197 A. 235 | Pa. | 1937
Lead Opinion
The Court is unanimously of opinion that the decree of the court below should be affirmed, and because of the necessity for prompt action now files this order. An opinion will be filed later expressing our views on the questions involved.
Decree affirmed at appellant's cost.
Addendum
The General Assembly at the regular session of 1935 adopted three proposals to amend the Constitution,1 and at the special session of 1936 two additional proposals *410 were adopted.2 The Secretary of the Commonwealth, by his deputy, prepared advertisements and distributed them to the newspapers of the State prior to August 3, 1936, with the direction that they be published for the first time on that date. For various reasons these advertisements appeared in only 42 papers on or before the date fixed and were published in the others on subsequent dates, within the period of a week, with the exception of one in which the publication was not made until August 13.3 Thereafter the General Assembly at the regular session of 1937 agreed to the proposed amendments and directed that they be submitted to the people at the election in November 1937. Appellant filed a taxpayer's bill on October 2, 1937, to restrain the Secretary of the Commonwealth from certifying the proposals to the county commissioners for printing on the ballots, on the ground that the publication of the advertisements in 1937 was in violation of Article XVIII, section 1 of the State Constitution. The court *411 below refused the preliminary injunction and dismissed the bill, whereupon this appeal was taken.
Article XVIII, section 1 of the Constitution of Pennsylvania provides inter alia: "Any amendment or amendments to this constitution may be proposed in the Senate or House of Representatives; and, if the same shall be agreed to by a majority of the members elected to each House, such proposed amendment or amendments shall be entered on their journals with the yeas and nays taken thereon, and the Secretary of theCommonwealth shall cause the same to be published three monthsbefore the next general election, in at least two newspapers inevery county in which such newspapers shall be published; and if, in the General Assembly next afterwards chosen, such proposed amendment or amendments shall be agreed to by a majority of the members elected to each House, the Secretary ofthe Commonwealth shall cause the same again to be published inthe manner aforesaid; and such proposed amendment or amendments shall be submitted to the qualified electors of the State in such manner, and at such time at least three months after being so agreed to by the two Houses, as the General Assembly shall prescribe; . . ." The court below held the provisions for publication were merely directory and therefore the advertisements were a substantial compliance with the constitutional direction. The ruling was based upon a dictum inCommonwealth v. Griest,
The question of whether the advertising provisions are mandatory or directory has therefore never been squarely before this court and the solution must depend upon well-settled rules of constitutional construction rather than upon fragmentary dicta in prior decisions. See Com. ex rel. v. Lawrence,
Appellee insists that regardless of whether the advertising provision of the Constitution is mandatory or directory, there is a presumption that the Secretary of the Commonwealth, as a public officer, did all things required of him under the section, because the five proposals were adopted by the General Assembly at the next session subsequent to the first advertisement. It is argued that this presumption is irrebuttable and disposes of the question raised by the bill.Perkins v. Philadelphia,
Did the Secretary of the Commonwealth comply with the constitutional provision? The answer depends entirely upon the meaning of the section and the actual conduct of the officer. The section provides that the Secretary of the Commonwealth "shall cause" the advertisement *415 to be published. This does not require the Secretary himself to go into each county and personally publish the advertisement; he causes it to be published when he places it in the hands of the recognized media for publication in time to permit its insertion three months before the election, and with direction to publish before that time. The Secretary has a grave duty to perform in this regard and his failure, or that of his clerks or deputies, to carry out this mandate subjects them to criminal responsibility for nonfeasance or malfeasance in office. He cannot by such failure defeat the will of the people. The framers did not intend the Secretary of the Commonwealth should be responsible for the actual publication; he has no means of accomplishing this. Nor will the submission of a proposed amendment be frustrated by the neglect or refusal of one or more newspapers to publish within the time specified. To hold otherwise would render the adoption of amendments dependent on the action of newspapers, and if any of these should be opposed to them, it could frustrate their adoption. All the section commands is that the Secretary transmit the advertisements of the proposed amendment to the proper newspapers within sufficient time to enable them to be published at a date three months or more in advance of the election, with directions that they be so published. This is all the Secretary is required to do to effect publication under the section, and the section itself contains the complete and only method in which an amendment may be adopted. See Com. exrel. v. Lawrence, supra. He should however, keep in his office a permanent record of all proposed amendments with a list of the newspapers that received the advertisements and the date received, so that the difficulty here encountered may be obviated.
It appears in this case, and was admitted at the bar of the court, that the Secretary, through his deputy, transmitted the required notices to two newspapers in each county of the state in ample time to permit their *416 insertion on or before August 3rd. The newspapers were directed to publish the advertisements before or on that date. It is conceded that if this was done the Secretary fully complied with the mandatory requirements of the section and satisfied this constitutional provision. With this definitely established, the fact that some of the advertisements were not published until a few days after this date does not affect the validity of the submission of the proposed amendments nor constitute a violation of the Constitution. The Secretary performed his duty when he, through his deputy, issued the advertisements and ordered their publication on time.
In one case the notices appeared in a Sunday paper. The advertising in such papers is ordinarily published on Saturday, but since they have in the past been regarded as improper for legal notices, perhaps a special edition should have been published to comply with the Secretary's direction. That the newspaper did not do so is not the fault of the Secretary, nor does it constitute a failure on his part to meet his constitutional duty.
One further point is raised by this appeal, and that is with reference to the delay of appellant in filing his bill to enjoin the submission of the amendments. Because of the intense importance to the people of the Commonwealth of matters affecting the amendment of their fundamental law, the doctrine of laches cannot be invoked to prevent the determination of the propriety of the submission of an amendment. This is particularly true because the law of this State prohibits inquiry into the validity of the steps preliminary to the adoption of an amendment after it has received the approval of the people and taken its place in the body of our Constitution. See Armstrong v. King, supra.
The judgment is affirmed.