Perkins v. Philadelphia

Opinion and reasons eor decree oe July 19,1893,

by Mr. Justice Dean,

By act of 5th of August, 1870, what is known as “ The Building Commission ” of Philadelphia was created. It was authorized to erect public buildings for the use of the several courts, and other municipal purposes in the city ; to locate them either on Washington or Penn Square, as should be determined by a vote of the people at the general election in October, 1870; procure such plans adapted to either of said sites as, in thei'r judgment, might be needful; employ competent architects, assistants and other employees; fix the compensation of each person employed by them, and do all other acts necessary, in their judgment, to carry out the intent of the act in relation to said public buildings; to fill vacancies caused by death, resignation or otherwise, of any of the members of the commission ; make all needful contracts for the construction of said buildings, which contracts, when approved by a majority of the commission, should be binding upon both the city and the contractors ; make requisitions on the city councils prior to 1st day of December in each year for the money required for the purposes-of the commission the succeeding year, the amount to be expended by the commissioners being strictly limited to the sum-required to satisfy their contracts for the erection of said buildings, and for the proper and complete furnishing thereof. The-act further directed that any part of said buildings, when completed, should be occupied by such branches of the municipal government as they were intended for, and the present buildings on Independence Square, except Independence Hall, as soon-as the public buildings were entirely completed, should be removed. Further, it was made the duty of all branches of the city government to do and perform all such acts in aid of the intent and purpose of the act as the commission might, from, time to time, require.

Under this act, the commission organized, and has since been in uninterrupted existence down to 24th of May, 1893. An attempt was made in the Constitutional Convention of 1874, when the section which prohibited the legislature from creating such commissions was under discussion, to amend it by adding, “ And all such commissions now existing are hereby abolished,”' but the amendment was rejected. Then, when the act of 1885, providing for corporate government of cities of the first class, was passed, a saving clause against the repeal of special acts was inserted.

So that the existence of the commission, endowed with all the great powers we have mentioned, is not open to question. Whether it was wise to thus invest the servant with the right of the master over the master’s business and master’s purse, is not for us to inquire. Such special laws could be passed, and often were passed, before the new constitution went into effect.

The commission organized 27th August, 1870, and for twenty-three years has prosecuted the work intrusted to it, and this work is now approaching completion. Exasperating delay on the part of the commission is alleged; extravagance, mismanagement and dishonesty are more than insinuated. It is averred, it has so conducted the work as to arouse the hostility of the citjq and prompt a practically unanimous demand for the repeal of the commission, which demand was responded to by the act of 24th May, 1893, now before us. The plaintiffs aver this is unconstitutional, and must be so pronounced, and they ask that any interference by the city with the commission in charge of the work be restrained. The defendant, the city, affirms the constitutionality of the act, and, as a consequence, alleges that, from the date of its approval by the governor, the commission ceased to exist, and the city, in resuming possession of the public building, did so in accordance with law.

The first section of the act abolishing the commission is as follows:

“ An act to abolish the Commissioners of Public Buildings and to place all Public Buildings heretofore under the control of such Commissioners under the control of the Department of Public Works in cities of the first class.

“ Section 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by authority of the same; That commissioners created by any special act of assembly for the erection and construction of any public buildings, required to accommodate the courts, and for municipal purposes, in cities of the first class in this commonwealth, are hereby abolished, and the erection, completion, construction, repair, removal and protection of all public buildings heretofore under the control of such commissioners in Said cities shall be under the direction, control and administration of the department of public works.”

The constitutional power of the legislature to repeal the special act creating the “ Building Commission,” is not denied by complainants; that it should be repealed, if the city of Philadelphia so desires, cannot be denied. But the contention here is not determined by either the right to repeal or the duty to repeal. Is the act of 24th May, 1893, a lawful repeal of the special act of 5th of August, 1870, or is it itself a special act violative of the constitution ? It does not purport to be an act for the repeal of the act of 1870. It is entitled, “An act to abolish,” not the “ commission,” the warrant or authority by which they exercised power, but the “ commissioners,” those who exercised the authority, “ and to place all public buildings heretofore under the control of such commissioners, under the control of the department of public works in cities of the first class.” Its declared purpose is the removal of the commissioners and the transfer of their-authority to the department of public works. The title of an act is part of it; it limits its scope, and is properly used in interpreting its words : Pa. R. R. Co. v. Riblet, 66 Pa. 164. We therefore turn to that part of the act which follows the title.

The first section of the act, then, in pursuance of the one subject clearly expressed in its title, enacts: “ That commissioners created by any special act of assembly for the erection and construction of public buildings required to accommodate the courts and for municipal purposes in cities of the first class, are hereby abolished.” Up to this point, the commissioners are undoubtedly removed, and their offices are vacated, but the commission is still in force. The same section then goes on to say: “And the erection, completion, construction, repair, removal and protection of all public buildings heretofore under the control of such commissioners in said cities, shall be under the direction, control and administration of the department of public works.”

The first section of the bill thus follows strictly the declared purpose of the act in the title. The commissioners are removed, and all their powers and authority are conferred on the department of public works.

We now turn to the legislation for cities of the first class, to ascertain what person or persons shall perform the duties theretofore imposed upon the removed commissioners. Section 1, article 4, of the Bullitt Bill provides, that: “The department of public works shall be under the charge of one director, who shall be the head thereof.” Then article 12 of section 1 of the same bill enacts, that, among other officers: “ The mayor shall nominate, and, by and with the advice and consent of select council, appoint the director of public works.” The vacancy thus created by the removal of the commissioners, is thus filled by an officer appointed by the mayor, with the consent of select council.

Assuming, then, that the legislature did not intend to pass a bill containing more than one subject, and that clearly expressed in its title, the first section of the bill in apt words clearly accomplished its purpose; but the special act of 5th of August, 1870, still stood in full force on the statute book, with all its special and large powers relating specially to Philadelphia, to be performed, not by the old commissioners, but by the officer appointed by the mayor.

Certainly, it needs no argument to show that the special powers enumerated in the act of 5th August, 1870, when conferred on any officer, is a violation of section 20, article 3, of the constitution : “ The general assembly shall not delegate to any special commission .... any power to make, supervise or interfere with any municipal improvement, money, property or effects .... or perform any municipal function whatever.” The special commission which, by the general assembly of 1870, was delegated to certain commissioners, was, by the general assembly of 1893, simply withdrawn from them and delegated to the head of the department of public works, another commissioner. The fact is not material that the new commissioner was already by general law an officer of the city; the special and unusual power given him, to be exercised in a special manner, with reference to one particular building, constituted the special commission delegated to him. The first section, then, which fulfills the promise of the title, creates a vacancy in the office of commissioner, and fills it with the nominee of the general assembly. The authority of the general assembly of 1870, under the constitution of 1838, to delegate such power to a special commission, was clear; that of the general assembly of 1893, under the constitution of 1874, was peremptorily forbidden. This is not an act increasing the duties and enlarging the powers of the head of the department of public works in cities of the first class, but an act abolishing commissioners of public buildings, and transferring their powers to another in such cities. There is just one city of the first class, Philadelphia ; just one set of commissioners to erect public buildings for the use of the courts and municipal purposes, created by any special act of assembly; so there can be no doubt as to the specialty of the commission delegated, nor of the nature of the powers conferred.

If the powers of the commission, bjr a simple repeal of the act of 1870, had passed to the city, the department of public works, as such, would have taken nothing. If the city decided to proceed with the work of building, the direction of the actual labor would have fallen, by virtue of the subdivision of executive powers of the city, upon this department. But the act of 1893 proceeded to gather up carefully all the powers of the old commission, and deposit them, not with the city, but in the lap of the director of public works. By a repeal, the extraordinary powers of the commission would have ended with its own life; the ordinary powers would have fallen back upon the city to be exercised in the ordinary manner; the department of public works would have performed such work and onty such as councils, in the exercise of their paramount “ direction, control and administration” of municipal affairs, might have seen fit to direct. Under the Bullitt bill the department of public works can only take through the city; if the powers of the commission had passed to the city, the department, as such, would have taken nothing; the direction of the actual labor would have been with it, by virtue of being one of the nine subdivisions of the executive power of the city. But under the act of 1893 this department is named as the sole legislative donee of the powers of the commission. It takes not from or through the city, but independently of it, and directly from the commonwealth. Its title is subject to no condition or trust, but is absolute and independent; as much so as that of the old commission.

Taking the title and first section of the act together, and treating the second section as surplusage, it is legislation prohibited by section 20, article 3, and therefore cannot stand.

But does the second section, when read in connection with it, enable us to sustain the act as a whole ? This second section contains three legislative declarations: (1) Repeals the act of 5th of August, 1870. (2) Repeals the proviso to section 1, article 4, of the general act of 1st of June, 1885, saving the act of 5th August, 1870, from repeal. (3) Saves from repeal the act of 6th of March, 1867, appropriating grounds for public purposes in the city of Philadelphia. All three are subjects different from that announced in the title. The purpose of legislative action as stated in the title, is to remove commissioners of public buildings, and transfer their powers and control to another; this purpose, as we have seen, is fully carried out by the language of the first section. But then, another subject is taken up; the act creating the commission is repealed, and a proviso inserted saving from repeal the act of 26th of March, 1867, creating the Fairmount Park Commission and placing in its control the property and public buildings of the Park. Neither of these subjects is hinted at in the title, and both are distinct from the subject announced in the title, and at variance with the purpose there disclosed. The title, in substance, professes to abolish the commissioners and keep alive the commission. So far as words can do this, it is done in the first section. But then the legislative mind changes and the second section strikes down the one commission and saves another. Therefore, the bill contains more than one subject and cannot stand as a whole, because of section 3, article 3, of the constitution: “No bill shall be passed containing more than one subject, which shall be clearly expressed in the title.”

It is argued by counsel for the city that the second section of the act is supererogatory, and that all of the first section except the first sentence was needless. With all but the first sentence eliminated, the act would stand thus: “ Commissioners created by any special act of assembly for the erection and construction of public buildings required to accommodate the courts and for municipal purposes in cities of the first class in this commonwealth are hereby abolished.”

Treating this as the whole of the act and all the rest as surplusage, it is averred there is such a positive repugnance between it and the old act as necessarily works the repeal of the commission.

We have given this point most careful consideration, with a desire, if possible, to treat the act of 1893 as simply a repeal of that of 1870. But the significant language of the later act warrants no such construction; abolishing the commissioners does not touch their commission; there is only a vacancy in the office. Besides, the legislative intent is so manifest in the title and first section of the act to oust the commissioners and save the commission to the department of public works, that it would do positive violence to the obvious natural meaning of words, were we to treat the whole act as one repealing the former act. It is our desire, as well as a judicial duty, to sustain and enforce all acts of assembly which do not manifestly transgress against the constitution, but we cannot frame new bills which are constitutional, and substitute them for older ones which are not.

The plaintiffs further aver that this bill violates section 7, article 3, of the constitution : “ The general assembly shall not pass any local or special law. . . ¡ regulating the affairs of counties, cities, townships, boroughs, or school districts.”

This act purports to be a general law applicable to cities of the first class. We have held, and now adhere to it, that the legislature may lawfully classify cities for corporate purposes, and that an act to promote such purposes is not local or special, merely because, at the date of its passage, there was but one city to which it applied. But it has been decided in case after case, since the constitution of 1874 went into effect, in positive unmistakable language, that if the act was intended to apply to but one particular city, county or township, and was not intended to and could never apply to any other, it was local and therefore unconstitutional. This act is nominally general ; applies in terms to cities of the first class; abolishes commissioners of public buildings for the use of courts and municipal purposes in such cities, created by special acts of assembly, and places all buildings heretofore under their control in the control of the department of public works. At the date of its passage there was just one city, one set of commissioners, one special act of assembly, one public building, to which it could apply ; from the very nature of the case, there never could be another city in the first class to which the.act could apply, for it transfers to the department of public works buildings heretofore under the control of such commissioners ; no matter how many cities come into this class, nor how soon they reach it, this act cannot apply to them, for their affairs have not heretofore been regulated by the special provisions of airy such act as that of 1870.

In fact it is not denied that the act applies solely to Philadelphia, and to but one particular building in that city, and regulates the affairs of that city by placing in the control of the head of the department of public works a particular building heretofore under the special control of a special commisT sion with special powers. It even goes further, and in express terms imposes upon him a duty not theretofore belonging to his department. The act of 1870 directed the building commission, on the completion of the City Hall, to remove all the buildings on Independence Square except Independence Hall, and place the ground in good condition; the general act of 1885 put in charge of the director of public works in cities of the first class “ the construction, protection and repair of public buildings; ” the act of 1893 divests councils of any control over this subject as effectually as the act of 1870, by inserting the word “ removal.” as among the new duties imposed upon the director of public works. In every sense of the words of the constitution, the act is local, special, and regulates the affairs of the city to the exclusion of the municipal legislature, the city councils. True, it does this under the guise of a general law; but as is said in Scowden’s Appeal, 96 Pa. 425, City of Titusville case: “It requires but a glance at the act to see that it is an attempt to evade the constitution. It is special legislation under the guise of a general law. Of all forms of special legislation this is the most vicious. ... It is merely an attempt to legislate for certain cities of the fifth class to the exclusion of all other cities of the same class.”

It cannot be pretended that the act of 1893 can have any application to any other city than Philadelphia which may subsequently come into the first class. If a dozen cities, by reason of increase of population, had come into the class since the act of classifying cities was passed, no one of them would have been affected by the act of 1893, because, while each would, under the general act of 1885, have hada department of public works, no one of them would have had, in such department, the special powers here transferred to the department of public works in Philadelphia.

The act stands before us, as if the legislature had given it this form: “ The Commissioners of Public Buildings in the city of Philadelphia, holding office under the act of 5th of August, 1870, are hereby removed, and all their powers and duties under said act, with reference to the erection of city hall in said city of Philadelphia, together with the duty of removing buildings from Independence Square, are hereby delegated to the head of the department of public works in said city, and all acts inconsistent with this act are hereby repealed except the act of 26th of March, 1867, which places in the control of the commissioners of Fairmount Park the public buildings in said park; and it is further enacted, that this is not local and special legislation, but it is a general law for the government of cities of the first class in this commonwealth.”

This is the act of 1893 stripped of a disguise so thin that it can scarcely be called one, and brings it directly within the prohibition of section 7, article 3, of the constitution, as clearly as was decided in Seowden’s Appeal, the act of April 18,1878, regulating the affairs of the city of Titusville and Crawford count}7, came within the same prohibition. To the same effect as Scowderi’s Appeal, are Davis v. Clark, 106 Pa. 377; McCarthy v. Commonwealth, 110 Pa. 246; Scranton v. Silkman, 113 Pa. 191; Morrison v. Bachert, 112 Pa. 322; Ayar’s Appeal, 122 Pa. 266, and many others.

It may be asked, then, cannot a city or other municipality, because of the constitutional prohibition, rid itself of obnoxious local and special laws antedating the present constitution? We answer, certainly it can, if that be the real end in view, The very same article 3, section 7, which forbids local and special legislation, points the way so plainly, that, of all forms of legislation, it is subject to the least uncertainty. ' It says, after enumerating what laws shall not be passed: “ But laws repealing local or special laws may be passed.” Under this express constitutional authority, an act of a dozen lines, repealing the act of 5th of August, 1870, would have ousted the commissioners and obliterated the commission. All the rights of the city over its own property, with the control of its own purse, would at once have been resumed. Then, through councils, the direct representatives of the people, by ordinances, City Hall could have been completed, the old buildings on Independence Square removed, in a time and way and at such cost as to the city seemed proper. Why this easy path to the professedly desired end was not followed, we do not know; we do know, however, that, whether this act was designed with a view to evade the prohibitions of the fundamental law, or those having it in charge, in haste to accomplish a lawful purpose, carelessly and unlawfully framed it, the result is the same; as it and the constitution cannot stand together, the act must fall.

The argument, that every reasonable intendment should be made in favor of the constitutionality of a law enacted by a co-ordinate branch of the government, appeals to us with much force. But the matter to be determined is purely judicial; a spirit of comity can only impel us to a careful consideration of the question; it cannot determine the answer; that must be found in the language of the act, and the manifest intent of the constitution. If this act be sustained, the same sort of legislation can regulate the affairs of the most insignificant borough in the commonwealth, and we may expect a flood of the same vicious local laws which preceded the adoption of the constitution of 1874. It is certainly not forgotten, that the well-nigh unanimous demand which brought the convention of 1873 into existence, was prompted by the evils springing from local and special legislation. That convention, direct from the people, composed of the ablest and most experienced citizens of the commonwealth, framed this article 3 on legislation. Assuming, what was the settled law, that the general assembly had all legislative power not expressly withheld from it in the organic law, they set about embodying in that law prohibitions which«hould, in the future, effectually prevent the evils the people complained of. Article 3 is almost wholly prohibitory; it enjoins very few duties, but the “ thou shalt nots ” number more than sixty, among them sections 3, 7 and 20, which we here decide to be transgressed by this act. That constitution, with this article the most prominent feature of it, was adopted by an unprecedented majority on a direct vote, indicating a settled determined purpose on part of the people to hold back from the legislature the power to enact local and special laws. Every department of the government is bound by its provisions, but especially is this court, for on it is the duty of judicially determining any violation of it. The state as a whole is subject to it; the largest municipality as well as the'smallest township. Yet it is a fact that, notwithstanding the respect which, as citizens of a free commonwealth, we all have for the fundamental law, since 1874 more than three hundred bills have been passed by the legisl ature, which four governors have vetoed because they were unconstitutional; nearly one hundred of thesebecause they violated section 7, article 3, prohibiting local and special laws. In the same time, thirty-three, which received executive-approval, have been pronounced unconstitutional by this court, most of them because violative of the same section 7, article 3. When we consider that no special duty of judicial ascertainment of the constitutionality of legislation is imposed on the executive department, we must assume, these vetoed bills were so palpably unconstitutional that, under the oath taken by the head of that department, he could not conscientiously affix his signature to them ; and the correctness of that assumption is all the more probable from the fact, that more than one third of the members of the general assembly must have concurred in his objections, for, so far as we can discover, in no instance were any of them passed over his veto. During the session at which this bill was passed seventy-three were vetoed; thirty-seven or more than one half were refused signature because violative of the constitution; of these thirty-seven, twelve transgressed section 7, of article 3, against local and special legislation, and most of the others, sections 3, 18 and 20 of the same article. Why such a fact exists, of course, must be in a great degree conjectural. Mr. Buckalew, in his excellent work on the constitution of 1874, noticing that for the- legislative session of 1879, Governor Hoyt had vetoed thirteen bills because clearly violative of prohibitory clauses in article 3, suggests, as the reason, that the old habits of special legislation prior to 1874 were “ thrown off with difficulty and often with reluctance.” But this explanation does injustice to the legislative branch. . The general assembly of the commonwealth is just as devoted to the constitution as either of the other departments of the government. In no like period, since the foundation of the commonwealth, as since 1874, has the material and intellectual advancement of the whole people been stimulated and fostered by so many wise and beneficent laws. But the legislature being quickly responsive to local public sentiment, and having no duty of determining purely judicial questions, honestly attempts legislative advancement of local interests or legislative relief from local evils. Bills framed to accomplish such purposes are often met and stricken down by a constitution highly restrictive, and bristling with specific prohibitions.

This is no imputation on either the integrity or patriotism of the popular branch of the government. Under the circumstances it would be strange if the fact were otherwise.

But, being the fact, what reasonable intendment in favor of the constitutionality of an act is to be made from its passage by the general assembly ? What is the reasonable presumption of law from that fact? The law presumes all departments of the government will observe the constitution, for all are alike sworn to do so; but if an infringement of it be alleged, we can only determine that question by an impartial scrutiny of the statute, and by giving the constitution its fair, natural and obvious meaning; in so doing, caution in arriving at an opinion adverse to the statute is a duty; so is firmness in pronouncing one when formed. This is all the law enjoins.

Neither the law controlling us in the exercise of the duty, nor, since 1874, any extreme rarity of unconstitutional acts of assembly, warrants such intendment in favor of a bill as relieves us from the necessity of a judicial inquiry, which, itseems to us in this case, leads, inevitably, to a conclusion adverse to its constitutionality.

Another point made in the argument before us — that the public sentiment of Philadelphia with practical unanimity demanded tlio passage of this law, was doubtless more effectively urged before the legislature. But the question presents itself to us in a different shape; we do not believe the intelligent public sentiment of the greatest city of the commonwealth demands the accomplishment of a lawful purpose by unlawful means ; unconstitutional statutes are the very essence of lawlessness. Even if the unanimous public sentiment of the city demanded the enforcement of this act, we could not heed it. Public sentiment, properly, may move courts, in matters wholly discretionary, such as the adoption of rules to speed causes, afford quick relief to suitors, and eradicate abuses in the administration of justice; but such sentiment can have no place in the interpretation of a constitution; the public sentiment expressed in that instrument is the only sentiment of which a court can take notice; it contains the deliberate,- emphatically expressed sentiment of the whole people; they, and they alone, can change ox amend it in the way provided in it, but even they cannot trample upon it. If laws in conflict with it be passed by the legislature, be approved by the governor, and sustained by this court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner, whether the structure intended to shelter him be blown up by dynamite or the foundation be pried out, stone by stone, with a crowbar; in either case he is houseless. There can be no stability in a free government, if successful assaults in any department be made on the fundamental law; — the supreme law, deliberately established by the whole people as a rule of action in all governmental matters affecting their welfare.

As to the averment, that the act also violates section 8, article 3, because notice of the proposed legislative action was not published in Philadelphia at least thirty days before the introduction of the bill, we can only say, it is not our duty to go behind the law to inquire whether all the precedent formalities have in fact been complied with. The evidence that notice has been published is to be exhibited to the general assembly; it is not directed to be entered on the journals. The law before us is certified by both houses and approved by the governor. We must presume the requirement as to notice was complied with; to this effect are all the authorities of "numerous adjudicated cases on the same question.

Note. The court being pressed for a speedy decree in this case by^both parties, within half an hour after it was agreed upon in consultation, it was filed. There was no time then to prepare and file an opinion with the decree. Therefore, I was requested by the Chief Justice to prepare an opinion embod}1'ing the reasons of a majority of the court for granting the preliminary injunction, to be filed at October term at Pittsburgh. While I feel sure the subject could have been more ably discussed by any one of my brethren, I am, nevertheless, confident, no one of them is clearer in his conviction that the decree is right on both reason and authority.