When this case was here before, the Commonwealth was neither a party to the record nor represented at the argument. We then held, for the reasons stated in an opinion filed December 14, 1936, that the Attorney General in appointing, under the provisions of Section 907 of the Administrative Code of April 9, 1929, Article IX, P.L. 177, 239, 71 P. S. § 297,1 John L. Pipa, Jr., Esq., appellant herein, a special attorney to investigate criminal charges against certain persons and prosecute the alleged offenders in Snyder County, had power to fix the compensation of his appointee, but was without authority in law to direct and require that any part of that compensation be paid by the County of Snyder.
On December 22, 1936, the Attorney General filed his petition for leave to intervene and for a reargument; this petition was granted and the case reargued during the Harrisburg Term.
We have not been convinced by the able argument in *Page 299 behalf of the Commonwealth that our prior disposition of this appeal was erroneous. The fundamental question with which the Commonwealth is concerned may be thus broadly stated: When the Attorney General, pursuant to the provisions of Section 907 of the Administrative Code of 1929, retains and employs a special attorney to represent the Commonwealth in criminal proceedings arising in any county, may he, without the consent of the commissioners thereof, impose upon such county liability for the payment of the compensation of his appointee?
Two main propositions were advanced at the reargument by the representatives of the Commonwealth in support of their contention that the Attorney General has that authority.
First, that Section 907 of the Code repeals by implication so much of Section 3 of the Act of May 2, 1905, P.L. 351, 71 P. S. § 819, as provides that the compensation of such an appointee shall be "paid by warrant drawn by the Auditor General upon the State Treasurer."
Their second proposition is that, as the appointment of a special attorney is not mandatory, the Attorney General may insert as a condition of the appointment a provision that the compensation of the appointee be paid by the county in which his services are to be rendered.
As applied to the case in hand, attention is directed to the fact that the commissioners of Snyder County did not protest against the payment of appellant's compensation until after his services had been rendered and it is argued that they, therefore, impliedly accepted all the conditions of the order appointing appellant.2 *Page 300
We considered the first proposition to some extent in our former opinion. Reference was there made, inter alia, to the relation between Article IX of the Administrative Code of June 7, 1923, P.L. 498, 548, superseded by the same article of the Code of 1929, supra, and the Act of 1905, supra. The Act of 1905 was the first legislation providing for the appointment by the Attorney General, upon the request of a president judge, of special attorneys to conduct criminal proceedings in a judicial district. The first and second sections of the Act of 1905 were included practically verbatim in Section 907 of each code. The provision of Section 3 of the Act of 1905 authorizing the Attorney General to fix the compensation of special attorneys retained and employed by him was also carried into Section 907 of the codes. We also set forth our reasons for concluding there was no occasion for repeating in the codes the provision of Section 3 of the Act of 1905 expressly directing that the compensation of the special attorneys, whose appointments were therein provided for, should be paid out of the State Treasury, because under the Code of 1929 these special attorneys were specifically classified with the special deputy attorneys general authorized to be appointed by the Attorney General under Section 906, and therefore entitled to receive their compensation out of the State Treasury.
We need not here repeat what was said in that opinion upon that subject, but, in view of the contention of the Commonwealth that the provision of the Act of 1905 for payment out of the State Treasury has been impliedly repealed by the Code of 1929, we may add the following observations:
Concededly, no part of the Act of 1905 has been specifically repealed by either code. "Repeal is wholly a question of legislative intent." Com. ex rel. v. Brown, *Page 301 210 Pa. 29, 36, 59 A. 479. In the present case regard must be had to the character and scope of the legislation embodied in the codes. The question of the constitutionality of the Code of 1923 was before our Supreme Court in Com. ex rel. v. Snyder, 279 Pa. 234,123 A. 792. It was there pointed out that, as stated in its title, its purpose was to provide for and reorganize "the conduct of the executive and administrative work of the Commonwealth" by the executive departments thereof, rather than to revise and codify matters of substantive law. Article XXIX of the Code of 1929, relating to its interpretation and effective date, Section 2902, reads: "Continuation of Existing Laws. The provisions of this act, so far as they are the same as those of existing laws, shall be construed as a continuation of such laws and not as new enactments."
Repeal by implication is not favored, particularly where, as here, there is no repugnancy or irreconcilable conflict between the statutory enactments under consideration: Patterson et al. v.Penna. Liquor Control Board, 125 Pa. Super. 192,189 A. 883; Carpenter v. Hutchison, 243 Pa. 260, 90 A. 154; Com. ex rel.v. DeCamp, 177 Pa. 112, 35 A. 601; Provident Life and Trust Co.v. Klemmer et al., 257 Pa. 91, 100, 101 A. 351; and Shibe's Case,117 Pa. Super. 7, 177 A. 234. Werner et al. v. King et al.,310 Pa. 120, 164 A. 918, cited to the contrary, is a case in which a former method of publishing the lists of mercantile appraisers was fully supplied by the Fiscal Code of April 9, 1929, P.L. 343, in which it was expressly provided that "all acts and parts of acts supplied by this act are hereby repealed."
The most that can be said in this case is that there is a discrepancy between the Act of 1905 and the codes, but the existence of such a discrepancy does not result in a repeal by implication: Keller et al. v. Staley et al., 78 Pa. Super. 184. We think the principles thus *Page 302 expressed in Com. v. Curry, 285 Pa. 289, 294, 132 A. 370, are applicable here: "Where there is no specific repeal of a prior act, or of any named part of it, by a subsequent statute on the same general subject, and where, as in the present instance, the latter, while omitting a definite provision of the former, yet contains nothing touching on, much less actually antagonistic to, the omitted part, the last legislation, in the absence of a demonstrated intention to deal with every aspect of the general subject in hand, does not necessarily repeal such omitted part, particularly where, as here, the later statute confines its repeal of former acts to such parts of them as are inconsistent with the provisions contained in the repealing statute. Com. v.Crowl, 245 Pa. 554, 559."
Additional support for our conclusion that the legislature intended to place the special attorneys, authorized to be appointed by Section 907, in the same class with the special deputy attorneys general provided for in Section 906 is found in the fact that in the Code of 1923 paragraph (b) of Section 906 authorized the Attorney General "from time to time to appoint and fix the compensation of special deputy attorneys general to represent the Commonwealth or any department, board or commission thereof, in special work or in particular cases," but when this paragraph was repeated in the Code of 1929 the legislature significantly included therein the "special attorneys" authorized to be appointed under Section 907. Section 906 obviously provides for the appointment of "special deputy attorneys general," as distinguished from "such deputy attorneys general as may be appointed to assist in the conduct of the regular work of the department." We think it equally clear that the legislature has definitely and expressly classified the "special attorneys" formerly appointed under the Act of 1905, in so far as the extent and source of *Page 303 payment of their compensation is concerned, with special deputy attorneys general.
Notwithstanding what was said in our former opinion with relation to the distinctions between the present case and the case of Com. ex rel. v. Irvin, 110 Pa. Super. 387,168 A. 868, the representatives of the Commonwealth attempt in their brief to support their present contention by reference to certain expressions contained in the opinion in that case. One of them (p. 394) reads: "It might be urged with considerable force that the Act of 1905 was repealed by implication." This, however, was followed by the distinct statement that we did not decide in that case "whether or not the Act of 1905 was repealed." Another expression relied upon by the Commonwealth is found at page 395 and reads: "Counties have the primary responsibility for the cost of all criminal proceedings, unless expressly relieved therefrom." The compensation here involved is not "costs" of the administration of criminal justice, as that term is used in our statutes and decisions. The rule applicable to charges of the nature here involved was thus stated in Com. v. Garramone,115 Pa. Super. 588, 176 A. 263: "As an agent or arm of the Commonwealth [a county] is liable to pay only such costs, in criminal cases, as the legislature has specifically imposed upon it, and in order to make [it] liable there must be clear statutory warrant or authority for such action, (citing cases)." See also Com. v. Henderson, 113 Pa. Super. 348, 173 A. 868.
So that there may be no further misunderstanding about the scope of our decision in the Irvin case, we now overrule the above quoted expressions and any other statements therein which may seem to be in conflict with the conclusions stated in our former opinion in the case now at bar or in this supplemental opinion.
The difficulty with the second proposition advanced *Page 304 in behalf of the Commonwealth, to the effect that the Attorney General had the right in making the appointment to impose the condition that appellant's compensation be paid by Snyder County, is that, when followed to its logical conclusion, it proves too much. It is to be noted that we are not dealing with an intervention by the Attorney General, personally or through one of his regular deputies, in the exercise of the common law powers vested in the Attorney General. These powers were fully considered by our Supreme Court in Com. ex rel. Minerd v.Margiotti and Com. ex rel. Reilly v. Margiotti, 325 Pa. 17,188 A. 524. It was there held that entirely aside from Article IX of the Administrative Code the Attorney General of Pennsylvania "is clothed with the powers and attributes which enveloped Attorneys General at common law." Prior to the Act of 1905 the only way the Attorney General could intervene was through the exercise of his common law powers. In the proceedings just cited it was held that these powers of the Attorney General were in nowise curtailed by the Act of 1905 (now Section 907 of the Administrative Code) but were somewhat enlarged thereby. The intervention with which we are here concerned was strictly under the provisions of Section 907. Such intervention does not take place by the Attorney General upon his own motion; it is statutory and the special attorney provided for may be appointed only upon the request of the president judge of the judicial district in question. If, as now contended in behalf of the Commonwealth, the Attorney General may impose as a condition of granting the request of the president judge that the compensation of the special attorney shall be paid by the county, it would logically follow that the president judge who made the request would be at liberty to accept or reject the condition, and, if he rejected, would *Page 305 be under no obligation to recognize the authority of the Attorney General's appointee.
In the case of Com. v. Ryan et al., 126 Pa. Super. 306,188 A. 764, one of the judges of Fayette County declined to recognize the authority of a special attorney appointed by the Attorney General under the provisions of Section 907 and quashed certain indictments signed by the appointee. Upon appeal to this court, the orders quashing the indictments were reversed and the indictments reinstated. Although the matter has, in our opinion, no particular bearing upon the merits of this case, it may be noted that the record shows that the appointment of appellant did not originate either with the district attorney or the president judge of Snyder County, but was pointedly suggested by the Attorney General and his fellow members of the Board of Pardons during certain proceedings before that tribunal.
Since the filing of our former opinion we have had the benefit of a declaration by our Supreme Court that a special attorney, appointed as was appellant, is not an "officer" of any kind but, practically, an employee of the Attorney General. In Com. ex rel.Minerd et al. v. Margiotti, supra, Mr. Justice SCHAFFER said (p. 31): "It is argued that the special attorney thus appointed holds an office. We think this by no means follows. He is just what the act says he is, a special attorney `retained and employed' by theAttorney General to represent the Commonwealth in the particular matter or matters just as the Attorney General may retain and employ special attorneys to represent the Commonwealth in other special situations when in his judgment it is proper to do so. The person so retained and employed is the representative of theAttorney General for the time being and in the business confidedto his care." (Italics supplied)
We think this supports our conclusion that the legislature *Page 306 intended that the Commonwealth, and not the county to which a special attorney happens to be assigned, should pay for the services of the person employed on its behalf by its chief law officer.
Upon this reconsideration of the questions involved under this appeal, we are still of the opinion that the Attorney General was without authority in law to impose upon the County of Snyder liability for the payment of appellant's compensation.
Order affirmed.
1 "Special Attorneys in Criminal Cases. — When the president judge, in the district having jurisdiction of any criminal proceedings, before any court of oyer and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which the case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned. He shall take the oath of office required by law to be taken by district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon them by law. The compensation for services rendered, and necessary expenses incurred by such attorney or attorneys, shall be fixed by the Attorney General."
2 "I hereby retain and employ as special attorney to represent the Commonwealth in the above proceedings, to investigate the charges therein and prosecute the alleged offenders, John L. Pipa, Jr., of Shamokin, Pennsylvania. Mr. Pipa will receive such compensation from the County of Snyder as shall hereafter be fixed by me and also his actual expenses incurred by him in performing his duties under this appointment."