Commonwealth Ex Rel. Schnader v. Liveright

Dissenting Opinion by

Mr. Justice Simpson :

Defendants, who are respectively the secretary of welfare, the auditor general and the state treasurer of the Commonwealth, appeal from a judgment awarding a peremptory mandamus, directing them “to perform the duties imposed upon and required of each of them under the provisions of the Act” of December 28, 1931, P. L. 1503. The only question involved is the constitutionality of that statute. It was sustained by the court below, and this, appellants allege and I agree, is the error which should require a reversal of the judgment.

The act was passed at a special session of the legislature, duly convened by the governor, his proclamation calling it being printed in- the pamphlet laws of that year at page 1489, and his supplemental proclamation at page 1493. In order to sustain the statute, the court below construed the proclamation as embracing, inter alia, the general subject of “unemployment relief,” and held that the act dealt with that subject. Neither by that tribunal, nor by counsel for appellees, nor in the majority opinion, have we been pointed to any other subject, in either proclamation, which could be utilized to sustain it. I am willing to concede, for the purposes of this opinion, that “unemployment relief” was sufficiently designated in the proclamation, and that leaves open, on this branch of the case, but a single question: Is the statute one for “unemployment relief?” Upon it, I disagree with the majority of the court.

Article III, section 7, of the Constitution provides that “when the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of

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the governor calling such session.” Those words are plain, ordinary words; none of them are technical or ambiguous, and each and all of them could have been readily understood by the body of the electorate, without even the necessity of looking into a dictionary to ascertain their meaning. Under such circumstances, we would not be justified in giving to them an unusual significance. “Where ordinary words are used in the Constitution, they must be construed in their popular and general sense, as the people who voted for it would understand them:” Hoffman v. Kline, 300 Pa. 485, 494 . To the same effect are Collins v. Kephart, 271 Pa. 428, 434 ; Busser v. Snyder, 282 Pa. 440, 449 , and numerous other cases. Upon this construction of the Constitution we all agree.

“The mandate of the Constitution is imperative that the legislature, at special sessions, shall pass no law upon any subject not designated in the call:” Pittsburgh’s Petition, 217 Pa. 227, 230 . The subjects “designated in the proclamation of the governor,” cannot be broadened or narrowed by the legislature or the courts, in order to either approve or disapprove of a given statute. If they could, then the constitutional provision would not be mandatory, nor would its words “be construed in their popular and general sense, as the people who voted for it would understand them.” For instance, if the governor designated the subject of “taxation” as one of those to be considered, then any and every branch of that subject — taxation upon capital stock, taxation upon inheritances, taxation upon moneys at interest, etc., etc., — could be made the subject of legislation at the “special session;” and proof or even an admission of the fact that what moved him to make the call was only his belief that capital stock was not adequately taxed, would not result in the conclusion that no legislation was permissible except upon that particular subject. On the other hand, if the subject of the tax on capital stock was the only one designated in the procla

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mation, none of the other branches of the general subject of taxation could constitutionally be passed upon by the legislature at that session. Up to this point also the whole court agrees.

Moreover, if we were to hold that the Constitution intended that the governor could specify only general as distinguished from special subjects, appellees would not be aided. Since no power is given the legislature to enlarge the subject designated in the proclamation, an improper limitation could only result in there being no subject constitutionally “designated,” and hence there could be no constitutional legislation relating to the subject either as designated or attempted to be enlarged. This is made clear in Denver v. Moss, 50 Colorado 282, 286. In that state, where the constitutional provision is substantially the same as ours, the governor called a special session, and designated as one of the subjects of legislation: “To enact any and all legislation relating to, or in any wise affecting corporations, both foreign and domestic, of a quasi public nature.” Under it, the legislature passed an act requiring railroads to fence their right-of-way. It was held to be unconstitutional. The court said that, by the matter above quoted, the governor “specifically pointed out the persons, the class, the interests to be affected, but not the special business or subject-matter of legislation. He left the legislature to determine this for itself, when, by a direct and positive constitutional provision, that particular function was and is for him to discharge, and for him alone...... No subject of special legislation having been named, under this provision of the proclamation, no legislation whatever was competent...... If it be competent for the governor, after the general manner attempted, to authorize the General Assembly to select for itself the subject-matter of legislation and enact laws accordingly, then it is equally permissible for him, in his proclamation, to say that the General Assembly is called in special session ‘To enact any and all legislation relating to

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or in

any

wise affecting

the

qualified voters of the State, or the taxpayers of the State, or the citizens of the State/ and thus the door is opened wide for general legislation at a special session......[By this means] the constitutional provision [would be] utterly disregarded, and its main and most wholesome and salutary purpose, that of confining legislation to the specific subject-matter concerning which an emergency is believed to exist, completely nullified.” The United States Circuit Court of Appeals for the Eighth Circuit reached the same conclusion: Nielsen v. C., B. & Q. R. R. Co., 187 Fed. 393 .

It is no answer to say

“that

if the governor is permitted to dictate to the legislature just what specific bills it may pass, there would be a dangerous encroachment on the independence of the legislature.” As usual in arguments of this kind, they have no bearing on the matter before the court. Neither the constitutional provision, nor our construction of it, lends the slightest aid to the imaginary power suggested. The legislature may pass as many bills as it pleases, and of as diverse a character, provided only their subject-matter is “designated in the proclamation,” and, if it does not like those that are designated, it may refuse to pass any bills. True, this is a limitation on the action of the legislature during the special session; but that is exactly what the Constitution says it shall be. Moreover, as pointed out by both the majority and the minority in Perkins v. Phila., 156 Pa. 554, 565, 569 , the constitutional convention of 1873 was called for the express purpose of limiting the power of the legislature, and even a perfunctory study of the Constitution will show that its provisions, in large part, resulted from that purpose. Those who will take the trouble to read that instrument, especially article III, and will note the flood of legislation in the sessions from 1850 to 1873, probably will not conclude that such legislative limitation is seriously objectionable; but, at any rate, the courts must interpret the

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Constitution, not emasculate it, whatever may be the effect on legislative power. As to the statements in this paragraph there is no lack of harmony in the court.

Bearing steadily in mind the principles to which we have adverted, let us see whether the statute is one for “unemployment relief.” The preamble recites that “Present conditions of unemployment aggravate the normal situation facing public authorities charged with the care of the

poor.”

Section 1 appropriates $10,000,000 “To the department of welfare for payment to political subdivisions charged by law with the care of the

poor.”

Section 2 directs that department to divide that sum “among the several counties of this Commonwealth on a ratio that the estimated number of unemployed persons in a county bears to the estimated total number of unemployed persons in the entire Commonwealth.” Section 3 specifies the political subdivisions in the several counties to which the allotted money should be payable. Section 4 authorizes each such “political subdivision to expend the moneys received from the appropriation made by this act for the purpose of providing food, clothing, fuel and shelter for residents within their districts who are

without means of support.”

Section 5 directs that the funds received “shall be audited by the auditors of the respective political subdivisions in the same manner and with like effect as other moneys expended by such subdivisions.” The sixth and final section provides that the “act shall be in force immediately upon its passage.”

It will be noticed that in the expenditure of the fund appropriated by the act, there is not even an attempt to draw a distinction between those who are poor because they can obtain no employment, and those who are poor because of laziness, old age, sickness or inability or unwillingness to work from any other cause. The statute is, therefore, so far as expenditures under it are concerned, a poor relief act, as distinguished from an un

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employment relief act. Whoever is “without means of support” may get the relief, and the funds expended are to be audited, not by the State, but “by the auditors of the respective political subdivisions in the same manner and with like effect as other money expended by such subdivisions.” It is not, therefore, an “unemployment relief” act, but a poor relief statute. At this point comes the vital disagreement with the majority of the court. It says: “The fact that the act may include in addition to the vast numbers of unemployed without means of support,.or poor persons, a small number of poor persons who are such from other causes, should not invalidate the act as being without the call, especially as the governor well knew, in suggesting that poor districts furnish unemployment relief, that such class must of necessity be included.” This is an express admission that, by the statute, the legislature attempted to enlarge the subject-matter of the call which, as we have shown, necessarily resulted in unconstitutionality. That it did so attempt is clearly set forth by section

i

of the act which authorizes the poor districts “to expend the moneys received from the appropriation made by this act for the purpose of providing food, clothing, fuel and shelter within their districts who are without means of support,” without limiting the class to those who reached that condition by reason of unemployment, which is the only thing covered by the governor’s call. If it were true, as stated in the above quotation from the opinion, that there are only “a small number of poor persons who are, such from other causes” than unemployment, it would not aid the majority opinion, since there are no degrees of unconstitutionality, — if an act is unconstitutional it is forbidden, no matter how small or how great the unconstitutionality. Unhappily, however, the fact, so far as my experience goes, is not as stated, such other “poor persons” are far from being “a small number,” and that number, small or great, may, in some or all of the poor districts, get the bulk of the fund appropriated

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by the act. Nor is it accurate to say that “the governor well knew, in suggesting that poor districts furnish unemployment relief that such class must of necessity be included.” He did not so suggest. The limit that he went was in clause 1 that the state commission on unemployment relief cooperate with poor districts in affording relief to the unemployed, and approve or disapprove plans for unemployment relief; in clause 2 that poor districts be authorized “to negotiate emergency loans for unemployment relief;” in clause 3 that a constitutional amendment be passed authorizing the state officers to pay back one-half of the amount borrowed for that purpose ; and in clause 5 authorizing poor districts to levy taxes for unemployment relief. This being so, it is not accurate to say, as the majority do, that the governor’s “deliberate acts [show] he must have meant unemployment relief in the sense of poor relief, as it was the only relief the poor boards could give.” All these subsidiary matters are of little moment, however; the point is the majority opinion establishes that the statute is unconstitutional, but by a pure petitio principii attempts to carry its point at the expense of the Constitution.

That the statute is a “poor relief” act, and not an “unemployment relief” act is made clear also by the title to the statute, which is “An act making an appropriation under the police power and as a governmental duty to the department of welfare for state aid to political subdivisions charged by law with the care of the poor, and providing for the allocation and use of the moneys so appropriated.” In this there is not a word relative to “unemployment relief,” which, if it was to be the subject of the bill, should have been

“clearly

expressed in its title” if the act was to be held constitutional: Constitution of Penna., article III, section 3; Provident L. & T. Co. v. Hammond, 230 Pa. 407 ; Spangler’s Est., 281 Pa. 118 ; Com. v. Pure Oil Co., 303 Pa. 112 . Reasonable doubt as to the meaning of the language in the title is, pf itself, sufficient to defeat the enactment: Guppy v.

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Moltrup, 281 Pa. 343 . The opinion of the majority as to the statute, reaches the remarkable conclusion that it must be construed to be unconstitutional in order to sustain it, whereas the law is that it must never be so construed as to be unconstitutional unless no other course is reasonably possible: Fluke v. Lang, 283 Pa. 54 ; Com. v. Pure Oil Co., supra.

I am of opinion, also, that the act is unconstitutional for the further reason that it violates the first part of article III, section 18, of the state Constitution, which provides that “No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes, to any person or community, nor to any denominational or sectarian institution, corporation or association.” It is conceded, of course, that this statute is one “made for charitable ......or benevolent purposes,” and hence the only question is — is it made “to any person or community?” I am of opinion it is made to both, and so the majority opinion concedes. Certainly the common people who adopted the Constitution would say that that section forbade either direct or indirect appropriations for charitable or benevolent purposes to any person or community, and so it has always been construed. The fact that, in the first instance, the appropriation is made to the department of welfare, is a matter of no moment; that body is but a conduit, for allotment purposes, to convey it to the poor districts of the State, who, in turn, distribute it among the poor, irrespective of the cause of their poverty.

We have considered this section of the Constitution a number of times in recent years (see Com. v. Alden Coal Co., 251 Pa. 134 ; Collings v. Kephart, 271 Pa. 428 ; Busser v. Snyder, 282 Pa. 440 , and Collins v. Martin, 290 Pa. 388 ) and our construction of it has been “without variableness or shadow of turning.” It suffices, however, to quote from Busser v. Snyder, at pages 451, 452: “Appellant further argues that the phrase To any per

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son or community’ has a restricted meaning, and it is on these words the Commonwealth chiefly relies to sustain the act. In effect, appellant would have ‘person’ used in an individual rather than a collective sense, — certainly not broad enough to include the government acting in an administrative capacity, functioning through an agency, to work out governmental policies. Appellant argues that direct appropriations, in terms, are not prohibited to such agency, therefore the act is valid, even though the ultimate object may be to give to persons prohibited from receiving the money thus appropriated. This contention is not sound; ‘person’ and ‘community’ are not limited to the idea of a single person or place where persons are located; they are used in an inclusive sense, relating to an individual or a group or class of persons, wherever situated, in any part or all of the Commonwealth. It applies to persons, kind, class and place, without qualification. The language of the Constitution is an absolute and general prohibition. Nor does the fact that the appropriation is made to an agency (the intermediate and practical step by which public money is distributed to citizens) aid appellant’s case. The gift is not to the commission, but to the particular persons selected by the legislature to receive it. The commission cannot use the money; it merely passes it on to the selected class. It is none the less a gift directly to the individual, even though it pauses for a moment on its way thither in the hands of the agency. Nor can the act be sustained because the appropriation is to an agency as an arm of the government, working out a governmental policy. What the Constitution prohibits is the establishment of any such policy which causes an appropriation of state moneys for benevolent purposes to a particular class of its citizens, whether under the guise of an agency, as an arm of the government through which a system is created, or directly to the individual. As said by the court below, this proposition ‘is tantamount to saying the legislature can pass a law to do the

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thing indirectly which the Constitution prohibits it from doing directly.’ If this can be done, the Constitution imposes no restraint on the expenditure of money. But our present Chief Justice, in Collins v. State Treasurer, supra, 436, 439, 440, answered this when he said, ‘But that which cannot be done directly the law will not permit to be accomplished by indirection, for such a course, when tolerated by the courts, only serves to bring the law into contempt...... The pruning knife of the law eliminates all such devices, and lays bare the realities of the situation, with which we must deal...... The state’s money cannot be permitted to go through the agency of the hospital association......since it falls within the class to which that character of recognition is forbidden by the Constitution.’ ” As already stated, the majority opinion here reasserts the conclusions overruled in that paragraph.

It is true that we also said in the case last cited, that the Constitution was not intended to and did not prevent legislation in relief of the poor, but we added (page 457) that the words “poor laws and persons” cannot be enlarged to include those not embraced therein at the time of the adoption of the Constitution, and that any attempt so to do would but result in antagonism to article III, section 18, of the Constitution.

In the instant case, therefore, appellees are impaled on one or the other of the horns of this dilemma: If the Act of 1931 is a poor law it is not within the purview of the governor’s proclamation, and hence violates article III, section 7, of the Constitution; if it is not a poor law then it violates article III, sections 3 and 18, of that instrument. In either event the judgment of the court below should be reversed.

Justices Drew and Linn concurred in this dissent.