Russ v. Commonwealth

210 Pa. 544 | Pa. | 1905

Lead Opinion

Opinion by

Mb. Justice Bbown,

Want of authority from the state to the committees of military affairs of the senate and house to enter into a contract with the plaintiff was the reason given for the entry of the nonsuit and the refusal to take it off. If there was such authority, it is to be found in the following preamble and resolution passed over the veto of the governor: “ Whereas, the dedication of a monument erected in memory of the late General U. S. Grant, in New York, occurs on April 27, and is a matter of national importance, which the commonwealth of Pennsylvania should suitably recognize as commemorating the life and deeds of a hero, whose memory we revere; therefore be it resolved (if the house concur), that the members of the senate and house of representatives attend such dedication in a body, and that all matters pertaining to such attendance be referred to the committee of military affairs of the senate and house.”

In tbe preamble there is not only a recognition by the people of the state, through their representatives, of the national importance of the dedication of the monument to a great soldier, but an avowal of the commonwealth’s duty to suitably recognize the event. This was laudable, because it was patriotic. By the resolution action was taken, committing the state to participation in the dedicatoiy exercises. It was sent to the governor for his approval, because it must have been regarded by those who passed it as committing the state to it, and, if so, it was a matter in the nature of legislation. It is only such resolutions that require executive approval under section» 26, of article III of the constitution: Commonwealth v. Griest, 196 Pa. 396. If both houses had simply resolved to attend the exercises in a body, and to adjourn for a day for that purpose, it would have been no concern of the governor, and they could have gone with or without his approval; but if more was embodied in the resolution, amounting practically to an enactment authorizing special committees of the senate and house to act on behalf of the state in making suitable the recognition which both branches of the legislature had agreed upon, it was for the governor to approve or disapprove.

But the contention of the learned counsel for the commonwealth is that, even if the resolution does involve legislation, no authority to act was conferred upon the committees by the words “ all matters pertaining to such attendance be referred to the committee of military affairs of the senate and house,” their duty being simply to consider and report to the respective houses. This cannot be regarded as the reasonable meaning of the words. While there is no express authority given to the committees to do any particular thing, there is, on the other hand, no direction to them to report, and that they were to act, and not simply report what further action each house should take, seems to be manifest. The resolution was first introduced in the senate. Why should it ask for a report from the committee of military affairs of the house as to what it should do, and why should the house, subsequently concurring in the resolution to attend the dedication in a body, ask for a report from the senate’s committee ? Both bodies had resolved to go, and referred all matters in connection with their going to a joint committee composed of the appropriate committee of each. The intention of the legislature is to be gathered not from the strained, but from the natural, meaning of the reference to the committee of all matters relating to the attendance. “ All matters pertaining to such attendance ” certainly included arrangements for the transportation and entertainment of the members of the legislature, and if these were referred to the committees, the common understanding would be that they were to make them. If so, the power had necessarily been conferred on the committees of contracting for such arrangements. They so understood the resolution; the plaintiff, who dealt with them, had the same understanding of it; and the members themselves intended that it should be so understood, for, without calling for or receiving any report from the committees, they accepted the arrangements that had been made for them. The failure of the learned court below to so interpret it must be regarded as error. We consider this clear, with nothing before us except the resolution itself; but subsequent legislation, while not purporting to be expository of it, unmistakably indicates the legislative understanding of what was intended by it. By an act passed at the same session, though vetoed by the governor because regarded as an improper expenditure of the public funds, an appropriation was made for the payment of the expenses incurred by the legislature “ in attending the ceremonies connected with the unveiling of the monument at the tomb of General U. S. Grant.” From the testimony, it appears that the only expenses incurred were for the entertainment furnished by the plaintiff and for badges supplied by J. H. Shaw. By the Act of May 15, 190B, P. L. 406, the sum of $421 was appropriated in payment of tlie badges furnished by Shaw. These acts were passed by the legislature with section 11 of article III of the constitution before it, providing that no bill shall be passed “ for the payment of any claim against the commonwealth without previous authority of law.” The authority of law here was the reference by the legislature of all matters pertaining to the attendance to the committees of military affairs of the senate and house. The resolution and acts of 1897 and 1908 related to the same subject-matter, and are to be considered together in determining the legislative intention. “ The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law: Doug. 30; 2 Term Rep. 387, 586; 4 Maule & Selw. 210. If a tiling contained in a subsequent statute, be within the reason of the former statute, it shall be taken to be within the meaning of that statute : Lord Raym. 1028 ; and if it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute : Morris v. Mellin, 6 Barn. & Cress. 454; 7 Barn. & Cress. 99. Wherever any words of a statute are doubtful or obscure, the intention of the legislature is to be resorted to, in order to find the meaning of the words: Wimbish v. Tailbois, Plowd. 57. A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter: Stowell v. Zouch, Plowd. 356. The citations are but different illustrations of the rule, that the meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed—the limitation of the rule being, that to extend the meaning to any case not included in the words, the case must be shown to come within the same reason upon which the lawmaker proceeded, and not only within a like reason: ” United States v. Freeman, 3 Howard, 556.

A second question raised by the appellee is as to the power of the legislature to authorize the committees to make such a contract as the one on which the plaintiff sues. The test of legislative power is constitutional restriction. What the people have not said in the organic law their representatives shall not do, they may do. It is hardly needful that authorities be cited and multiplied in support of this, but, as they seem to be unheeded whenever legislation is not in accord with the sense of right, propriety and views of those affected by it, there is nothing for us to do except to keep on repeating, even at great length, what has been said, in the hope that ultimately legislative power may be better understood.

“ The constitution allows to the legislature every power which it does not positively prohibit: ” Norris v. Clymer, 2 Pa. 277. “To me, it is as plain that the general assembly may exercise all powers which are properly legislative, and which are not taken away by our own, or by the federal constitution, as it is that the people have all the rights which are expressly reserved. We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this. It would be assuming a right to change the constitution, to supply what we might conceive to be its defects, to fill up every casus omissus, and to interpolate into it whatever in our opinion ought to have been put there by its framers. The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument, we become ourselves the aggressors, and violate both the letter and spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away; if we can mend, we can mar; if we can remove the landmarks which we find established, we can obliterate them; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely. The great powers given to the legislature are liable to be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived of a government with power sufficient to answer its legitimate ends, and at the same time incapable of mischief. No political system can be made so perfect that its rulers will always hold it to be the true course. In tbe very best a great deal must be trusted to the discretion of those who administer it. In ours, the people have given larger powers to the legislature, and relied, for the faithful execution of them, on the wisdom and honesty of that department, and on the direct accountability of the members to their constituents. There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected by the judiciary. There is nothing more easy than to imagine a thousand tyrannical things which the legislature may do, if its members forget all their duties, disregard utterly the obligations they owe to their constituents, and recklessly determine to trample upon right and justice: ” Black, C. J., in Sharpless v. Mayor of Philadelphia, 21 Pa. 147. “ However easy it may be to demonstrate that public debts ought not to be created for the benefit of private corporations, and that such a system of making improvements is impolitic, dangerous, and contrary to the principles of á sound public morality, we can find nothing in the constitution on which we can rest our consciences in saying that it is forbidden by that instrument:” Moers v. City of Reading, 21 Pa. 188. “ Nothing but a clear violation of the constitution—a clear usurpation of power prohibited—will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void : ” Pennsylvania Railroad Company v. Riblet, 66 Pa. 164. “To justify a court in pronouncing an act of the legislature unconstitutional and void, either in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the act. This rule of construction is so well settled by authority that it is entirely unnecessary to cite the cases: ” Commonwealth ex rel. Wolfe v. Butler, 99 Pa. 535. “In creating a legislative department, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete authority as it vests in and may be exercised by the sovereign power of any state, subject only to such restrictions as they have seen fit to, impose, and to the limitations which are contained in the constitution of the United States. The legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with the general authority to make laws at discretion: ” Powell v. Commonwealth, 114 Pa 265. “ But whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution. Certain grants of power, very specifically set forth, were made by the states to the United States, and these cannot be revoked or disregarded by state legislation; then come the specific restraints imposed by our own constitution upon our own legislature ; these must be respected; but in that wide domain not included in either of these boundaries the right of the people through the legislature to enact such laws as they choose, is absolute. Of the use the people may make of this unrestrained power, it is not the business of the courts to inquire. We peruse the expression of their will in the statute; then examine the constitution and ascertain if this instrument says, thou shalt not,’ and if we find no inhibition, then the statute is the law simply because it is the will of the people, and not because it is wise or unwise: ” Commonwealth ex rel. v. Reeder, 171 Pa. 505. Prima facie, the legislative authority is absolute except where expressly limited. This is the uniform principle of all political and legal views, and of all constructions recognized by constitutional law: ” Commonwealth v. Moir, 199 Pa. 534. “ The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as' those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of riglit, reason and expediency with the lawmaking power. . . . If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution: ” Cooley on Constitutional Limitations, ch. 7, secs. 4 and 5 (6 ed. 1890, p. 201).

Scanning the list of expressly forbidden legislation, as found in section 7, article III, of the constitution, there is no restriction upon what was done by the legislature in its action assailed in this proceeding; nor is there any other line in that instrument by which the action is impliedly prohibited, for nowhere is such legislation, or anything relating to it, mentioned. The resolution may be regarded by some as unwise and improper, and if in any legislative district there were those so minded at the time it was adopted, and they happened to be in the majority, they had the opportunity to exhibit their disapproval, if any senator or member who voted for it came up for re-election. It is doubtful, however, if any legislative career would have been cut short for support of the measure. From time out of mind legislative bodies have, at the public expense, and with hearty popular approval, paid fitting tribute to the deserving dead, who, in peace or war, had served the state or nation; and public money so expended is well spent for the public, for it strengthens and elevates patriotism, and helps to make better men and women of the young who witness the homage so paid. But this digression need proceed no further.

We do not understand that if the legislature had named a separate commission to represent the state at the exercises, and had provided for the payment of its expenses, the power to do so would be questioned; but because the two bodies constituted themselves such representatives, the power is questioned, for the reason that, as the claim of the plaintiff is for food and drink furnished them, they will, if it is allowed, receive compensation in violation of section 8, article II, of the constitution, which provides that “ The members of the general assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise.”

Proper entertainment of the legislature was not merely incidental to its attendance at the dedication, but was necessary, and, therefore, formed part of the state’s expenses in making suitable recognition of the ceremony. The concurrent resolution contemplated the payment of nothing but such expenses, and their payment to the man who furnished what was so necessary cannot be regarded as compensation or pay to the members of the legislature for their services as legislators in any sense, whether such strained meaning for “ compensation ” be searched for in dictionary or encyclopedia of law, or the word is to be interpreted as popularly understood.

It is conceded by the learned and able counsel for appellee that the payment of the expenses may not be technically compensation, and yet, by the process of reasoning through which they would have us declare it to be compensation within the constitutional prohibition, the very ink furnished to senators and members, and the pens dipped into it in answering the daily inquiries of constituents, would have to be regarded as constitutionally unlawful compensation to them, if paid for by the state.

The payment of expenses by the state in having itself fittingly represented, when it ought to be represented on great public occasions, involves nothing but the maintenance of its own dignity; and who shall represent it, or how it shall be represented, is for the legislature alone. If in their judgment its members, representing every portion of the state, ought to do so, who can better represent the commonwealth, and when they do so, what legislative service are they rendering for which they are receiving forbidden compensation because the state pays the expenses necessarily incident to its representation ? The state is often represented by commissions created by the legislature, composed in part of members of the senate and house, but no one bas ever thought of asking a court to say that those members of such a commission who happen to be senators or representatives receive prohibited compensation because their hotel bills are paid with those of the other members of the commission out of the appropriation for the payment of its legitimate expenses. That members of a legislature may be only part of such commission, instead of as one body being the state’s sole representative, can make no difference in principle, if the position taken by the appellee is to be sustained. It has not been very elaborately pressed by the learned counsel representing the commonwealth, and we need, not discuss it further.

In disposing of the questions raised on this appeal, we have nothing to do with the appellant’s claim as presented in the court below; and it would, therefore, be improper for us to say anything about it. If, after it shall have been passed upon by a jury, the plaintiff or defendant should feel aggrieved by the finding, and the court below should not correct any wrong that may be done, the alleged grievance may be the subject of another appeal. All that we now decide is that, by the act authorizing the appellant to sue the commonwealth, he is to recover such sum as under the rules of pleading and evidence may be justly due him. Under these rules the case must be tried, and such sum awarded to him as, under proper instructions from the court and under all the proofs, the jury may find to be just.

Judgment reversed and procedendo awarded.

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Dissenting Opinion

Mb. Justice Mestbezat and Mb. Justice Potteb

dissenting :

That there may be no doubt as to the claim for which this action was instituted and the items of which the majority of this court says are chargeable against the commonwealth of Pennsylvania, we state the claim in the language of the plaintiff himself, as found in his statement, as follows :

“ Legislature of Pennsylvania,

“ Excursion to New York City

“ General Grant Monument Dedication.

“ To James Russ, Dr.

“ 1887

“April 27, To table supplies..........$1,678.36

wines and liquors....... 3,026.60

supper at Dooner’s for Com. 61.90

J. H. Riebel, cigars...... 450.00

hire of china and breakage . 187.53

employees’ services ...... 240.00

Amount brought forward............$5,644.39

car fare.............. 202.50

purchase of stoves....... 70.00

freight charges......... 8.75

James Russ, incidental expenses ............. 175.00

$6,100.64

“Cr. By liquors returned........ 157.00

sale of stoves.......... 32.00 189.00

$5,911.64

The edibles and drink were furnished as a lunch and dinner, both meals being served between the hours of 11:30 A. M. and 6 p. M., on the boat which carried the legislative excursionists on the Hudson river from Jersey City to a point opposite the Grant monument, a distance of ten miles or less, and back. There were 425 persons, of which number 253 were members of the legislature. Relative to the meals and liquors furnished, Senator Krause, chairman of the joint committee to make arrangements for the excursion, testifies as follows: “ Q. Tell us what he (Russ) furnished. A. He furnished the lunch; as soon as we arrived at Jersey City and got on the boat there was a very nice lunch prepared for us. Q. Go on and state what else Mr. Russ did. A. After the ceremonies were over he furnished an elegant dinner for us, with wines and liquors and everything included, with the cigars; had cigars going on the train, cigars on the boat, and everything in first-class order. Q. Do you remember the kind of wine that was furnished ? A. White Seal; wasn’t any too good for the members of the legislature, we thought. Q. Do you remember what else was furnished, can you tell what was furnished in the way of food for the dinner ? A. Oh, it was so fine that I forget exactly all the elegancies that we had; we had everything first class. Q. Can you tell us what other liquors were furnished ? A. Liquors of all description. Q. Describe them; tell what they were. A. We had plenty of whisky, and we had plenty of beer and plenty of appollinaris; I don’t know how many drank apollinaris, but apollinaris was furnished. Q. Did you specify what liquors? A. Yes, sir; as far as the wines were concerned, because that was a motion unanimously carried in the committee. Q. You did not specify anything with respect to the whisky, beer or cigars ? A. Oh, I told him we wanted all those things. Q. I understand, generally speaking, senator, that you ordered nothing special from Mr. Russ except the wine ? A. That is all. Q. You left it to his discretion? A. That is right.”

John Riebel, a cigar manufacturer of Philadelphia, was a member of the military committee of the house as well as of the joint committee to arrange for the excursion. He was called as a witness by the plaintiff and testified that the joint committee, about three fourths of which were present, held a meeting in Philadelphia the night before the excursion, and that Mr. Dooner served them with a lunch for which a charge is made in the plaintiff’s bill. He further testified: “ Q. Can you tell what he (Russ) gave to you as lunch ? A. Only a first-class lunch; I can’t begin to enumerate what articles he had there, or what food he had there; a first-class lunch in every respect. Q. State whether he provided anything else. A. On our return back he had supplied one of the finest dinners a man wanted to sit down to, served on the boat, had all the elegancies of the season, anything you can mention in the eatable line almost.”

As to the contract made with him by Senator Krause and what was furnished in pursuance of it, the plaintiff testifies : “ Q. What did he say to you when he came there ? A. He told me he wanted a first-class layout, everything up to date, and I did so. Q. What did he tell you he wanted as to the number of meals if anything? A. Well, a lunch the moment we got on the boat and a dinner returning towards New York—Jersey City. Q. What did he (Krause) say? A. He said I should go, ahead and make all arrangements, and especially the one thing that they (the committee) put out especially was ‘ White Seal champagne.’ Q. (Mr. Fox) now can you state what you did furnish? A. Oh, Lord, I furnished everything, they had a nice lunch and very fine dinner. Q. Now about how much a head did you calculate to charge ? A. I did not calculate at all, there was no price whatever, if it cost $5,000,000 there was no price at all that was to it. Q. In other words, there was no limit put on the cost? A. No, sir; not a cent. Q. You don’t know the kind of liquors returned? A. No. Q. Do you know the price charged for the returned liquors ? A. Just that much there; it was very lucky any was returned at all.”

The only basis for this claim of $5,911.16 against the state for table supplies, wines and liquors, cigars and “ incidental expenses ” (about one half of the claim, it will be observed, being for wines and liquors) is a joint resolution passed by the senate and house of representatives over the veto of the governor in which it is resolved “ that the senate and house of representatives attend said dedication (of the General Grant monument in New York) in a body, and that all matters pertaining to such attendance be referred to the committee on military affairs of the senate and house.” The learned trial judge held that this resolution conferred no authority on the committee to make a contract with the plaintiff for the items charged in his bill, and hence he had no valid claim against the state. For the reasons set forth a-t length in the opinion refusing to take off the nonsuit, we entirely concur with the conclusion of the court below, and would affirm the judgment.

It does not aid the position of the majority of the court to cite authorities to sustain the proposition, conceded to be the settled rule in all the states of the federal union, that the power of the general assembly of a state to legislate is absolute, subject only to the restrictions and limitations imposed by the constitution of the state and that of the United States. That principle is not controverted, but it is most strenuously denied that the legislature, by the joint resolution in question, gave authority to the committee on military affairs to bind the state by a contract to pay the plaintiff the claim for which this action was brought. It is apparent that the language of the resolution conferred no direct authority on the committee to enter into a contract to bind the state for any expense incurred by the legislature in attending the dedicatory exercises. If any authority to contract for such purpose is given, it is by implication and that alone, and not being necessarily implied from the power conferred upon the committee by the joint resolution, the court should not sustain it on that ground. The character of the claim conclusively rebuts any implication that the legislature in passing the resolution intended to authorize the committee to make a contract for it. Such interpretation of the resolution opens the door to raids upon the state treasury by committees of the legislature by which the taxpayers of the state can be made to pay claims which, as in this instance, the general assembly of the commonwealth or no other self-respecting legislative body, would for one instant think of approving. Had the plaintiff’s claim, the character of which is shown by the items thereof and the testimony, been presented to the senate and house in open session at the time the joint resolution was passed, we are satisfied that those bodies would not have authorized the committee to contract for or pay it. It would have shocked the legislative conscience, as well as that of the people of the commonwealth. The testimony leaves no doubt as to the purpose in view when the contract was made. and what was expected to be, and what was, furnished in pursuance of it. About seventeen hundred dollars’ worth of food and three thousand dollars’ worth of wines and liquors were consumed on the steamer by the 425- guests of the state in six and one-half hours. This tells the brief but comprehensive story of the manner in which the money claimed here was applied (in the language of the preamble to the joint resolution) “ in commemoration of the life and deeds of a hero whose memory we revere.” Further comment upon the subject is unnecessary. To hold that authority was conferred upon the legislative committee by the concurrent resolution to contract for such a claim, is violative of all sound rulos of interpretation, and is not supported by reason or authority.

We would, morever, take a step further than the trial court and hold that the legislature was prohibited by the constitution from authorizing the committee to make the contract under which this claim is made against the state. Article 2 of section 8 of that instrument provides: “ The members of the general assembly shall receive such salary and mileage for regular and special sessions as shall bo fixed by law, and no other compensation whatever, whether for services upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term,” At the time of the excursion to New York, the members of the legislature were receiving as compensation a salary and mileage fixed by law and hence under this constitutional provision they could receive “no other compensation whatever.” Equally explicit and mandatory is the provision that no member shall “ receive any increase for salary or mileage under any law passed during the term ” for which he is elected. Mr. Buckalew, a recognized authority upon the interpretation of the constitution, says (Constitution 40) : “ Compensation to members is properly for time spent, for services performed and for personal .expenses incurred for the public; but the forms of the compensation to be made to them for outlay, time and labor are the two expressly fixed by the constitution, namely, salary and mileage, which are declared to exclude all others.” A member of the legislature is therefore confined to his salary and mileage as compensation for his services, in neither of which is the claim here presented included. The joint resolution shows that the members attended the dedication as a legislative body, and the claim for the edibles, liquors, cigars, etc., furnished by the plaintiff -is “ other compensation ” to the members of the legislature than salary and mileage and therefore is clearly within the constitutional inhibition. If the sum claimed by the plaintiff had been paid by the state to the members to defray their expenses in attending the dedication, it would clearly have been additional to the compensation allowed them by law. The practical effect of a payment by the state direct to the plaintiff is the same as a payment of the amount to the members and by them to the plaintiff. In either case, they receive an additional compensation from the state for their services as members of the legislative body to which they belong.