Chunk v. McGee

Chief Justice Ag-new

delivered the opinion of the .court,

The court below thought that the second section of the Act of 24th of March 1869, Pamph. L. 514, was unconstitutional because too foreign to the title of the act. The title is, “An act giving the right to the town council of the borough of Mauch Chunk to build drains and sewers, and to file liens for the building’of the same.” It is settled in this state that a part of an act not within the subject stated in the title, may be declared to be unconstitutional, ieaving the portion within the title to stand: Dorsey’s Appeal, 22 P. F. Smith 192; Allegheny Home’s Appeal, 27 Id. 77 ; Smith v. McCarthy, 6 Id. 359 ; Commonwealth v. Green, 8 Id. 234; Cooley’s Constitutional Limitations 178. The first section' is conceded to be constitutional. The real question, therefore, is whether the second section is germain to the same subject. Giving to the second section the interpretation it may reasonably have, we think it falls within the general subject of the title. It is the duty of the court to reconcile the different parts of a law, if it can be reasonably done, rather than to declare any part void, and thus frustrate the legislative action. The subject of the title is the building of drains and sewers in Mauch Chunk, and securing the expense of so doing. The true purpose of the second section is to enable the borough to collect the expense of building sewers and drains, built or to be built, from those who use them. The words “ and the said charge may be discontinued when the borough is fully reimbursed for all the expenses and costs incurred in building and maintaining the said sewers, culverts and drains,” were intended to put an end to the special yearly charge per foot where the owner of a lot had paid his proportion of the expense. This must be treated as mandatory, to guard against a continuing charge for construction, beyond the time of full payment; leaving the borough under its general .powers, which are ample, to collect a reasonable and uniform charge from lot-holders for the use of the sewer, if they continued to use it. The purpose, as thus interpreted, being to enable the borough to collect the cost of construction from those who used the sewer, it is not so foreign as to be declared unconstitutional. The variations in the circumstances referred to in the second section are not an absolute departure from the subject itself. A sewer built before the passage of the act was not illegal, for the structure falls clearly within the powers conferred in the second section of the General Borough Law of 1851, 1 Br. Purd. 167. This borough being under that act, the sewer being legally built, it was substantially, though not literally, within the intent expressed in the title; that is, to authorize the borough to file liens for the building of the same, which substantially expresses the idea of securing and collecting the expense. The difference in the time of the construction of the sewer is evidently immaterial, not being absolutely repugnant to the main intent to authorize the building of sewers and collect the expense.

It is also objected that the remedy given in the second section is not by way of filing a lien, but by action of debt. This, however, is only modal. The purpose of filing a lien is to secure the expense, yet it does not expressly give any remedy for collection. But as collection is the substantial point intended, of the authority to file the lien, no one would contend that any remedy for collection given by the legislature in the body of the act would be foreign to the title. It might be debt on the lien, or scire facias, or other writ suitable to accomplish' the purpose. A judgment in debt would itself be a lien, and become efficient for collection by execution. Upon the whole section, we cannot, in view of its evident purpose, say it is not substantially germain to the subject of the title. It will not do to defeat useful and honest legislation by too rigid an adherence to the letter of the Constitution. As remarked by 0. J. Gibson, following C. J. Tiluhman, a constitution is not to be interpreted as articles of agreement at common law; and where multitudes are to be affected by the construction of an instrument, great regard should be paid to the spirit and intention; Monongahela Navigation Co. v. Coon, 6 W. & S. 114. It is a cardinal rule (said the late C. J. Thompson) that all statutes are to be so construed as to sustain rather than ignore them; to give them operation if the language will permit, instead of treating them as meaningless; and I may add, or treating them as invalid: Howard’s Appeal, 20 P. E. Smith 344. It is not the purpose or the duty of the court to catch at pretexts to avoid legislation, where it can be fairly reconciled with the Constitution. This has been the current of decision in this state in many cases : Blood v. Mercelliott, 3 P. F. Smith 391; Case of Church Street, 4 Id. 353; Commonwealth v. Green, 8 Id. 226 ; Allegheny Home’s Appeal, 27 Id. 77 ; State Line and Juniata Railroad Co.’s Appeal, Ibid. 429. In Commonwealth v. Green, Justice Sharswood remarked, that “ the intention of the constitutional amendment was to require that the real purpose of a bill should not be disguised or covered by the general words, “ and for other purposes,” which was formerly so common, but should be fairly stated; and it must be a clear case to justify a court in pronouncing an act, or any part of it, void on this ground.” So it was said in Allegheny Home’s Appeal: “If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary.” An exception to this general rule is, when the title tends to mislead, and to draw off attention from a covert purpose contained in the body of the bill. Such was the case of the Union Pass. Railway Co.’s Appeal, 29 Legal Intelligencer, 1872, p. 380. The case before us has no such feature. We think the court below erred in holding the second section of the act to be unconstitutional.'

Judgment reversed and a venire facias de novo awarded.

Case Details

Case Name: Chunk v. McGee

Court Name: Supreme Court of Pennsylvania

Date Published: May 8, 1876

Citation: 81 Pa. 433

Court Abbreviation: Pa.