172 Pa. 140 | Pa. | 1895
Lead Opinion
Opinion by
It was unavoidable in their earlier administration that conflict should have arisen between the legislative and judicial branches of our government. The form of government was new, and the exact limitations of duty and power were imperfectly understood. Even their co-ordination of power was doubted by some: Eakin v. Raub, 12 S. & R. 330; and the feeble resistance offered by the judiciary naturally encouraged encroachments by the legislature. The mischief which resulted
But concede the legislative power to pass expository acts ;
It was also contended that “ as the constitution prescribed no form or order into which the legislative expression was to be cast,” neither form nor order were material, and this court should therefore give effect to the “purpose ” of the act of 1867. But the “purpose” of every statute as of all other instruments must be gathered from the language used; and this act undertakes to give a new and final interpretation to the act of 1854, and direct the courts to adopt that interpretation in all cases which come before them. Obedience to this order is an abandonment of a principle which is vital to the preservation of our system of government. “ As the legislature cannot,” says Judge Cooley in Const. Lim. 114, “set aside the construction of the law already applied by the courts to actual cases, neither can it compel courts for the future to adopt a particular construction of a law which the legislature permits to remain,in force. One of the fundamental principles of all our governments is that the legislative power shall be separate from the
The practical effect of the act of 1867 in the present case would be to compel this court to “ construe ” the expression, “ the next city election,” used in the act of 1854, to mean not the “next” but the “next but one.” It was clearly beyond the legislative power to thus usurp judicial functions, or to distort language.
Judgment affirmed, and it is now ordered that a writ of peremptory mandamus be issued, as prayed for in the petition, directed to the defendant Charles F. Warwick, maj'ur of the city of Philadelphia, commanding him to administer to the relator, William J. Roney, the oath of office of receiver of taxes for the city of Philadelphia, as required by law, and to the said defendants, members of councils of the city of Philadelphia, commanding them to consider the form and sufficiency of the bond required to be entered by said relator for the city of Philadelphia, and that the costs be paid by the defendants.
Dissenting Opinion
Dissenting Opinion by
I dissent from this judgment as an unprecedented and unwarranted invasion by the judiciary of the legislative authority. Declaratory and expository acts have been in common use in Pennsylvania from colonial days. Since the adoption of the constitution of 1790 there have been scores if not hundreds of them, and if we include those in which the phrase “ shall not be construed” etc. has been used to introduce what are practically provisos in the same act, their name will be legion. Just half a century ago Justice Rogers in delivering the opinion of this court in Lambertson v. Hogan, 2 Pa. 22, said, “ ‘ it shall not be construed ’ is'now the usual formula.” It has continued as a common legislative formula from that day to this, in frequent use, well understood, and never heretofore questioned. In all the long array of statutes and decisions for a hundred years since 1790, not a single case has been found by the diligence of counsel or of court in which a declaratory act has
That the law of the land by which the constitution guarantees that the rights of the citizen shall be determined, means the law as it was at the time those rights arose and became fixed, was early decided, and that the courts are bound to so hold notwithstanding a subsequent declaratory alteration of the law, has long been settled. But it is part of the judicial history of the country that a powerful minority party maintained for a long time that the co-ordinate executive and legislative branches of the government each had an equal right with the judiciary to put its own construction on the constitution, and abide by it, notwithstanding a different construction should be given by the courts. One of the most eloquent of them, John Randolph, expressed his convictions by the sardonic allusion that after the Book of Judges, came the Book of Kings. The doctrine that the judiciary were not authorized to declare any act of the legislature unconstitutional had its advocates in our own court, and will be found argued with all his usual vigor by Gibson, J., in Eakin v. Raub, 12 S. & R. 330, 345. Whether he changed his views, or as many another judge has had to do before and since, merely acquiesced in and enforced settled adjudications in which he would not originally have concurred, I do not know, but he is now cited as the champion of the judicial prerogative. But the conflict which he referred to in describing the weakness of the judiciary, was that which I have mentioned, over the power of the courts to decide finally on all questions of constitutional rights, against the other departments of the government as well as between private citizens. It had no reference whatever to expository or declaratory acts as distinguished from any others. Here and there in our reports are some expressions especially by Justices Rogers and Lowrie adverse to giving any declaratory act a retrospective operation, and indeed hostile to all retrospective laws, though they are more than offset by the learned and broad-minded discussion of the subject by Sharswood, J., in Grim v. Weissenberg School Dist., 57 Pa. 433. But even in Norman v. Heist, 5 W. & S. 171, and Bolton v. Johns, 5 Pa. 145, which are cited as the cases in which this court was compelled to take a stand in assertion of the power which the constitution had conferred, it must not be
So in Greenough v. Greenough, 11 Pa. 489, the act of 1848 had declared that a will executed by the testator’s mark should “.be deemed and taken to be valid.” The act of 1833 had been construed differently but this court held the expository act good as to future cases, Gibson, C. J., saying, “ Conceding the right of legislative interpretation in the first instance because it has prevailed too long to be disputed, we can pronounce' the act of 1848 to be exclusively prospective without disturbing titles.”
Without entering on an elaborate review of tbe cases here, I may say that I have carefully examined every case and every citation, besides many others not brought forward by counsel or the court, and I state the result with confidence, that there is not an instance in our books where a declaratory act has been held unconstitutional as an invasion of the judicial province when applied to rights arising subsequently, but that every case and every text writer, without an exception, limits the
On the contrary such acts have been uniformly sustained as amendments or changes of the law that the legislature was competent to make, and having the authority, the form in which it should be exercised is exclusively within the legislative discretion. In the last case before this court on that subject, Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, the law was thus clearly and accurately stated by our brother Williams, “ Expository statutes, and statutes directing the courts what construction should be given to previous legislation, were not uncommon prior to 1874, and the courts while pronouncing all such legislation to be judicial in its character and void as to any retroactive' effect intended, yet sought to give effect to the legislative will, however expressed, as to futuie cases. As the constitution prescribed no form or order into which the legislative expression was to be cast, the court sought to give effect to the purpose however expressed.” That is the precise doctrine for which I contend in this case. The present constitution requires certain forms for amendatory statutes, and under them it will probably be difficult if not impossible to frame a merely declaratory act, but with that question we are not now concerned ; the act of 1867 must be judged by the constitution as it then was, and its operation in the present case is entirely prospective. By all the precedents it was applicable and valid.
A distinction is now made between expository acts, as to whether the meaning of the act expounded is “ really doubtful.” If it were material it would not be difficult to show that whether the expression “ next city election ” in the act of 1854 meant the next election of any kind or the next election at which the office in which the vacancy occurs was to be filled, was much more doubtful than the questions in many other acts that this court has sustained, as for example in Bolton v. Johns and Greenough v. Greenough, in both of which the declaratory acts required the courts to say the acts expounded meant just what this court had already said they did not mean, yet the acts were held valid exercises of the legislative power as to future cases. The act of 1867 recites “ whereas doubts have arisen ” etc. It is in the province of courts to say that such doubts were not
But the question whether an act was “really doubtful” or not is wholly immaterial in the present case. It has never heretofore been applied except in considering the retrospective operation of statutes. In Lambertson v. Hogan, 2 Pa. 22, already cited, Justice Rogers says “ Explanatory acts must be construed as operating on future cases alone, except where they are designed to explain a doubtful statute.” And in Haley v. Phila., 68 Pa. 45, which is specially relied on for this point, the language of Sharswood, J., quoted, shows that he was referring solely to retrospective construction, and this is further demonstrated by the next sentence in his opinion, “An expository act is destitute of retroactive force because it is an act of judicial power.” It plainly did not occur to him, as it had not to any of his predecessors, that a declaratory act was not valid legislation to change the law for future cases, although it was put in the form of a direction to so construe a prior statute. In the present case if the act of 1867 instead of the phrase “ the words ‘ next city election ’ shall be construed to mean ” etc. had said “ the words ‘ next city election ’ shall hereafter read ‘ next election for said office ’ ” etc. there could have been no question of its validity as an alteration of the law, and I am unable to see any difference except in the very outside shell of the bark, between the two forms. I would therefore reverse this judgment.