Lewis v. Lackawanna County

17 Pa. Super. 25 | Pa. Super. Ct. | 1901

Opinion by Beaver, J.,

The facts of this case are agreed upon. There is no dispute as to the law. The only question is as to the application of the law to the facts; or, to be more exact, as to whether the existence of a fact or the announcement of its existence shall govern in the application of the law to the plaintiff’s rights.

Briefly summarized, the facts are that plaintiff was elected district attorney for the county of Lackawanna, November 6, 1900, entered upon the discharge of his duties January 7,1901, and became entitled to certain emoluments of his office between the latter date and January 12,1901, when this suit was brought. If.the acts of assembly of April 2,1863, P. L. 249, and April 12, 1866, P. L. 103, regulating the fees of the district attorney in Lackawanna county, shall prevail, there was due him at the date of the suit $120.

Under the census of 1890 the population of Lackawanna county was 142,088, and under the census of 1900, its population was 193,831. If the plaintiff’s remuneration is the salary fixed by the 14th section of the Act of March 31, 1876, P. L. 13, to wit: $4,000 per annum, there would be a diminution in said remuneration as compared with the fees which he would otherwise receive.

It is provided in section 19 of the act of Congress, approved March 3, 1899, “ that the enumeration of the population required by this act shall commence on the first day of June, 1900, and the first day of June of the year in which each succeeding enumeration shall be made and be taken as of that date.” The 25th section of the same act provides, “ That the director of the census is hereby authorized .... to print, publish and distribute from time to time bulletins and reports of the preliminary and other results of the various investigations required by this act.” By section 30 of the same act, the director of the census is authorized, upon the request of the governor of any state or territory, or the chief officer of any municipal government, to furnish certain information therein prescribed; and, by the 31st section, he is authorized to provide the census office with a seal, which shall be affixed to all certificates and attestations that may be required from the census office.

The announcement of the population of Lackawanna county, as being in excess of 150,000, was first made on November 19, 1900, in a press bulletin from the census bureau in the city of Washington.

Article 3, section 13, of the constitution of Pennsylvania, provides that “ No law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” The question presented is whether the plaintiff is entitled to the emoluments of his office under the laws of 1863 and 1866, supra, or whether he is confined to the salary of $4,000, prescribed for the district attorney under the act of 1876, supra, in counties which shall have less than 250,000 and over 150,000 inhabitants.

In Luzerne County v. Glennon, 109 Pa. 564, it is said: “In Luzerne County v. Griffith, 1 Kulp, 297, this court said: ‘ In the absence of express legislative declaration of the fact of or any other method provided by the legislature for ascertaining it, the last preceding decennial census is to be resorted to as the best evidence of the population of a county in case of classification of counties by population.’

“ In the light of existing legislation, we have no doubt but for the purposes of classification, under the various salary acts, each county must remain in the class in which the last census found it, until it is transferred to another class by a subsequent census. The United States decennial census is the only official determination of population that we now have, and the inconvenience and injustice that would necessarily arise from accepting any unofficial guide to the classification of counties for salary purposes cannot well be over-estimated.”

In view of the law classifying counties for the purpose of fixing salaries of their officials, and of the interpretation put thereon by the Supreme Court in the cases above quoted, when does a county pass from one class to another, and what determines its transfer ? Is it the fact of the existence of its population, as ascertained by the decennial census, or of the public announcement of such a fact? The act of Congress,providing for the census, enacts that the enumeration shall not only be made but- shall be taken, by which we understand is to be determined or held, as of June 1. The Supreme Court says that the fact must govern, that is, the county remains in the class in which the last census found it, until it is transferred to another class by a subsequent census. The census is the enumeration of the population, not the announcement' of the result. This must necessarily be so from a variety of considerations.

The date, as of which the census is taken, must, for all purposes, be the only fixed date for determining the population, although the enumeration may not be made on that date. So important is the question that congress has said that the date shall be fixed as of June 1, of the year in which the census is taken, although the enumeration may not be completed for days thereafter, and although a case can readily be imagined in which a recount might be desirable and necessary, and the announcement of the result delayed for months; but whenever taken or however ascertained, the fact shall be determined as of June 1. And why ? Because, if it were not so, there would be endless confusion and uncertainty and no uniformity. There are perhaps six or more counties in Pennsylvania having a population less than 250,000 and exceeding 150,000, although all of them do not pass from the one class to the other under the present census. It is important, from every consideration, that there should be uniformity in regard to the salaries of the officers of these counties. If, however, the contention of the plaintiff prevails, the salaries of the officials of a portion of these counties might be regulated by the provisions of the act of 18T6, and the remainder by the acts governing the emoluments of their officers passed prior thereto.

The announcement of the fact is subject to many contingencies. A recount might be necessary. The person charged with the computation of the enumeration from the various districts of any given county might be temporarily incapacitated in the discharge of that duty. The county in question might be accidentally omitted from the announcement either in making up the list in the census office or in transmission to the public press. Any number of contingencies will readily suggest themselves which might necessarily delay the announcement.

The contention of the plaintiff is that, although the population of Lackawanna county was, as a matter of fact, on the 1st day of June, 198,831, inasmuch as the announcement of the fact was not made until November 19, 1900, a few days after his election as district attorney, he is, therefore, entitled to the emoluments of his office under the acts of assembly passed prior to 1876 rather than under the salary act of that year. It is not alleged that the plaintiff did not know what the population of Lackawanna county was at the time of his election, but whether he knew it or not, was he not bound by the fact as it then existed? We think beyond question he was. The enactment and publication of our laws furnishes a familiar illustration. All who are subject to the provisions of an act of assembly are bound thereby from the date of its approval, irrespective of the date of publication.

The provisions of the law relate to the salaries of other officers in counties affected thereby beside the district attorney. Suppose some of the officers elected at the same time had made inquiry of the census bureau and had ascertained by an official declaration of the director that the population of Lackawanna county was, on June 1, 1900, in excess of 150,000. Others made no inquiry upon the subject and had no definite information thereof, until the announcement of the 19th of November. Would those who made inquiry be bound by the fact and those who made no inquiry not be bound thereby simply because they had not made inquiry and had not been informed by a semiofficial publication? Surely there could have been and should be no difference. It can be readily seen that the inconvenience and injustice that would necessarily arise from accepting any unofficial guide or haphazard rule as to the classification of counties for salary purposes, which the Supreme Court says cannot well be overestimated, would be equally great, if we were to accept the announcement of the population under the census rather than the fact determined thereby. The uncertainty would be as great as the inconvenience and injustice.

To be logical, it seems to us, that the plaintiff must go a step farther in his contention and allege that not only the announcement, but his knowledge of the announcement is necessary, in order to bind him. Why should he be bound by the announcement of the 19th of November of a fact which existed as of the 1st of June, if he never saw the announcement which is not made by law the evidence of the fact ? There is nothing in the act of congress which makes such an announcement in any legal sense official or binding. It is presumably for the information of the public, but is not made authoritative as a notice, so as to bind individuals, nor is it made evidence of anything for any purpose. If he is to be bound by anything but the fact, his knowledge of it, and not the announcement of it, should govern. The absurdity of such a proposition, however, is manifest upon its face.

Courts take judicial notice of the results of a census. See numerous authorities cited in Bouvier’s Law Dictionary, Rawle’s Revision, under the head of “ Census.” Of what is judicial notice to be taken ? Of the fact as it exists surely and not of its announcement.' When did the fact exist ? The law says June 1, 1900,. not November 19, when the announcement was made through the newspapers. The absurdity of any other rule becomes apparent from a very slight consideration of the consequences. The final official publication of the census of the United States will contain the announcement of the population of the several counties of this commonwealth. Nothing therein contained will probably show the time at which the announcement of the ascertainment of the population thereof was made public. How could this court, for example, take judicial notice of the fact that the population of Lancaster county was announced as of one date, of Montgomery county as of another date, and of Lackawanna county as of a third date, supposing, of course, that the announcement of these several counties was made at different dates, which is entirely possible.

From every consideration, it seems to us that the only reliable rule and the only safe practice is to determine the population of any given county or municipality for any purpose for which it is necessary to determine it as of the date fixed by law for its determination, without reference to the time at which the announcement thereof, official or semiofficial, shall be made. The assignments of error are, therefore, sustained, the judgment of the court below is reversed and judgment is now entered on the reserved point, non obstante veredicto, for the defendant,