Reid v. Smoulter

• Decision Date: 07 October 1889
• Docket Number: 422
• Citation: 18 A. 445,128 Pa. 324
• Parties: HENRY A. REID v. JOHN SMOULTER, JR
• Court: Pennsylvania Supreme Court

18 A. 445

128 Pa. 324

HENRY A. REID v. JOHN SMOULTER, JR

No. 422

Supreme Court of Pennsylvania

October 7, 1889

Argued April 18, 1889

ERROR TO THE COURT OF COMMON PLEAS OF 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bill, alleging that the act of April 13, 1887, P.L. 22, fixing the salaries of assistant clerks of the Orphans' Courts, repealed and supplanted the act of May 19, 1874, P.L. 206, under which the petitioner claimed payment of said bill; that at the time of the passage of said act of April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 13, 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, payable quarterly by the treasurer of said respective counties, as follows, to wit: . . . which salaries shall be paid upon bills attested by said register and countersigned 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. Glennon, 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 in 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...