Commonwealth ex rel. v. Taylor, 159 Pa. 451

159 Pa. 451 | Pa. | 1894

Opinion by

Mr. Justice Mitchell,

We would be compelled to reverse this judgment for irregularity. It has nothing to stand on. The record shows a petition for quo warranto, and judgment of ouster, without any intervening answer, plea, demurrer or proceedings of any kind. No doubt this was an oversight resulting from the fact that the three proceedings, by contested election, by quo warranto, and by bill for injunction, all having the same object, ran along concurrently and were treated practically as one, but the error is one that leaves a patent defect of jurisdiction on the face of the record, and cannot be overlooked.

But beyond this the judgment is wrong in substance, and based on an erroneous view of the law.

The confusion in reading the statutes upon the subject of the election of school directors in the wards of boroughs, arises mainly from the fact that the 4th section of the act of May 14, 1874, is re-enacted and extended by the act of Feb. 16, 1883, without reference to its previous repeal by the act of May 10, 1878. The difficulty however is not insuperable, as the legislative intent is clear.

The act of May 14, 1874, P. L. 160, by its 4th section directed “ the election of an equal number of councilmen and school directors in each of the wards,” etc. This contemplated a separate election by each ward. Not only is that the natural meaning of the language used, but it is what is generally to be presumed, in accordance with the universal American system that the representative shall be elected by the constituency which he is to represent, and therefore if he is, under the law, to be a ward representative in the school board of the borough, he is presumably to be elected by the voters of the ward. Such moreover was the prior law uirder the general public school act of May 8, 1854, P. L. 617, which in section 2 declares that, in school districts composed of cities or boroughs divided into wards for school purposes, each ward shall elect a separate board of directors.

Whether this intent of the 4th section of the act of 1874 was inoperative by reason of the failure of that act to make any provision for constituting the wards separate election districts, as the learned judge below seems to have thought, we are not required to consider, as the necessary authority was supplied by the act of May 10, 1878, P. L. 51. This act, however, while providing for separate ward elections of councilmen and other officers, expressly excepted school directors, and required them, along with the burgess, auditors, etc., to be elected by a “ concurrent ” or joint vote. The act, though entitled a supplement to the act of 1874, contained no express repeal of any part of it, but only the general provision that so much as was inconsistent with its own provisions should be repealed — a consequence which would have followed without expression. It did repeal the 4th section of the act of 1874 by virtue of the repugnancy between the system which it prescribed, and that prescribed by the prior act. The objections to the constitutionality of the act of 1878 are well answered by the learned judge below, and we are content to rest that question on his opinion, but we do not think the result follows that this part of the act of 1878 is still the law. That depends on the effect of the subsequent legislation.

The act of February 16, 1883, P. L. 5, is a further supplement to the act of 1874. We do not find the inaccuracy in the title noted by the learned judge below to be substantial. It consists merely in the misplacing of the quotation marks, which like other parts of punctuation do not vitiate when the sense is clear. Properly punctuated the title is, “ A further supplement to the act, approved the 14th dajr of May, A. D. 1874, entitled ‘ An act to prescribe the manner in which the courts may divide boroughs into wards,’ and to provide for a ward representation upon school boards in said boroi%hs.” Thus properly read the difficulty in regard to the title disappears. The act is a supplement to the act of 1874, and is so entitled. Constitutionally therefore it may contain anything that is germane to the subject of that act: Millvale v. R. W. Co., 131 Pa. 1; Phila. v. R. W. Co., 142 Pa. 484. The further explanatory phrase, “and to provide for a ward representation,” etc., directs attention to the particular part of the subject of the former act which the supplement is intended to deal with. The act then in express words amends section 4 of the act of 1874, reciting it as originally enacted without any reference to its repeal by the act of 1878. This however does not in anywise affect the validity or the force of the new enactment. The recital of section 4 is followed by a clear re-enactment of its terms, and then, as if to avoid any possible ambiguity, it is provided that “ each ward shall elect not less than one nor more than three school directors.” The act does not contain any express repeal of prior acts, nor, as already said, any notice of the effect of the. act of 1878 upon the section which it re-enacts. But the result is the same as if it did so. It is a clear and unqualified expression of the legislative purpose to establish a system of ward representation, and necessarily supersedes all previous systems. It repeals so much of the act of 1878 as provides for the election of school directors by a joint vote in the wards, in the same way and for the same reason that the act of 1878 repealed section 4 of the act of 1874, because the two systems are irreconcilable and therefore the latest must prevail. There is no difficulty or doubt about this result, or the validity of the statute by which it is produced. The act of 1883 is the existing law on the subject, and so far as any prior acts conflict with it they, must give way.

The act of May 13, 1889, P. L. 193, is a further supplement to the act of 1874, and again quotes the 4th section of that act as originally passed, without notice either of its repeal by the act of 1878, or of its re-enactment and extension by the act of 1883. No difficulty, however, arises from this fact, as there is no repugnancy between the two acts. That of 1889 enlarges the power of the courts so that they may increase the number of councilmen and school directors after the original decree dividing the borough into wards and fixing the number of ward officials. The terms and effect of the act of 1883 are not in anywise affected by this change.

Judgment reversed.

GORMLEY ET AL. V. CAMPBELL et al., APPELLANTS.

Appeal, No. 69, Jan. T., 1894, by defendants, G. B. Campbell et al., from decree of C. B. Clearfield Co., Sept. T., 1893, No. 3, granting preliminary injunction in favor of T. G. Gormley et al., plaintiffs. Argued with preceding case.

The facts are stated above at page 452.

Opinion by

Mb.. Justice Mitchell,

January 15,1894:

As this bill was founded upon and merely ancillary to the proceedings on quo warranto in Com. ex rel. Smathers v. Taylor, opinion filed herewith, it must fall with the reversal of that judgment.

Injunction dissolved and bill dismissed with costs.