Taggart v. Commonwealth ex rel. Attorney-General , 1883 Pa. LEXIS 59 ( 1883 )

Chief Justice Mercur

delivered the opinion of the court, February 19th 1883.

The first section of the Act of 2d February 1854 extended the boundaries of the city of Philadelphia so as “ to embrace” the whole of the territory of the county of Philadelphia. While tiie boundaries of the city were thereby so enlarged as to make it co-extensive in territory with the county; yet the existing entirety of the latter was not destroyed. On the contrary, section 41 of the Act, inter alia, declares “ the county of Philaadelphia shall continue to be one of the counties of this Commonwealth.” Neither subsequent legislation nor the Constitution of 1874 has destroyed the existence of the county either in fact or in name.

The 12th section of the Act of 1854 provided for the election of a city controller at the time designated for the election of other municipal officers. After imposing on him certain specific duties, it declares “ he shall perform all the duties now enjoined by law on the county auditors.”

Under the name of city controller an officer was exercising the powers and performing the duties of county auditors when the convention to amend the Constitution met in 1S72. At that time an officer designated controller, was exercising like powers and performing like duties in the county of Allegheny.

In determining what class of officials should be designated county officers, the convention manifestly had in view those whose duties were coextensive with the boundaries of the county, and the character of the duties which they performed, rather than the names by which they were called. The purpose was to deal with duties, using names so far only as to indicate the objects to be attained. Hence art. XIV. § 1, declares “ county officers shall consist of shei'iffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys and such others as may from time to time be established by law.”

While this language does not, in express terms, order that the several officers named shall be elected, yet it does expressly declare when officers do exist who bear those official titles they shall be county officers. The fair import of the language “ auditors or controllers,” in the connection it is used with other official titles, admits of one construction only. It assumes that each substantially exercises the same powers and performs the same duties, and when those powers and duties are coextensive with a county, by whichever name they may be designated, they shall be county officers.

We must not forget that the Constitution recognises the fact that controllers then existed and performed the duties of county auditors. In seeking for the true interpretation of the reference to the officers in the alternative, we must give a reasonable and natural effect to the language used, so as to carry out its manifest purpose. Thus reading it, we conclude it fairly imports, whether the duties of auditors appertaining to a whole county be performed by one called a controller or by those called auditors, in either case the organic law declares them to be county officers.

Suppose, however, the construction which we give to the words “ auditors or controllers” was donbtful, the section proceeds to designate as county officers “ such others as may,'from time to time, be established by law.” This clearly gives to the law-making power full authority to add to and increase the number of county officers. If the words “ auditors or controllers ” did not make controllers thereafter elected in Philadelphia county officers, legislative authority under the clause cited is most ample to so make them. The form of law by which this power may be exercised rests in the sound discretion of the legislative branch of the government. It may be done either by the creation of a new officer whose powers and duties extend over the whole county, or by so designating, an existing officer of like powers and duties. Hence, in the exercise of legislative power expressly given by tbe constitution, section 17 of the Act of 31st March 1876, P. L. 13, declares “in all cases where a .city containing over three hundred thousand inhabitants is coextensive in boundaries with the county, all of the officers known therein as city treasurer, city controller, city commissioners, shall severally be regarded as county officers......and be subject to the same penalties as if they had each been elected or appointed as county officers, and had been designated as such.”

This section was intended to apply and does apply to the city of Philadelphia, and to all the officials named in the section who had theretofore been known as city officers. It recognizes the fact that prior thereto, an officer known as city controller, had performed in this city, the duties of a county officer: but it substantially declares that any such officer thereafter elected, shall be regarded as a county officer with like effect as if expressly designated as such, when elected. Why then shall he not be held and be adjudged in law and in fact, to be a county officer?

It cannot successfully be contended that the title to this Act of 1876 contains more than one general subject, or that it is not expressed with sufficient clearness therein. It is entitled “ An Act to carry into effect section five of article fourteenth of the Constitution relative to the salaries of county officers, and the payment of fees; received by them into the state or county treasury, in counties containing over one hundred and fifty thousand inhabitants.” The title of the Act is an epitome of the section of the Constitution to which it refers. The designation of those officials who should be considered county officers was a natural corollary of the title, and proper to give due effect to that part of the constitution which the Act proposed to enforce. All the provisions of the Act relate, and are cognate, to the purpose stated in the title. This is complying with the requirement of the constitution as to the sufficiency of the title : Blood v. Mercelliott, 3 P. F. Smith 391; Commonwealth v. Green, 8 Id. 226; Yeager v. Weaver, 14 Id. 425; Allegheny County Home’s Appeal, 27 Id. 77; State Line & Juniata Railroad Co.’s Appeal, Id. 429; Craig v. First Presbyterian Church, 7 Norris 42.

This Act of 1876 which declares the controller of Philadelphia shall be considered a county officer, fixes his salary at a specific sum, and declares it shall be in lien of all moneys, fees and perquisites. Without this Act no provision is made for his payment.

We have not overlooked the facts, so ably argued, .that the Act of 11th June 1879, P. L. 130, refers to the officer as “ the city controller,’’ and that several ordinances passed by councils since the Act of 1876 impose duties on him as city controller.

Whether all these duties and obligations are lawfully imposed on the controller, as well as to what extent a county officer maybe subjected to the authority of the eity councils, are questions not before us, and we express no opinion thereon. We merely hold that neither the reference in the Act of 1879 nor the ordinances of the city are sufficient to change the legal status of one otherwise a county officer. They cannot divest the name of county officer stamped on the controller by the Constitution, and reaffirmed by express legislative authority.

The Constitution declares the general election shall be held in November, and that all elections for city officers shall be held in February. It further declares that county officers shall le elected at the general election. Referring to contemporaneous interpretation- we find that ever since the adoption of the Constitution, the controller in Philadelphia has béen elected at the general election in November. The recognition that he is a county officer has thus been in harmony with the construction which we put on the Constitution and the Act of 1876. They both declare him to be a county officer. lie is elected as such. The statute provides for the fixing of his salary as a county officer. As such he receives his compensation. By that name and title he must stand.

It follows that the councils were not authorized, to appoint any person to fill the vacancy caused by the resignation of the previous incumbent, and the plaintiff in error has no title to the office. The Act of 15th May 1874, P. L. 205, gives the right of nomination to the Governor, and with the consent of the Senate, the power of appointment. The learned court was therefore right in entering judgment of ouster.

Judgment affirmed. ■

Gordon, J., dissented.