33, but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon."

The court, in an opinion by SADLER, P.J., entered judgment for plaintiff on the case stated. Defendant appealed.

Error assigned was entry of judgment as above.

Judgment reversed and judgment is now entered for the defendant on the case stated with costs of suit.

R. W. Woods, Theodore Cornman with him, for appellant. -- The special act of Jan. 28, 1873, P.L. 100, is unconstitutional: Wilkes-Barre City Hospital v. County of Luzerne, 84 Pa. 55; Northern Home, 2 W.N. 349; Sedgwick on Statutes and Constitutional Law, 253; Const. of 1790, with amendments of 1838, 1850, 1857, 1860, art. 11, § 7.

The act of May 11, 1893, repeals the act of 1873: Best v. Baumgardner, Eberman & Co., 122 Pa. 17; Newbold v. Pennock, 154 Pa. 591; Com. ex rel. v. Macferron, 152 Pa. 244.

The following cases have no application: Northumberland County v. Zimmerman, 75 Pa. 26; Harrisburg v. Sheck, 104 Pa. 53; Brown v. County Commissioners, 21 Pa. 37; Malloy v. Reinhard, 115 Pa. 25; McKenna v. Edmundstone, 91 N.Y. 231.

Conrad Hambleton and M. C. Herman, for appellee. -- The act of 1873 is constitutional: Craig v. First Presbyterian Church, 88 Pa. 46; Com. v. Butler, 99 Pa. 535; Sharpless v. Mayor of Phila., 21 Pa. 147; Wheeler v. Phila., 77 Pa. 338; Wilkes-Barre City Hospital v. County of Luzerne, 84 Pa. 55; Speer v. School Directors, 50 Pa. 150; Weister v. Hade, 52 Pa. 474; Hilbish v. Catherman, 64 Pa. 154; Northumberland County v. Zimmerman, 75 Pa. 26; Kirby v. Shaw, 19 Pa. 258.

The local act was not repealed by the act of May 11, 1893: Brown v. County Commissioners, 21 Pa. 43; Bounty Accounts, 70 Pa. 92; Seifried v. Com., 101 Pa. 200; Rounds v. Waymart Borough, 81 Pa. 395; Morrison v. Fayette County, 127 Pa. 110; Bell v. Allegheny County, 149 Pa. 381; Safe Deposit & Trust Co., Admr., v. Fricke, 152 Pa. 231; State v. Township Committee, 3 Cent. Rep. 361; Home for Inebriates v. Reis, 95 Cal. 142; Act of April 8, 1873, P.L. 64; Com. ex rel. v. Macferron, 152 Pa. 244; Act of May 23, 1874, P.L. 230; Malloy v. Reinhard, 115 Pa. 31; Evans v. Phillipi, 117 Pa. 226; Pa. R.R. v. Riblet, 66 Pa. 164; People v. Westchester, 40 Hun (N.Y.) 353.

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

OPINION

MR. JUSTICE GREEN:

The title of the act of Jan. 28, 1873, P.L. 100, is as follows "An act authorizing the town council of the borough of Carlisle to establish a board of health." The first section of the act directs that the town council of the borough of Carlisle shall appoint a board of health to consist of five persons to serve for one year, and also directs the manner of organizing the said board and their meetings. The second section prescribes the powers and duties of the board; the third section directs the publication of the regulations and orders of the board, and the employment of all such persons as shall be necessary to enable the board to carry into effect the provisions of the act, and the regulations and orders which may be adopted, and fix the compensation of the persons employed by them. This section also directed that the expenses incurred by the board should be chargeable to the county of Cumberland, and that the commissioners of the county should make provision for the payment of the expenses when audited and adopted by the board of health and presented to the commissioners.

The fourth section provided penalties for the violation of, or neglect to obey, any order or regulation of the board. The fifth and last section provided that the board of health then acting should continue in existence until a new board should be appointed.

It will be observed that although the board of health thus provided for, was to be appointed by the town council of the borough of Carlisle, all the expenses incurred under its authority were directed to be paid by the county of Cumberland. The commissioners of the county are not entitled to any participation in the adjustment and determination of any of the expenses incurred by the board of health, nor have they any power of correction of bills which might be subject to criticism, or which might be regarded as excessive or unreasonable. Their duty is simply ministerial and mandatory. They are absolutely required to pay the expenses, when audited and adjusted by the board of health and presented to the commissioners. They have no control over the board of health, nor any right to have a hearing in the courts as to any bills which they might deem objectionable.

Now, while it is probably competent for the legislature to enact such laws, it is their duty, and their constitutional obligation, to give notice in the title of such enactments, of their intention to impose such liability upon the municipal organization which is to be affected, and if this duty is neglected, such legislation is contrary to the requirements of the constitution and therefore void.

Thus in the case of Road in Phoenixville, 109 Pa. 44, we considered an act, the title of which was, "An act relating to boroughs in the county of Chester." It was passed March 18, 1868, P.L. 352, and was subject, as is the act of 1873 in this case, to the constitution of 1838, which contained in article XI, sec. 8, the same provision that is contained in the constitution of 1874, article III, sec. 3, with a slight transposition of a few words in the latter. The provision in the constitution of 1838 was, "No bill shall be passed by the legislature containing more than one...