Commonwealth v. Brown , 210 Pa. 29 ( 1904 )

Opinion by

Mb,. Chief Justice Mitchell,

The Act of April 4, 1870, P. L. 834, is entitled “An act relative to contracts by county commissioners in certain counties of this commonwealth,” and is a local and special act applying only to eleven counties named. The Act of April 19, 1895, P. L. 38, is entitled “ An act to regulate the erection of county buildings,” and is a general act applying in terms to the whole state. The first question in this case is whether the prior act is repealed by the later. ■

Repeal is wholly a question of legislative intent. Where, as here, no such intent is expressed but must be found, if at all, in necessary inference, certain general principles or presumptions have been established as aids in the discovery of the actual intent. The one with which we are concerned is that a local is not repealed by a general' act'on the same subject, even with conflicting provisions. A local law presumably was passed to meet local and exceptional conditions, and a general statute to meet general conditions does not imply that the local conditions have changed, or that the législature intends to change the law which it had previously deemed necessary or appropriate to such conditions. • “ Rarely, if ever, does a case arise where -it can' justly be held that a general statute repeals a local statute by mere implication: ” Malloy v. Com. ex rel. Reinhard, 115 Pa. 25; Com. v. P. & E. R. R. Co., 164 Pa. 252, 261; Com. ex rel. v. Summerville, 204 Pa. 300.

This principle has been so repeatedly declared that it would not be necessary to reiterate it here, except to recall its application in connection with the claim of the appellant that a different rule should prevail in the present case. The argument is very clearly expressed in the following quotation from appellant’s supplementary paper-boolc : “ It will bé conceded that the parties are squarely at issue on the question whether or not, since the adoption of the new constitution, our courts, in determining that a general Act of Assembly regulating the affairs of counties, .boroughs or townships, does or does not repeal a special or local act on the same subject passed prior to 1874, are to be guided by precisely the same rules of construction theretofore existing, or whether such rules have, since that date, been modified and changed ? ”

On this point a number of cases have been cited by both parties, and as it is likely to arise frequently in the future it is desirable to notice briefly the decisions most directly bearing on it, with a view to a definitive settlement of the rule.

Appellant relies largely on Com. ex rel. v. Macferron, 152 Pa. 244; Quinn v. Cumberland Co., 162 Pa. 55 ; Chalfant v. Edwards, 176 Pa. 67, and particularly Com. ex rel. v. Wunch, 167 Pa. 186.

Com. ex rel. v. Macferron and Quinn v. Cumberland Co. were decided on the legislative intent in the acts on classification of municipalities. In the former it was said that the rule as to local and general acts was not questioned, but “ the nature and purpose of the classification acts and the laws enacted for the separate classes are of a character to exclude the operation of the rule. They are intended to revise the laws relating to municipal affairs so as to reduce all former types and forms of municipal government, almost as numerous as the cities in the state, to three, one for each class; and to substitute the class form in lieu of the previously existing form in every city of the class.”

Of Com. ex rel. v. Wunch it might be enough to say that it has been overruled as having overlooked the limited scope of the act there in question, and the saving clause of another to which it was in effect only a supplement: Com. ex rel. v. Couch, 209 Pa. 354. The decision, however, was founded on the same principle as Com. ex rel. v. Macferron, but an improvident expression in the brief per curiam opinion has led appellant to give the case much too wide a scope. “ Since the adoption of the present constitution,” said Justice Williams, “ the legislature has sought to bring about uniformity in the administration of the affairs of counties and townships as well as those of cities and boroughs. The constitution requires this, and we have felt constrained to interpret statutes relating to these subjects in the light of the constitutional requirements.” This was an inadvertent slip in expression. The constitution makes no requirement of uniformity, and the courts have neither desire nor authority to bring about such a result except in obedience to a statutory expression of the legislative intent. What the constitution does require as to legislation upon the affairs of counties, municipalities, etc., under sec. 7 of article 3, is that it shall not be local or special, but general. Uniformity is not in itself a requirement, but one of the tests, judicially established, of the question whether an act is local, special or general, and it is nothing more : Stegmaier v. Jones, 203 Pa. 47.

What these cases decide and are authority for, is that as the legislative intent in the classification of municipalities is apparent, to make a uniform system and framework of government, public officers, powers and duties in each class, the presumption is that as to such matters, local acts must give way to the general act of classification, wherever they conflict.

This modification of the rule, however, must not be pushed too far, but confined to the subjects to which the legislative intent clearly applies. The constitution itself does not compel uniformity by the repeal of local laws, even in the article prohibiting local legislation. It was held in Evans v. Phillipi 117 Pa. 226, that “ the constitution in its prohibitions of special legislation is prospective only, and does not effect a repeal of local statutes with inconsistent provisions in force at the time of its adoption; nor was its intent and meaning that all future legislation should be conditional on the repeal of such local laws.” Even in Com. ex rel. v. Macferron, which perhaps goes farthest in that direction, the decision is carefully limited and it is held that classification of cities is for the purpose of regulating “ the exercise of certain corporate powers, and the number, character, powers and duties of certain corporate officers ” and that the legislative intent is equally plain “ to leave each city in the full enjoyment of all its powers, rights and privileges not superseded by the uniform scheme or plan of municipal government provided for the class into which such city may come. As was held in Com. ex rel. v. Wyman, 137 Pa. 508 the transition of. a city from one class to another works such change in its government as the law makes necessary to adjust it to the class into which it goes. In other respects it works no change, but the city brings all its municipal belongings with it into the new class.”

Chalfant v. Edwards, supra, and McCleary v. Allegheny Co., 163 Pa. 578, are based on a similar modification of the rule that where as said by our Brother Dean in the latter case, the general act is in harmony with the constitution and clearly passed to carry it into effect the local must give way.

In Malloy v. Com. ex rel., 115 Pa. 25, it was said, “the constitution upon many subjects prohibits local or special legislation, but it changes no rule relative to the repeal, by legislation, of local laws existing when it was adopted.” No subsequent case is in conflict with the principle of this decision.

The result of the cases may be summed up as follows :

First, the rule that a general statute does not repeal by implication a local act with different or inconsistent provisions, is still the prevailing rule.

Secondly, but the rule being founded on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent.

Thirdly, where the clear general intent of the legislature is to establish a uniform and mandatory system as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed.

Fourthly, where an act is passed to carry into effect a mandatory general provision of the constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.

Regarding the acts of 1870 and 1895 in the light of these rules it is clear that the former is not repealed unless there is evidence in the language of the latter that such was the intent. The act of 1870 is a local act, and could not now be passed in view of the prohibitions in section 7 of article 3. But the constitution did not repeal it, nor did it command the legislature to do so. The act of 1895 was not passed to carry out any constitutional mandate, and its effect therefore must be limited by the rule as to local and general acts, unless its language and purpose indicate an intent to establish a uniformity on the subject of its provisions that shall be compulsory even upon local and special acts.

We do not find any sufficient ground for the inference of such intent. The scope of the two acts is not the same nor do either the titles or the language of the two indicate that the legislature had the same subject in contemplation. The title of the act of 1870 relates to contracts by county commissioners and the act is primarily a limitation on the commissioners’ power. Prior to its passage, and in counties to which it did not apply, the commissioners being duly authorized by two grand juries and the quarter sessions under the act of 1884 to build a courthouse or county building, made the contract at their own discretion as to size, style, cost, etc., without- reference to the approval of any other official: Mahon v. Luzerne Co., 197 Pa. 1, 18. But by the provisions of the act of 1870, before .making any contract for the erection of new buildings, or bridges, or for alteration or addition thereto, the commissioners' are required to take certain proceedings, among which is obtaining the approval of one of the judges of the common pleas.' It is a carefully drawn act covering the subject with much particularity and detail. There may have been a reason why the commissioners in the counties named should be deprived of some of the powers exercised by commissioners in other counties. Whatever the reasons may have been, we must assume that special and local conditions required this special and local change in the law, and there is nothing to show that the legislature regarded these conditions as having ceased in those counties or having newly arisen in the rest of the state.

The act of 1895, on the other hand, is a single section of eleven lines, in general terms, with little detail, and of narrower scope. Its provisions are confined to “ the erection of a court house, -jail or other county building.” The building of bridges and of alterations or additions to county buildings, is left under the act of 1870 or under the general powers of commissioners in other counties to which that act does not extend. The subjects of the two acts, therefore, though closely related, are not identical, and it does not seem reasonable to suppose that the legislature regarded them as the same’and meant the later act to repeal part of the earlier one, leaving so important a portion of the subject admittedly untouched.

We are of -opinion, therefore, that the act of 1870 is not repealed by the act of 1895.

' The second question raised, by the assignments of error, whether the provisions of the act of 1870 as to advertisement, etc., were complied with, is so satisfactorily answered in the opinion o£ tlie Superior Court that we need not attempt to add anything to it.

Judgment affirmed.