458 Pa. 396 | Pa. | 1974
Lead Opinion
Opinion by
Subsequent to April 23, 1970, the Boroughs of Hummelstown, Dauphin and Boyalton instituted annexation proceedings against the Townships of Derry, Middle Paxton and Londonderry, respectively. All proceedings were instituted under the provisions of the Borough Code. Each of the townships filed complaints in the Court of Common Pleas of Dauphin County, alleging that the. annexation procedures of the Borough Code had been repealed by §8 of Article IX of the Pennsylvania Constitution. The Court of Common Pleas of Dauphin County dismissed each of the townships’ complaints, but on appeal, the Commonwealth Court reversed.
Article IX, §8, of the Constitution, adopted April 23, 1968, reads as follows:
“8. Consolidation, merger or boundary change. Uniform Legislation. The General Assembly shall,*399 within two years following the adoption of this article, enact uniform legislation establishing the procedure for consolidation, merger or change of the boundaries of municipalities.
“Initiative. The electors of any municipality shall have the right, by initiative and referendum, to consolidate, merge and change boundaries by a majority vote of those voting thereon in each municipality, without the approval of any governing body.
“Study. The General Assembly shall designate an agency of the Commonwealth to study consolidation, merger and boundary changes, advise municipalities on all problems which might be connected therewith, and initiate local referendum.
“Legislative Power. Nothing herein shall prohibit or prevent the General Assembly from providing additional methods for consolidation, merger or change of boundaries.” (Emphasis supplied.)
Section 14 of Article IX contains the following provision with regard to the effective date of §8:
“This new article and the repeal of existing sections shall take effect on the date of approval by the electorate, except that the following sections shall take effect on the effective date of legislation adopted pursuant to the sections or the date indicated below, whichever shall first occur.
“The first, third and fourth paragraphs of section eight shall take effect two years after the effective date. The second sentence of section one, the fourth sentence of section two, all of section three, the third paragraph of section four, and the first paragraph of section ten shall take effect four years after the effective date. The second sentence of section one and the first paragraph of section eight on Uniform Legislation shall be construed so as to be consistent with the jurisdiction of this Convention.”
As additional support for our interpretation, we note that where a particular section of Article IX was not to take effect until four years after the effective date of Article IX, the constitutional draftsmen said so specifically.
Since the Legislature did not enact uniform legislation regarding annexation procedures by April 23,1970, all annexation after that date must be by initiative, as set forth in Article IX, §8.
Order of the Commonwealth Court affirmed.
The eases involving the Boroughs of Hummelstown and Dauphin were combined. In the case involving the Borough of Boyalton, the parties stipulated they would be bound by the Commonwealth Court’s decision in the other case. .
Dissenting Opinion
Dissenting Opinion by
I agree with the majority that article IX, section 8 of the Pennsylvania Constitution establishes a two-year period for the adoption of uniform legislation on the subject of consolidation, merger, and boundary changes of municipalities. However, the majority assumes, without explicitly so deciding, that the failure of the Legislature to act within that period results in the implicit repeal of all legislation regarding annexation procedures which article IX, section 8 directed to be replaced. With this assumption I cannot agree.
In order to affirm, the majority of necessity must have adopted the rationale proferred by the Commonwealth Court. That court, reasoning that the word “shall” in section 8 is mandatory, concluded: “We believe that the language of paragraph one of Article IX, Section 8, of the Constitution of Pennsylvania was a mandate to the Legislature to act within the specified time necessarily abrogating the preexisting legislation sought to be replaced.” 10 Pa. Commonwealth Ct. 431, 439, 308 A.2d 208, 211.
In my view, sensitive questions of constitutional interpretation are not to be decided by mechanically classifying a provision as either “mandatory” or “directory” and divining the supposed automatic consequences that flow from that classification.
The mere use of the word “shall” is not a sufficient basis upon which to conclude that the provision is mandatory. The substance of what is directed to be done and by whom must be considered. See McQuiston’s Adoption, 238 Pa. 304, 86 A. 205 (1913) ;
The section in question directs the Legislature to enact uniform laws establishing procedures for consolidation, merger, and boundary changes of municipalities. It thus assigns a project of great magnitude and complexity to a body traditionally vested with wide disere
The cases relied on by the Commonwealth Court do not require a different conclusion. Tausig v. Lawrence, 328 Pa. 408, 197 A. 235 (1938), involved a constitutional provision establishing procedures for amending the Constitution. Specifically, the section created a ministerial duty in the Secretary of the Commonwealth to publish proposed amendments three months before the next general election. This Court stated in dictum that the failure to literally perform aborted the amendment process. Underlying that statement is a firm belief that strict compliance with the prescribed process was essential to the achievement of the goal. Commonwealth ex rel. Woods v. Davis, 299 Pa. 276, 149 A. 176 (1930), held that a provision requiring that all officers “shall be removed [from office] on conviction of misbehavior in office or of any infamous crime” was self-executing.
The logic of the majority and the Commonwealth Court leads to the final conclusion that, because the Legislature failed to enact uniform legislation within the “mandated” period, it is prohibited from ever doing so. Action after the expiration of the two-year period would not be literal compliance with a “mandatory” command. That such an absurd result is the conclusion demonstrates the error of the premise. See Statutory Construction Act, 1 Pa.C.S. § 1922(1) (Special Pamphlet, 1973).
That error would be avoided if we heeded the advice of our great predecessor, Chief Justice Gibson: “A constitution is not to receive a technical construction, like a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them; and, to that end, its commands as to the time or manner of performing an act are to be considered as merely directory whenever it is not said that the act shall be performed at the time or in the manner prescribed, and no other.” Commonwealth v. Clark, 7 W. & S. 127, 133 (Pa. 1844).
“ ‘Whether a particular statute is mandatory or directory does not depend on its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.’ ” 238 Pa. at 308, 86 A. at 206.