Booth & Flinn, Ltd. v. Miller , 237 Pa. 297 ( 1912 )

Opinion by

Mr. Justice Mestrezat,

This was an amicable action of assumpsit to recover the price of eighty-six bonds issued by the Western Pennsylvania Hospital and secured by a mortgage on its property.

The hospital is a charitable corporation of this State created and existing under an act of the general assembly approved March 18, 1848, P. L. 218, and its supplements, and the decree of the Court of Common Pleas No. 2 of Allegheny County entered in accordance with the provisions of the act of assembly approved May 1,1907, P. L. 140, which decree provides, inter alia, that the corporation “may hold and enjoy real, personal, and mixed estate of any kind whatsoever, and may sell, convey, lease and encumber the same for the use, objects and benefits of the said institution.” On December 1, 1910, the hospital issued and delivered to the Commonwealth Trust Company, trustees, three hundred bonds of the denomination of one thousand dollars each, payable in three years thereafter, and as security for said bonds executed and delivered to the trustee a mortgage covering its real estate in the City of Pittsburgh. By an act of the general assembly approved May 13,1909, P. L. 835, entitled “An Act making an appropriation to the Western Pennsylvania Hospital,” the State appropriated to the hospital, for the purpose of assisting in the completion of its new hospital plant upon its premises in Pittsburgh, the sum of one hundred thousand dollars, the act, in its third section, providing, inter alia, “that the amount so appropriated as aforesaid, be and the same is hereby made a non-interest bearing lien on the said premises for the use of the Commonwealth of Pennsylvania.” The act further provides that no part of the appropriation shall be available until the board of managers shall certify to the Auditor General that exclusive of State aid, the sum of $325,000 has been expended on the building, nor until they shall file with the Auditor General a written obligation agreeing that the sum appropriated shall be refunded to the State whenever the building shall be converted to private use, conducted for private gain, or be abandoned or sold or transferred to any person for any use other than that authorized by the certificate of incorporation. The certificate and obligation were filed in April, 1910. Prior to December 1, 1910, the hospital received from the State a portion of the appropriation, and prior to July 29, 1911, received the balance thereof, and expended the moneys so received for the purposes for which it was appropriated.

The plaintiff being the owner of eighty-six of the said mortgage bonds of the hospital agreed to sell them to the defendant at par and accrued interest, if the bonds were a first lien on the mortgage premises. The defendant refused to accept and pay for the bonds, and this action was brought to enforce payment.

The defendant denies that the bonds are a first lien on the property of the hospital because of the alleged prior lien created in favor of the Commonwealth by reason of the provisions of the Act of 1909, making the appropriation. The learned judge of the court below held that the part of the appropriation act creating the lien was unconstitutional, because (a) it offends against Section 3, Article III, of the Constitution, which provides that “no bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title,” and (b) that it offends against Section 7, Article III, of the Constitution, which provides that “the general assembly shall not pass any local or special law authorizing the creation, extension, or impairing of liens.” The court thereupon entered judgment for the plaintiff from which the defendant has taken this appeal.

We do not agree with the learned court below that the Act of May 13, 1909, P. L. 835, offends Article III, Section 3 or Section 7, of the Constitution. The act cannot be successfully attacked because it contains more than one subject, or that the subject is not clearly expressed in the title. The subject of the act is the appropriation of a certain sum to a charitable institution. The act had in view a single purpose and that was the appropriation of the money for the charity administered by the hospital. It is claimed, however, that the provisions for the security and the lien constitute additional subjects which invalidate the act, but we are not favorably impressed with this position. The only subject of the act is the appropriation made to the designated beneficiary; the security and lien were not separate and distinct subjects but simply provisions to compel the hospital to apply the appropriation to the charitable purpose, and they are naturally and properly connected with the main subject. These provisions were not subjects upon which the assembly was legislating, but were intended to and are related to and a part of the one general subject, the appropriation, with which the legislature was dealing in the act. If this be not true, it follows that the legislature must pass three acts instead of one act in making the appropriation and in preventing it from being diverted to a different use. It would be required to pass an act donating the money, another act providing for the statement and the obligation, and another act providing for the lien. The purpose of the section in question was, as we have frequently said, to strike down omnibus bills which unite in the same law subjects entirely foreign to and not connected with each other, thereby giving no notice of the greater part of the contents of the bill and affording opportunity for fraud and deception. It is, however, no infringement of the section if there are several provisions in the bill, provided they are connected with and germane to the one general subject of the legislation. It is sufficient if they relate to and are a means of carrying out the one general purpose of the act. As said by Sterrett, C. J., in Kelley v. Mayberry Township, 154 Pa. 440, 449, instead of containing more than one subject, the provisions are cognate, each, respectively, relating not to a separate and independent subject of legislation, but to branches of the same gen-, eral subject.

The title, like the act itself, we think is sufficient. It is not misleading, and gives notice of everything contained in the act. In making the appropriation there is no presumption that the State will not designate the purpose for which it is to be used and protect itself against the fund being diverted to other purposes. The right to do so is unquestioned, and the title disclosing the appropriation is sufficient notice to interested parties to put them upon inquiry which will result in a disclosure of the terms and conditions on which the appropriation was made. If, therefore, any person was interested in the bill, he was bound to know that germane to the subject expressed in the title was the purpose for which the appropriation was to be used as well as the protection against its misuse. We have repeatedly said that the title need not embody all the distinct provisions of the bill, nor serve as an index or digest of its contents, but that it is sufficient if the title fairly gives notice of the real subject of the bill, so as reasonably to lead to an inquiry into what is contained in the body of the bill. The title to the Act of 1909 was, therefore, not required to embrace, in addition to the one general subject, an index to the several provisions for carrying out the purpose of the appropriation. It was sufficient to put legislators and other interested parties on notice which would have led to an inquiry into the contents of the bill. Nothing more is required.

We are of the opinion that Section 7, of Article III, of the Constitution, prohibiting the enactment of any local or special law authorizing the creation, extension or impairing of liens did not prevent the passage of the Act of 1909, nor invalidate any of its provisions. Mr. Buckalew, an eminent lawyer and a leading member of the constitutional convention says in his work on the Constitution that “this clause can hardly apply to liens of the State.” It is a maxim of the common law that the King is not bound by any statute, if he be not expressly named to be so bound.. It is inferred, prima facie, that the law made by the Crown, with the assent of the Lords and Commons, is made for subjects and not for the Crown: per Alderson, B. in Attorney General v. Donaldson, 10 M. & W. 117, 122. The same doctrine applies to the American States. In Commonwealth v. Baldwin, 1 Watts 54, Chief Justice Gibson delivering the opinion said, inter alia: “In a monarchy the exception of the sovereign from the operation of statutes in which he is not named, is founded in prerogative; and hence it is supposed that no such exemption can be claimed for a sovereign constituted of the people in their collective capacity. It is certain that so much of the prerogative as appertained to the king by virtue of his dignity is excluded by the nature of our government, which possesses none of the attributes of royalty; but so much of it as belonged to him in the capacity of parens patriae, or universal trustee, enters as much into our political compact, as it does into the principles of the British constitution.......Without pretending to fix its limits in all cases, it may be safely asserted that this prerogative is a principle of our government and a part of the law of the land.” Mr. Justice Lewis speaking for the court in Jones v. Tatham, 20 Pa. 398, said (p. 411) : “Words of a statute applying to private rights do not affect those of the state.......The general business of the legislative power is to establish laws for individuáis^ not for the sovereign; and, when the rights of the commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied.” Mr. Justice Strong delivering the opinion in Dollar Savings Bank v. United States, 86 U. S. (19 Wallace) 227, after saying that the king was not bound by any act of Parliament unless he be named therein by special and particular words, continued: “The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different states and practically in the federal courts.......The reason of the rule which denies to others the use of any other than the Statutory remedy is wanting, therefore, in applicability to the government, and the rule itself must not be extended beyond its reason.”

The established rules of construction applicable to statutes apply also in the construction of a constitution: Nicholson v. Thompson, 5 Bob. (La.) 367; People v. May, 3 Mich. 598; People v. Potter, 47 N. Y. 375. There is nothing in Section 7, of Article III, that shows that the framers of the Constitution intended that this section should apply to legislation making appropriations by the State in separate acts for charitable or educational purposes, as required by Section 15 of the . same article, and, therefore, it falls within the general rule announced in the above cases that such legislation is exempt from the constitutional prohibition against local or special legislation. It has been the uniform practice of the general assembly to enact legislation authorizing the Commonwealth by such methods to enforce its claims, to collect its debts, and create and enforce liens. It is true that most of these acts are general, but nevertheless they show that in such legislation the Commonwealth does not stand on the same footing as a private suitor, but may protect itself as it deems best when dealing with its debtor, or may impose terms when it devotes its funds to charitable or educational purposes. In the light of such legislation and the uniform practice of enacting similar legislation on such subjects before and since the adoption of the present Constitution we cannot conclude that the constitutional provision was intended to apply to the State in making appropriations of this character. During the very session at which the act under consideration was passed the legislature in several acts making appropriations to charitable and educational institutions adhered to the same practice, and inserted provisions' stipulating the use to which the money was to be applied and reserving a non-interest bearing lien on the property of the institution. Mr. Justice Agnew in Cronise v. Cronise, 54 Pa. 255, speaking of the mooted power of the legislature to grant divorces under the Constitution of 1790 said (p. 261): “The Constitution of 1790 was framed in view of this practice. The continued exercise of the power after the adoption of the Constitution of 1790 cannot be accounted for, except on the ground that all men, learned and unlearned, believed it to be a legitimate exercise of the legislative power. This belief is further strengthened by the fact that no judicial decision has been made against it. Communis error facit jus would be sufficient to support it but it stands upon the higher ground of contemporaneous and continued construction by the people of their own instrument.” While we are not bound by the legislative interpretation of the Constitution, yet it is entitled to weight, and strengthens our conviction that the framers of the Constitution did not intend by Section 7, of Article III, to deprive the Commonwealth of its right to protect itself against the diversion of moneys appropriated to charitable purposes.

The' State when acting in its sovereign capacity occupies a position entirely different and superior to that of the citizen. It cannot be sued without its consent. The statute of limitations, without it is expressly so declared, cannot be invoked to defeat its claim as a creditor. It takes precedence over other creditors. It may forego its rights as a sovereign power and place itself on the same footing as one of its citizens, but unless the statutory language affecting the subject so declares it will not be presumed. The State cannot be deprived of its rights as a sovereign by inference, it must be done by appropriate constitutional or legislative action.

McLeod v. Central Normal School Association, 152 Pa. 575, decided since the adoption of the present Constitution, recognizes the validity of such legislation. There the general assembly appropriated money and specified the particular educational purpose to which it was to be applied with a proviso for a lien similar to that in the act under consideration. While the constitutionality of the act in that case was not attacked,the court approved'the provision imposing the lien and recognized its validity. Mr. Justice Clark; delivering the opinion, after saying that the act established the relation of debtor and creditor, proceeds (p. 583) : “The object and aim of all the legislation since 1857 has been to give the State standing as a creditor against them (Normal Schools) in order that, in the event of any such attempted diversion, the State might lay its hand upon the property for its own indemnification.” The same purpose is manifest in the act under consideration. It appropriates the money for the specific charitable use and establishes the relation of debtor and creditor between the hospital and the State so that the purpose of the appropriation may be made effective and the fund cannot be diverted to any other purpose. It was not an absolute and unconditional gift, but one conditioned that the hospital, should continue to use the money for the designated purpose or it should be repaid to the State. The hospital takes the appropriation cum onere, and when it fails to use the fund for the purpose, it, as a debtor, must repay the money to the creditor.

If, however, the contention of the appellee be correct, that the provision for a lien on the premises of the hospital is unconstitutional and void, we see no escape from the conclusion that the whole act must fall and that the hospital has no right to any part of the appropriation. The first section of the act makes the appropriation, the second section prevents the payment of any part of the fund until the managers of the hospital have certified that exclusive of State aid three hundred and twenty-five thousand dollars have been expended on the building, and Section 3 provides that no part of the appropriation shall be available until the managers give an obligation to the State that the building shall not be abandoned or converted to a private úse, and providing that the appropriation shall be a non-interest bearing lien on the premises. These are dependent provisions, and are in no sense separate and independent of each other. It cannot be doubted that the legislature would not have made the appropriation had it not been for the protection against the diversion of the fund to other than charitable purposes. The object of the legislation as disclosed by its terms was to appropriate the fund, not to private uses or purposes but to the charity represented by the hospital. This manifestly appears from the condition that the appropriation shall not be available until the sum of three hundred and twenty-five thousand dollars had been expended on the building, and the provision in the act against the diversion of the fund to any other purpose, than that authorized by the hospital’s charter. The “compensation for or the inducement to” make the appropriation was the provision that it should be applied to no other purpose than the charity represented by the hospital which was secured by the obligation and the lien. The several provisions including the one creating the lien are, therefore, dependent and connected, and show that the legislature intended them to be read together as a whole, and that if the provisions protecting the fund against diversion could not be carried into effect, the hospital should not have the appropriation. If, therefore, the provision for the lien falls, the appropriation, falls. This is the settled rule of statutory interpretation applicable in such cases: 1 Lewis’ Sutherland on Stat. Const. Sec. 296. In Rothermel v. Meyerle, 136 Pa. 250, Mr. Justice Clark speaking for the court says (p. 265): “If the part (of the statute) which is unconstitutional in its operation, is independent of, and readily separable from that which is constitutional, so that the latter may stand by itself, as the reasonable and proper expression of the legislative will, it may be sustained as such; but, if the part which is void is vital to the whole, or the other provisions are so dependent upon it, and so connected with it, that it may be presumed the legislature would not have passed one without the other, the whole statute is void.” Chief Justice Shaw, delivering the opinion in Warren v. Mayor of Charlestown, 68 Mass. (2 Gray 81) 99, says: “If they (the parts of the act) are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are constitutional, all the provisions which are thus dependent conditional or connected must fall with them.” This is quoted and approved by Chief Justice Fuller delivering the opinion of the Supreme Court of the United States in Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 635. Marshall, J., delivering the opinion in Gilbert Arnold Land Company v. Superior, 91 Wis. 353, 357, says: “If the void part of the act is the compensation for or the inducement to the valid portion, so that, looking at the whole act, it is reasonably clear that the legislative body would not have enacted the valid portion alone, then the whole act will be held inoperative and void.”

It follows that Article III, Section 7, has no application to the Act of 1909, and that therefore the provision in the act creating a lien for the money appropriated is a valid exercise of the legislative power and the lien thus created is effective. This lien is prior to the xnortgage given to secxxre the bonds which are the sxxbject of this litigation, and, therefore, in accordaxxce with the stipulation of the parties, the court below should have entered judgment for the defendant.

The judgment of the coxxrt below is reversed and judgment is now entered for the defendant.