York Gazette Co. v. York County

• Decision Date: 28 July 1904
• Docket Number: 7-1904
• Parties: York Gazette Company, Limited, Appellant, v. York County
• Court: Pennsylvania Superior Court

25 Pa.Super. 517

York Gazette Company, Limited, Appellant, v. York County

No. 7-1904

Superior Court of Pennsylvania

July 28, 1904

Argued March 15, 1904

Appeal by plaintiff, from judgment of C.P. York Co.-1903, No. 17, on case stated in suit of York Gazette Company, Limited, v. York County.

Case stated to determine the liability of a county for publication of a general election.

The facts appear by the opinion of the Superior Court.

The court below in an opinion by Bittenger, P. J., entered judgment for defendant on the case stated.

Error assigned was the judgment of the court.

Affirmed.

E. W Spangler and M. H. Wanner, for appellant. -- When a section in an existing law is amended, it ceases to exist, and is effectually repealed and obliterated from the statute, and the section as amended supersedes such original section, and becomes incorporated in, and constitutes a part of, the original act: Blakemore v. Dolan, 50 Ind. 194; Manlove v. White, 8 Cal. 376; Holbrook v Nichol, 36 Ill. 161.

An act and its supplement are to be construed as one law: Van Riper v. Essex Public Road Board, 38 N.J.L. 23.

Even if the amended act of 1895 was not a part of the act of 1893, the former being manifestly inconsistent and repugnant in its operation with the act of 1885, the latter is repealed by it, by necessary implication: Com. v. Summerville, 204 Pa. 300.

Where the legislative intent is that a later act is intended as a substitute for a former act, and although the later act contains no express words to that effect, it must on principle, as in reason and common sense, operate to repeal the former: Johnston's Est., 33 Pa. 511.

If two acts are inconsistent, the latest must prevail: Com. v. Cross Cut R. R. Co., 53 Pa. 62.

The reported cases show that the discretion of the sheriff is well established in many particulars, e. g., he need not advertise for, or accept the lowest bids for publishing election proclamations: Hirsh v. Schuylkill Co., 9 Pa. Dist. 297; Bartholomew v. Lehigh Co., 148 Pa. 82.

J. S. Black, with him E. D. Ziegler, county solicitor, and Charles A. Hawkins, for appellee. -- Where a late statute is absolutely repugnant to a former one only in part, it repeals the former one only so far as the repugnancy extends, and leaves all the remainder in force. In re Contested Election of Barber, 86 Pa. 392-400; Brown v. County Commissioners, 21 Pa. 37.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

ORLADY, J.

This action is brought to recover $ 374.10, from the county of York, for the publication in the plaintiff's newspaper on October 24, 1902, of the sheriff's election proclamation for the general election on November 4, 1902.

It appears by the case stated that the sheriff caused the same proclamation to be published in ten other newspapers in York county. The space occupied in each issue amounted to 3,741 lines, and the rate charged therefor was ten cents a line, which is the regular and usual rate in said county for like publications. That bills for the publication of said proclamation, of like amounts respectively for each of the eleven newspapers, were presented to the sheriff for approval, and after which approval they were presented to the commissioners of York county. Warrants for the payment of the respective bills were refused by the county commissioners for the reason that the sheriff had " abused his discretion and exceeded his authority under the law, in authorizing and causing the publication in eleven newspapers, and that the county of York was not liable to pay for the publication of the proclamation in more than three newspapers published in the county of York." It appears that in 1890, when York county had a population of 116,413, there were six daily and thirteen weekly newspapers published in the county.

The Act of June 23, 1885, P. L. 144, entitled " An act for the regulation and advertisement of general elections," provides that " it shall be the duty of the sheriff of every county in this commonwealth to give notice of the general election, by publication of the same once a week, in not more than four weekly or daily newspapers published in the county."

The 10th section of the Act of June 10, 1893, P. L. 419, provides that " it shall be the duty of the sheriff of every county . . . . to give notice of any general election to be held therein by proclamation by advertisement in at least two newspapers," This entire 10th section was amended by an act approved June 26, 1895, P. L. 392, by which amendment it is made the duty of the sheriff to give notice of any general election by advertisement in at least three newspapers. The act of 1885 is a single paragraph (with a repealing clause) and refers only to the advertisement of a general election, and did not affect other provisions of the election laws in force at that time.

The act of 1893 entitled an act to regulate the nomination and election of public officers, and requiring certain expenses incident thereto to be paid by the several counties, and punishing certain offenses in regard to such elections, is a comprehensive system embracing the manner of nomination, selection of candidates, the settlement of contests, the printing of ballots, conduct of election officers and county commissioners, the holding of the election proper, and preserving the ballots and records, and it also provides for the punishment of all persons who violate its provisions. There are thirty-six clauses, embracing seventeen pages of our pamphlet laws, and it provides that all laws and parts of laws, inconsistent therewith shall be, and the same are hereby, repealed. The amendment of the tenth section of the act of 1895, served only to substitute the section then enacted for the 10th section of the act of 1893. In other respects the act of 1893 is unchanged, and there was no necessity for the repealing clause in the act of 1895, for the reason that the whole enactment is an amendment only of the named section in the act of 1893.

The principal question in this case is are the words " in not more than four weekly or daily newspapers" of the act of 1885, repealed...