Commonwealth ex rel. v. Warren
217 Pa. 163
Pa.
1907
Check Treatment

Opinion op

Mr. Justice Brown,

This is an original proceeding before us to test the constitu*171tionality of tlie office of respondent as dairy and food commissioner of the state. The issuance of the writ of quo warranto was requested by the attorney general because he felt that the questions raised in the complaint required determination here in the first instance, but he properly, as the law officer of the state, associated himself with counsel for respondent in support of the constitutionality of the act under which the governor made the appointment.

By the Act of March 13, 1895, P. L. 17, the department of agriculture was established. It is administered by an officer known as the secretary of agriculture, appointed by the governor. This act is neither supplementary to nor amendatory of any other act, but is a piece of independent legislation, creating a new department of state government and providing for its proper administration. By the Act of May 26, 1893, P. L. 152, the powers of the state board of agriculture were enlarged, and for the purpose of securing the enforcement of the provisions of laws concerning dairy products, the president of that board ivas authorized to appoint as his agent a dairy and food commissioner, but the appointment to that office, which is now held by the respondent, is made without regard to the act of 1893. Its provisions are not involved in this proceeding except as a reference is'made in the act of 1895 to the duties imposed by it upon respondent. After providing for the establishment of a department of agriculture, to be organized and administered by an officer to be known as the secretary of agriculture, the second and third sections of the act of 1895 define in detail the duties of that officer. He is charged with the administration of all laws designed to prevent fraud or adulteration in the preparation, manufacture or sale of articles of food. By the fourth section the governor is authorized to appoint a deputy secretary and four other officers of the department, one being the dairy and food commissioner.

The act of 1895, creating the department of agriculture, contravenes no constitutional provision. It is a piece of legislation passed in the interest of the public health and the general welfare, and neither the head of the department nor any one of the four subordinate officers fills an office, the creation of which is forbidden by the constitution. Nothing is said in the *172act as to the powers of the dairy and food commissioner, and it cannot, therefore, be said that the respondent ought to be ousted because he is exercising powers which the legislature, in the act authorizing his appointment, attempted to confer upon him in violation of the constitution. He is simply directed to perform, under the supervision of the head of the department, the duties which had been imposed upon the dairy and food commissioner when that officer was appointed by the president of the state board of agriculture, under the act of 1893, and that act is to be read in connection with the act of 1895, simply for the ascertainment of what duties had been imposed by it upon the dairy and food commissioner, anti which the act of 1895 requires him to perform. Turning to the act of 1893, we find the duty imposed upon the agent of the state board of agriculture, now the dairy and food commissioner appointed under the act of 1895, to be the execution and enforcement of all laws then in force, or thereafter to be enacted, in relation to the adulteration or imitation of dairy products. By the act of 1893, the state board of agriculture was charged with the enforcement of the provisions of the Act of May 21, 1885, P. L. 22, and, for the purpose of securing the enforcement of the provisions of that act or any other act concerning dairy products, it was authorized to appoint an agent, to be known as dairy and food commissioner, charged under its direction with the execution and enforcement of said laws. The act of 1885, which was the act intended to be enforced, is a constitutional piece of legislation: Powell v. Commonwealth, 114 Pa. 265; 127 U. S. 6 78. The only, judgment that can be entered against the respondent in this proceeding is ouster, and, having been appointed by the governor under a statute authorizing his appointment, which in itself contravenes no clause of the constitution and confers upon him no powers to be exercised by virtue of his office forbidden to be exercised by any state officer, his title to the office cannot be questioned.

But the complaint of the petitioners, at whose instance this writ was applied for, is that the respondent, under color of the act of 1895, under which he was appointed, and others set forth in the suggestion, has usurped and is exercising the power of a state officer for the inspection of merchandise, in violation of art. III. sec. 27 of the constitution, which provides that, *173“ No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officer when authorized by law.” If other acts than that of 1895, under which the respondent admittedly was appointed and by which his duties alone are defined, confer powers upon him which ho cannot be permitted to exercise, we are not to pass' upon them in this proceeding. If he has been appointed to a lawful office, carrying with it by the words of the act creating it no coiistitutionally forbidden powers, he is not to be ousted because subsequent legislation may have conferred such powers upon him. His right to hold a lawful office is one thing ; his right to exercise enlarged powers which he may not lawfully exercise is another, and, having determined that he is holding a lawful office, we leave the question of his right to exercise alleged forbidden powers to be raised in some other proceeding, in which specific acts said to be performed by him under statutory powers prohibited by the constitution may be set forth and inquired into and restrained, if unlawful.

In this proceeding the judgment must be for the respondent on his demurrer, and the prothonotary is directed to enter it.