Smith v. McCarthy
| Decision Date | 21 November 1867 |
| Citation | 56 Pa. 359 |
| Parties | Smith <I>et al. versus</I> McCarthy <I>et al.</I> |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent
Bill in equity in the Supreme Court, Western District: No. 55, to October and November Term, by William H. Smith and others, citizens of the city of Pittsburg, the borough of Lawrenceville and of the townships of Pitt, Oakland, Collins, Liberty and Peebles, against William C. McCarthy, mayor of Pittsburg and others, election officers within the city, borough and townships above mentioned.
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J. Veech and W. H. Lowrie, for complainants.
G. Shiras, Jr., and J. F. Slagle, for defendants.
The opinion of the court was delivered, November 21st 1867, by THOMPSON, J.
We are asked to enjoin the defendants from holding an election for members of the councils, mayor and other city officers for the city of Pittsburg, on the second Tuesday of December next, which it is charged they threaten to hold under the provisions of an Act of Assembly passed the 6th day of April, A. D. 1867, entitled "A further supplement to the acts incorporating the city of Pittsburg," Pamph. L. 1867, p. 846.
The act provides for incorporating into the city of Pittsburg certain territory therein described, outside the limits of the city at the time of the passage of the act, leaving the question of consolidation to the people in the districts intended or designed to be consolidated. At the general election in October last, and pursuant to the provisions of the act, a vote by the qualified voters of the several districts was had, and the central district alone gave a majority for consolidation, the other two against it. By the 2d section of the act, only those sections which should cast a majority of votes for consolidation were to constitute the city. It is plain that as the central district alone voted for consolidation, it alone will be entitled to elect the mayor and other officers named in the act, and the other districts will have no part in the matter.
The bill filed by the complainants charges that the act in question is unconstitutional, and no election can or ought to be held under it. We are not able from anything that has been shown to say that this is so, so far at least as the provisions for consolidation are concerned. It is not unconstitutional to submit such a question to the people. We do not regard it within the principle which forbids the delegation of legislative power. That is applicable to the creation of laws, which the law-making power provided by the Constitution must not delegate. So far as questions like the present are concerned, the Constitution itself furnishes a precedent in the division of counties; so do the Acts of Assembly in regard to the division or establishment of new townships created out of old. In these cases the vote of the districts interested is taken to indicate the choice of the people on the subject. We need not discuss this, however, for it was not insisted on in the argument by the plaintiffs' counsel. It would have been in vain if it had been. Wherein, otherwise, the act is unconstitutional so far as it provides for consolidation we do not see, and have not been shown. The legislature had the undoubted power to pass an act for consolidation; it may unquestionably enlarge, divide and change the boundaries of municipal corporations, and may do this without referring the question of choice to a vote of the people. The instance of the consolidation of a number...
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