# Commonwealth ex rel. Thomas v. Commissioners of Allegheny County > Supreme Court of Pennsylvania · July 1, 1858 · 32 Pa. 218 URL: https://www.frixlaw.com/law-library/cases/6230759 ## Case - **Full name:** The Commonwealth ex rel. Thomas versus The Commissioners of Allegheny County - **Court:** Supreme Court of Pennsylvania - **Decided:** July 1, 1858 - **Citations:** 32 Pa. 218 - **Precedential status:** Published - **Opinion:** Concurrence by Lowrie - **Judges:** Lowrie, Woodward - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6230759 ## Opinion text The following concurring opinion was delivered by Lowrie, C. J. — I concur in every part of the opinion of the court, as delivered by my brother Woodward, that is at all material to this case. But I did not, when the question was formerly here, believe in the constitutionality of such Acts of Assembly as that which is disputed here, and have yet learned nothing to change my views as then expressed, except that legislators and *234 courts have everywhere expressed contrary views, and therefore I ought to adhere to my own with great modesty, if at all. Owing to this belief, the opinion just delivered appears to my mind inadequate, because it does not adequately treat the fundamental question of the cause. I feel this the more, perhaps, because I am myself a citizen residing in Allegheny county. It seems to me, also, that it must appear inadequate to the minds of the people of Allegheny county, who have been with great earnestness and honesty considering and discussing their duty in this matter, and who expect (and I think are entitled to) something more than mere authority, as a means of proving to them what is their duty. They are a people as sincerely devoted to the order of the state as any other, and as little inclined to reject the acts of their government as any people in the world. But they have been forced by circumstances into a review of the fundamental principle of this case, and I think that they are entitled to hear something from us in relation to it. They have gone back into the moral questions that lie at the foundation of all authority and law, and I am willing to accompany them there. I do not again undertake the discussion of the constitutionality of such Acts of Assembly as the one which enters into the foundation of this transaction. This court has already expressed itself as well as it could on that subject, and now we have quite another question before us. Then it was a question simply of the constitutionality of the law. Now it is a question of the validity of contracts, in which the law is only one of the elements. Many times the legislature has passed such laws. It has passed many for the benefit of Allegheny county and its cities, and always, we may presume, from our knowledge of legislative customs, at the instance of the members from Allegheny, who thought they were properly representing the will of their constituents, and wTe hear of none of them having been rebuked for their acts in this respect. These laws were to have no operation without the assent of grand juries drawn by lot from the body of its citizens, and of the county commissioners elected by ballot to manage its financial affairs. This assent was given on many occasions, and the contracts were made; and on the faith of them, with other means, two railroads were constructed, and four others commenced. None of these things were hidden from the people of Allegheny county, for they were not done in a corner, but openly before the public; and all participated in them that chose to do so. Newspapers and public meetings freely discussed the subject, and the hopes of the people bore down all doubt about their right to enter upon the adventure, and it was only when it was discovered to be unsuccessful that any respectable number became awake to the question of the constitutionality of their proceeding. Thus this sort of laws has received the sanction of the esecu *235 tive, legislature, and judiciary of the state, and of the officers, grand juries, and people of the county. Now, therefore, we are not to look upon the Act of Assembly as being the only authority for the issue of these bonds, or to suppose that they are to be set aside — even if the unconstitutionality of the act were fully demonstrated. If the constitution has been violated, it has been done by the combined act of the government and of the people that were interested in the question. It is, therefore, a mistake of the people, as well as of their functionaries, in relation to the meaning of their own frame of government; and the question now is, who shall bear the consequences of the mistake ? — they who made it, or those whom they induced to trust in them — they who actually or tacitly set aside or misunderstood their own constitutional principles of social authority, or the stranger, who trusted that the united conduct of the people and of all their officers was a safe exponent of their principles ? As a moral question, this can receive but one answer. No man of any tolerable morality would say that those who made the mistake may honestly east the loss of it upon those who trusted them as understanding their own business, their own authority, constitution, and laws. Honest men who would advocate repudiation of such a contract, would do it only under ignorance or forgetfulness of facts and principles constituting essential elements of the case. No nation can show better evidence of its title to nationality than this. No non-constitutional government can more clearly prove its legitimacy. No national treaty, contract, or debt — not even the debts contracted in our Revolution — has a more solid basis of common assent. Indeed, our Revolutionary debts, apart from the element of success, had a less solid basis, for they had no constitutional authority, and there were more tories then, in proportion, than dissenters from the present contracts. There was not a man in Allegheny county, who has sense enough to comprehend a single principle of the case, who did not know that these things were going on. All knew that the pullie faith was to be pledged in these transactions. They knew it as a social and not an individual movement. They knew it was a pledge of the public taxes that was to be made; and if they made no effort to prevent it, they assented to it, according to the maxim of common sense and common honesty, that silence gives consent, and which is otherwise thus expressed — he who is silent when he ought to speak, must remain silent when he wants to speak and ought not. This is a moral maxim on which is founded an immense body of legal rules, which commend themselves to the honesty of every man. We shall state some of them. A principal is bound by the acts of his agent, even when he exceeds his authority, if the principal knows and does not forbid it. If one puts another in a *236 position that gives him an apparent authority, others may trust to the appearance, though it may not truly express the real authority vested in the agent. And if one usurps the position of agent for another, who sees him thus acting in his behalf, the latter must object to his acts or consent to be bound by them. And if one man sells property as his own, in the presence of the real owner, and without objection from him, the latter cannot afterwards assert his title. And the principle lives in full life in international law. Even a usurping government has authority over those who submit to it, to bind them towards other persons and nations. If it be in fact the government, it may do all acts of government, though in moral principle it ought to have no authority. It binds the nation by its acts, and all the people who constitute the nation, whether they assent or dissent. If this were not so, no national contracts or treaties could be proved to be valid; for people who are devoted to their own form of government, are very apt to regard all others as illegitimate— republicans generally regard all monarchical governments thus. So far as relates to strangers, the exercise of authority is proof of its legitimacy. If it were not so, every person, and every government, having occasion to treat or contract with another government, would have a right to investigate and decide upon its legitimacy. More than this ; since nations have a right to demand treaties of each other, in order to regulate their intercourse, each would, on this theory, have a right to demand that the other should have a legitimate government, that could enter into a valid treaty; and this would often furnish an excuse for a strong nation to dictate a form of government to a weaker one. The contrary principle is therefore impracticable, and would be intolerable. This authority, of even a usurping government, is abundantly recognised as a principle of international law, and might be illustrated by many instances. We select one from Grecian history, perhaps an extreme one. When the Thirty Tyrants, an unconstitutional and usurping government, in the last days of its. existence, and as a means of saving itself from the returning constitutional democracy, borrowed a large sum of money, the restored Athenian democracy, taking a large view of the question, resolved to pay the debt out of the public money, and did so as soon as an exhausted treasury and impoverished country allowed it. Let, then, the Act of Assembly and the contract of the commissioners, and the active and tacit sanction of nearly all the people, and the judgment of the Supreme Court — let all this be called a usurpation, as against those who did not assent: still they are bound by it. As an act of the society to which they belong, they are bound by it to those who have thus treated with the society, and according to the extent and terms of the authority *237 publicly assumed to be rested and taken. They cannot partake of the benefits of .society, without bearing their share of its risks, burdens, and mistakes. For its social interests, the society to which they belonged has acted as well as it knew how, and all must bear the consequences of its mistakes, as they would have had the advantage of a contrary result. This is an essential incident of society, and of human nature. Man is made for society, and is morally bound to associate. He cannot otherwise fulfil his destiny. He is therefore bound to give form to society, that .is to institute government and live under it. He cannot reject government because its form does not please him. The best government that a given association of men can make, must be legitimate for them and for the time. Even .those who object to it must bear with others the consequences of its defects. This is a natural necessity. In the present case, this people, with as good a form of government as they know how to make, have brought upon themselves this evil, and common justice forbids them to throw it over upon others. They cannot disown their government and reject its authority, because of a mistake. This would be the worst of all remedies. Is property more valuable than government, and peace, and order ? Property, without government, is good for nothing; because property is never cared for, or sought after, or valued when acquired, when it is unsecured by social order and the saeredness of social forms. In savage life, and in lawless societies, property is valueless, because it has not these securities. According to these forms, as society has honestly understood them, and under their highest sanction, these contracts stand approved as valid contracts of the county. To repudiate them now is to cast down the very safeguards of liberty and property. It is to fly from evils that we know and can measure, to those which the future only can reveal. When, after the battle of Arginusas, the victorious generals, with barbarous neglect, left their dead uncared for, and abandoned their yet living comrades to perish, with their disabled ships, the Athenian democracy departed from their accustomed judicial forms, in order to hasten their condemnation; but they afterwards sorely repented of it, and Kallixenus, the senator who led them astray,driven into exile and detested by all, died of hunger. And suppose that, on a very refined and scientific argument, and by the aid of some of the essential principles of human nature, revealed to scientific men by the study of political ethics and natural law, it might be logically demonstrated that the law in question is unconstitutional — is the defence thereby made out? Very far from it. A people does not act upon these principles only — perhaps not at all on some of them — but on the faith that is in them, and upon the common customs and principles that constitute the atmosphere of their social life. Locke’s Carolina Con *238 stitution, and the French Constitutions of the Revolution, and the various systems of socialism, were the product of these scientific principles, and they perished as soon as applied to the life of the people. Plato’s Republic, and More’s Utopia, and Harrington’s Oceana, never were found worthy of a trial. The scientific theory that would inaugurate only men of what is called science, into power, and give them all authority, is a most slavish one; for it would leave nothing to the free and spontaneous growth of man. The kind of scientific men that we need for such matters, is honest and generous-minded men — not living on theories and abstractions, but having an earnest and intelligent comprehension of the actual life of the people, with its needs, and wishes', and faith; and knowing how to aid them in their social aspirations. We want men with knowledge — not so much of what human nature ought to he and is to he, as what it now is, to point us to our present duty. And if people do not follow the dictates of science in mahing their engagements, they can hardly justify themselves in resorting to science as a test of the validity of their engagements, and as a means to get clear of them at the expense of others. If people follow out their ordinary principles in making their engagements, and then trust to logic and science to aid the suggestions of selfishness, that their engagements are not binding, they surrender their conscience to the keeping of others whom they cannot entirely understand. When people shall have discovered the exact boundary between engagements that are peculiarly social, and those which are peculiarly individual, then possibly they may be morally entitled to declare that they and their governor, and legislature, and judiciary, have violated their constitution in making such contracts. But even then they cannot honestly retrace their steps, without making restitution to those whom they have misled. We cannot doubt that these bonds are legally obligatory on the county of Allegheny, to the extent expressed in the opinion delivered by Brother Woodward. The opinions here expressed must be taken as exclusively my own — for I do not understand them as being adopted by any of my brethren. They are necessary (or at least very important) to my mind, in coming to the conclusions expressed in our judgment, and therefore I am constrained to express them. The respondents’ counsel subsequently moved to set aside the judgment in favour of the relator, and to enter judgment in favour of the respondents, on the ground that the defects alleged in the defendants’ pleas were matters of form only, and not of substance, and, therefore, cured by a general demurrer. *239 Upon this motion the following opinion was delivered by Woodward, J. — This motion, made at the very last moment of our late term at Pittsburgh, shall be disposed of in the first hour of our next session. An alternative mandamus having been issued to the commissioners of Allegheny county, they made a return thereto which came before us upon a general demurrer by the relator. After argument and full consideration, we rendered judgment for the plaintiff in the demurrer, and filed our opinion on the 11th day of November last. We continued in session at Pittsburgh until the 29th of November. The motion, too long delayed, if proper at any time, is founded upon a notion .that we ought to have treated the demurrer as a special demurrer, to cfBatain specified parts of the return; that the judgment thereon, if against the defendants,' should have been respondeant ouster, and that a judgment for plaintiff, on general demurrer, is not applicable to those parts of the return. That this is a misconception can be readily shown. The return was one thing. It consisted of numerous allegations, suggestions, and innuendoes, all massed together without orderly parts or proportions. It had neither sections, pleas, nor any adequate arrangement. In that state it was presented on the record, as the answer of the commissioners to the alternative mandamus. Though composed of many allegations, they all constituted one document — the entire answer of the commissioners. The relator demurred to it. He said it was not in law a sufficient. return. We held that it was not, and entered judgment aceordingly. . But, for the sake of a more intelligible analysis of the return than could otherwise be made, we divided it into sections, heads, or pleas, and numbered them from one to seven. This operation, performed by ourselves and for our own convenience, is what probably suggested to the counsel’s mind the idea that some of his pleas, as they are now called, ought to have been separate and independent grounds of judgment. They were not independent grounds, either of defence or of judgment. They were parts of one entire document, which was considered as a whole, and as a whole was condemned. The legal effect of the general demurrer to the return was, that the relator admitted all the facts that were well pleaded in the return. To ascertain what these facts were, we were led to speak of the certainty and precision required in returns to mandamus, and were obliged to classify the facts, that we might see Avhat of them were sufficiently pleaded, and what were not. We found allegations of fact that were irrelevant, ambiguous, argumentative, and hypothetical, and we set them aside as not admitted by the demurrer, *240 nor, therefore, drawn into judgment. We rendered no judgment on them as specific grounds of defence. We simply put them out of the case. Possibly, had they been specific grounds of judgment, they would have prevailed as against a general demurrer, but they were not. We entered no judgment, as on special demurrers, to these parts of the return. ' What we rendered judgment on, was the return, as a whole; and the criticisms of its parts, were for the purpose of placing before our minds, in a distinct light, the facts we were to consider as admitted. We found some facts well pleaded that were relevant. We gave the defendants the full benefit of them. They were the only pertinent facts in the record, which we could regard as admitted by the demurrer ; and if this was not said in express terms, it was plainly intimated several times in the opinion filed. Indeed, this is so necessarily the fair inference from the whole opinion, that every candid reader will be sure to make it. Having compelled ourselves to go, step by step, through the return, picking out from a confused mass of allegations, all that was relevant and material, and having demonstrated that what was found of this sort was an insufficient defence, we rendered judgment for the plaintiff, as it was our sworn duty to do. This is enough to say on refusing this motion; more than we would have allowed ourselves to say, but for the respect we entertain for the citizens of a great county, who are apparently represented in this proceeding. We confess ourselves desirous that they should understand clearly the grounds of our judgment. That the difficulty of doing so is not intrinsic in the subject itself, will appear from these few propositions. 1st. The commissioners were required by law to make a sufficient return to the alternative mandamus. 2d. They made a return to which the relator demurred. 8d. The demurrer admitted all the facts set forth in the return with sufficient precision, that were material and relevant facts. Hence, there was no occasion for a jury to ascertain the facts. 4th. The judgment of the court was, that the return was insufficient ; the reasons whereof are fully set forth in the opinion filed 11th November 1858, and, therefore, under the statute relating to mandamus, the judgment was necessarily for the plaintiffs. The motion is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6230759. Public record. Not legal advice.