Commonwealth Ex Rel. Schnader v. Liveright , 308 Pa. 35 ( 1927 )

Argued March 11, 1927. Appellants, the secretary of welfare, the auditor general, and the state treasurer, appeal from the award of a peremptory mandamus, directing them "to perform the duties imposed . . . . . . by the act" of December 28, 1931, P. L. 1503. The act is also known as Act 7-E or popularly the Talbot Bill. The question involved is the constitutionality of this act. It was sustained by the court below, and this appeal followed.

The governor, by proclamation, duly convened the legislature in special session, and it passed the act now in question. Both the first and supplemental proclamations of the governor will be found in the reporter's notes, as will also the act of assembly. There are many constitutional questions involved in this appeal, which will be disposed of in their order. In so doing, it must be borne in mind that: "In determining whether an act of assembly is unconstitutional, . . . . . . it should not be so held unless it is clearly, strongly and imperatively prohibited. 'If the act is within the scope of legislative power, it must stand, and we are bound to make it stand if it will upon any intendment. . . . . . Nothing but a clear violation of the Constitution, — a clear usurpation of power prohibited, — will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void': P. R. R. Co. v. Riblet, 66 Pa. 164,169. Every presumption should be indulged in its favor and one who claims an act is unconstitutional must prove his case beyond doubt: Collins v. Lewis, 276 Pa. 435, 438; Sinking Fund Cases, 99 U.S. 700; Mugler v. Kansas, 123 U.S. 623, 661": Busser et al. v. Snyder et al., 282 Pa. 440, 449. "It is the duty of every judge . . . . . . to search for a construction which will support the legislative interpretation of the Constitution, and an act can never properly be declared void unless this is found to be impossible": Com. v. Hyneman,242 Pa. 244, 264. A statute will be declared unconstitutional only "when it violates the Constitution clearly, palpably, plainly; and in such a manner as to leave no doubt or hesitation" in the mind of the court: Sharpless v. Phila., 21 Pa. 147, 164. "An act of the legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt": Com. ex rel. O'Hara v. Smith, 4 Binn. 117, 123. "This utterance of one hundred years ago has been repeated times without number, down to the present hour, without shadow of turning": Com. v. Hyneman, supra, page 247.

Article III, section 25, of the Constitution reads:

"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 the governor calling such session."

This constitutional provision contemplates that there shall first exist in the executive mind a definite conception of the public emergency which demands an extraordinary session. His mental attitude or intention is expressed in his proclamation, the purpose of which is to inform the members of the legislature of subjects for legislation, and to advise the public generally that objections may be presented if desired. It is not only a guide or chart with respect to which the legislature may act, but also a check restricting its action so that rights may not be affected without notice. The proclamation may contain many or few subjects according to the governor's conception of the public need. While the subjects may be stated broadly or in general terms, the special business, as related to the general subject on which legislation is desired, should be designated by imposing qualifying matter to reduce or restrict. Although the subjects should be sufficient to evoke intelligent and responsive action from the legislature, it is not necessary that they include all the methods of accomplishment. The guiding principle in sustaining legislation of a special session is that it be germane to, or within, the apparent scope of the subjects which have been designated as proper fields for legislation. In construing a call the words of any portion thereof must be interpreted not only as commonly and universally understood, but also as applicable to the subject intended to be affected by legislation.

While the legislature must confine itself to the matters submitted, it need not follow the views of the governor or legislate in any particular way. Within the special business or designated subjects submitted, the legislature cannot be restricted or dictated to by the governor. It is a free agent, and the governor, under the guise of definition, cannot direct or control its action. Nor is it confined to any one subject but may chose from parts of different subjects, provided a new subject, unrelated to those stated, is not acted upon: Chicago, B. Q. R. R. Co. v. Wolfe, 61 Neb. 502, 86 N.W. 441. Unless these rules be followed, the constitutional mandate is disregarded, and its entire purpose falls. Its mandate is imperative and must be enforced: Pittsburgh's Petition, 217 Pa. 227,230.

Though we have defined generally the rules applicable, it is frequently difficult to determine just what legislation is valid under a given subject or subjects designated in the call. A few illustrations will be enlightening. A subject may be so broad or general, having so many ramifications, that the special matter in relation thereto, on which legislation is desired, must be stated in the call.¹ Though a general subject is stated through a specification of a particular matter in connection therewith, this does not open the door for any legislation germane to the general subject beyond the scope of the specification. It must be confined to the specialized matter as interpreted in view of the general subject.² The cases cited in the note illustrate not only that legislation clearly outside the special matter, though related to the general subject, will not be sustained, but that where a general subject has been dealt with by naming a particular matter relating thereto, the call cannot further restrict the legislation within that subject.³ The subject must be stated with some particularity, but within the specified subject the legislature is fully empowered to act, just as they are forbidden to act when the general subject is not particularized. There are some decisions⁴ which go to the extent of holding that when a general subject is mentioned, the doors are thrown open to legislation on that subject, but these authorities appear to be in the minority and are opposed to the well-considered opinions of other states.

State v. Woollen,² an authority stressed by both sides, best sums up the general rules, stating:

"All [the cases] provide that the governor may confine the legislature, called in special session, to such subjects of legislation as he may prescribe. . . . . . All the cases agree that, while the governor may so limit the subjects of legislation, he cannot dictate to the legislature the special legislation they shall enact on those subjects. In all of them the inquiry is finally reduced to the ascertainment of the subject or subjects embraced in the call . . . . . . determined by an analysis and construction of that paper as in the case of any other written instrument, and by a like analysis and construction of the legislation drawn in question for the purpose of deciding whether it is embraced within the call or message."

With this general survey of the matter in mind, we now discuss the governor's proclamation. The court below stated that, though none of the subjects designated by the governor "included an appropriation of money such as was made in the act of assembly before us," as the entire proclamation stated one broad general subject, "unemployment relief," any legislation germane to that subject might be considered. The governor, by his proclamation, indicated nineteen specific subjects of legislation, six of which related to unemployment relief. Unemployment is a broad and difficult subject and its relief more so. To be helpful as a designated subject for legislation at a special session, it would need some specification, in the absence of which almost every kind of legislation might be indulged in by the General Assembly, such as laws concerning taxation, appropriations, hours of labor, or, in general, the regulation of business affairs of individuals and corporations. Indeed, to construe the Constitution so as to permit this latitude would be subversive of its purpose, contrary to its letter and its spirit, and opposed to the principles outlined in the best considered authorities. Such construction would mean that the call would furnish no guide or chart for the legislature, and would give no notice to the interested public. If this channel was the only way by which the bill could be sustained, in line with the authorities of other states, we would unhesitatingly declare it void. But we need not do this.

The governor having designated a channel of legislation through the subjects submitted to the legislature, it need not, in keeping within these subjects, be bound in the manner, method, or means of accomplishment as stated or implied in them (Likins's Petition, supra), but may, within a prescribed subject, add thereto, or modify or enlarge it so that, not losing its intimate relation with the subject designated, it may accomplish the purpose set forth in the particularization of the general subject designated in the call: State v. Pugh,31 Ariz. 317, 252 P. 1018.

The preamble to the proclamation is an expression of the motive which impelled the governor to act, and recites that "the first duty of the Commonwealth is to safeguard the people and to make secure the lives, the liberties, and the happiness of men, women, and children." It goes on, "The right to work for a living is part of the right to live," and sums up, "the welfare of the people in this Commonwealth, as in the United States at large, is endangered by the prevailing unemployment, which has deprived one quarter of the workers of Pennsylvania of the opportunity to earn a living and this fact constitutes a binding obligation to act upon every unit of government, from the least to the greatest." To act on what? The answer is obvious, unemployment, the subject the governor had been speaking about, and which was depriving one quarter of our workers of the opportunity to earn a living. This was obviously his major purpose in summoning the legislature. It was not his whole purpose since other matters were submitted, but there cannot be the slightest doubt that unemployment relief was the chief thought in the governor's mind.

The subjects involved in the preamble submitted to sustain Act 7-E, are as follows:

"The creation of a state commission . . . . . . [to] coöperate with . . . . . . poor districts in affording relief to the unemployed and their families." An act "authorizing . . . . . . poor districts . . . . . . to negotiate emergency loans for unemployment relief;" "authorizing counties . . . . . . and poor districts to levy taxes and expend money for unemployment relief"; "permitting local authorities under certain conditions to postpone tax sales during the periods of economic depression and unemployment"; "making new appropriations to . . . . . . any department . . . . . . of the state government . . . . . . to enable additional projects to be undertaken which will give work to the unemployed."

These channels of legislation having been pointed out, did the legislature go beyond the call to such an extent as to make its Act 7-E invalid? The statute states that: "Conditions of unemployment aggravate the normal situation facing public authorities charged with the care of the poor." "Section 1. That . . . . . . in the assumption by the Commonwealth of its duty to the care of the poor, the sum of $10,000,000 is hereby specifically appropriated to the department of welfare for payment to political subdivisions charged by law with the care of the poor." Section 2 provides: "The department of welfare shall make an allocation . . . . . . of the moneys . . . . . . 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 4 provides: "Each political subdivision charged by law with the care of the poor shall have authority . . . . . . 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 district who are without means of support."

It is urged that the act does not give unemployment relief, but poor relief, and that, since the two are distinct, in this view the act is not within the call. What is meant when the governor's call recommends a "commission . . . . . . [to] coöperate with . . . . . . poor districts in affordingrelief to the unemployed" and an act authorizing "poor districts to levy taxes and expend money for unemployment relief?" The governor's call shows his intention to be that unemployment relief should be taken up as poor relief by poor districts, and that the State should aid them. The powers of poor districts under the laws are and always have been limited to furnishing, support, food, clothing, fuel, and shelter, to poor persons, persons without means of support, and to no others. Then the only possible way open to a poor district to furnish relief to the unemployed would be when the unemployed were poor persons within the law. The governor did not intend, nor did his call include an unlawful purpose or one prohibited by the Constitution; he did not intend to include the unemployed who had means of support, the unemployed who were not poor persons under the law. Such being the consequences of his deliberate acts he must have meant unemployment relief in the sense of poor relief, for that was the only relief the poor boards could give. When the governor used the term "unemployment relief" in connection with poor districts, he meant persons who were unemployed and without means of support, or poor persons, and the relief to be given was poor relief.

The legislature, recognizing the governor's idea was that unemployment relief should be handled through the poor districts as poor relief, aided through borrowed money and a state commission, decided that aid could be most promptly and effectively given through an appropriation as in Act 7-E. The fact that the act included, in addition to the vast number 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. The act does not introduce a new subject, as unemployment relief meant poor relief; such inclusion was not only within the legislative power but without it the act would have been seriously imperilled, as seen later in this opinion. See Likins's App., supra, and authorities, note 3, supra, also last paragraph of this opinion.

The General Assembly was not bound to enact legislation covering one entire subject. An act may look to one subject to sustain part of it and to another subject to sustain another part; provided it does not, however, distort the subjects into an unrecognizable shape and create a new subject: Chicago, B. Q. R. R. Co. v. Wolfe, 61 Neb. 502, 86 N.W. 441. Then, too, the legislature has implied powers to make legislation within the subjects designated effective as such by enacting other legislation that will aid in accomplishing that purpose: Dexereaux v. Brownsville, supra, note 3. Such legislation must be clearly relevant for that purpose.

While the act was proper under the subjects stated, there was another part of the call authorizing an appropriation for new plans to give work to the unemployed which may be considered. Turning again to section 4 of the supplemental proclamation, we find the legislature may make "new appropriations to . . . . . . any department . . . . . . of the state government . . . . . . to enable additional projects [plans] to be undertaken which will give work to the unemployed." Construe the word "work" as synonymous with the word "relief" in the light of the preamble and the subjects above mentioned in which unemployment relief was the dominant purpose, and it does not strain the imagination to say that "give work to the unemployed" may include provisions enabling the unemployed to secure work by taking care of their bodies. A man's ability to work depends upon his physical condition. A starved man is not able to work, and the first step to bring him into condition to work is to feed him. The word "work" may well be used in the sense of relief, and is so used; and since the word "unemployed" applies to those who have no sustenance on which to live, this subject would cover the act. The tenor of the call being unemployment relief, which is poor relief, this thought naturally follows.

The legislature determined to accomplish the purpose stated in the call through Act 7-E by using existing agencies of the State and counties, and by furnishing aid to the unemployed through the poor districts, as the state agency. The legislature used its own method of accomplishing the governor's purposes designated in the call.

Paragraph 4 of the supplemental call designates anappropriation to any department. The Talbot Act appropriates to the department of welfare. Complaint is made that the appropriation was not given to the department of welfare, but to another agency of government; but this cannot be correct. The bill gives $10,000,000 to the department of welfare, which must perform certain duties in relation thereto. Instead of permitting that department to be the spending agency, as the legislature may well have done, it designated other governmental agencies which, under that department, spend the money. This is merely another detail of accomplishment of the designated purpose, and is purely a legislative matter, embracing the manner, method, or means by which the money may reach its ultimate destination and accomplish the purpose designated in the call. The act must be construed, if at all possible, as an efficient, workable system, and we so find it. No doubt it might have been better drafted, but there are no manifest imperfections of substance which defeat the full accomplishment of the end sought to be attained.

It follows from all we have stated above that Act 7-E is within the designated subjects mentioned in the call.

Article IX, section 4, of the Constitution provides:

"No debt shall be created by or on behalf of the State, except to supply casual deficiencies of revenue, repel invasions, suppress insurrection, defend the State in war, or to pay existing debt; and the debt created to supply deficiencies in revenue shall never exceed, in the aggregate at any one time, one million of dollars."

The balance of estimated revenues for the biennium, after the regular session of the legislature, was $192,915,000, and the authorized appropriations were $192,394,000. At the special session, prior to the Talbot bill, $716,000 was appropriated; with it the appropriations of that session totaled $10,716,000. Defendants contend that, since the appropriation made by this bill, with prior appropriations already made, exceeded the estimated revenues for the biennium, the excess appropriations were invalid.

The court below held that, though strict constitutional limitations were imposed on municipalities in the creation of debts, this was not so with respect to the sovereign state; that there was no limitation to the debt the latter might incur except when created to supply deficiencies in revenue. This conclusion is erroneous. Under article IX, section 4, the creation of a debt without the direct sanction of the people is not only limited, but absolutely prohibited, except to repel invasions, suppress insurrection, defend the State in war, supply deficiencies in revenue up to $1,000,000. Under the Constitution, neither the legislature, the officers or agents of the State, nor all combined, can create a debt or incur an obligation for or on behalf of the State, except to the amount and in the manner provided for in the fundamental law. This section was intended to restrict legislative acts which incurred obligations or permitted engagements on the credit of the State beyond revenue in hand or anticipated through a biennium, and establishes the principle that we must keep within current revenue and $1,000,000. There can be no such thing as a floating debt created through appropriations in excess of revenues and $1,000,000. Such debt may not be directly incurred by statute, nor through an appropriation in excess of current revenue for a gratuity or any purpose. The determination of the question whether Act 7-E creates a debt necessitates a study of the Constitution as it relates to revenues and appropriations.

Legislative power is vested in the General Assembly by article II, section 1, and its power is supreme on all such subjects unless limited by the Constitution. The control of the state's finances is entirely in the legislature, subject only to these constitutional limitations; and, except as thus restricted, is absolute. Unless expressly prohibited or otherwise directed by that instrument, appropriations may be made for whatever purposes and in whatever amounts the law-making body finds desirable. The legislature in appropriating is supreme within the limits of the revenue and moneys at its disposal.

Among the constitutional requirements are the provisions (article IX, section 12) that "The moneys of the State, over and above the necessary reserve, shall be used in the payment of the debt of the State, either directly or through the sinking fund," and, by article IX, section 13, that "The moneys held as necessary reserve shall be limited by law to the amount required for current expenses." We had a state debt when the Constitution was adopted and the money required to pay that debt, or any state debt, was supplied, inter alia, by the assignment to the sinking fund of any part of the revenue over and above ordinary and current expenses of government. A survey of the Constitution would indicate that the ordinary current expenses of government would be the expenses of the executive, judicial and legislative departments of government, and of public schools. It was the intention of the framers of the fundamental law to safeguard and protect these ordinary expenses, that the government might exist as such. Therefore, they have a preference or prior claim on all moneys of the Commonwealth over all other expenditures, expenses, debts, or appropriations. We have so held with regard to such expenses of municipalities. "Current expenses have first claim on ordinary revenues and contemplate operating expenses": Georges Twp. v. Union Trust Co., 293 Pa. 364, 370. The Constitution requires a reserve to be set up sufficient to take care of these preferred claims, and that such reserve be limited by law; but if the legislature fails to so limit it, it is the duty of the fiscal officers to safeguard the ordinary current monthly expenses of government.

The provision relative to the sinking fund for the state debt requires only $250,000 annually to be paid, and the transfer of a part of the revenue to that fund; that part, of course, being in the discretion of the legislature. But the ordinary expenses of government and the sinking fund payment are not the only preferred claims on revenues thus established and first entitled to payment. Article III, section 17, permits moneys to be given to charities and normal schools, money for charities if passed by a two-thirds vote. Money given to normal schools has priority on the general fund over an appropriation to charities, etc.: McLeod v. Central Normal School Assn., 152 Pa. 575,589.

The balance of the general revenue, subject to constitutional limitations, is in the absolute and complete control of the General Assembly. It follows that it may create preferential appropriations for any purpose which, in its judgment, it deems necessary in the interest of government, and such appropriations will have a claim on this surplus prior to other appropriations not so favored. See State v. Burke, infra. It may be the question of unfair classification might affect these preferences, but there is reasonable and proper basis for the preference in this act.

Any appropriation which embodies an intention to pay the amount therein stated before any other appropriation made at the same session of the legislature, or any appropriation which stipulates the time at or within which it must be paid, will take rank as an appropriation next to the ordinary expenses of government. Priority is a question of intention and prior claims rank equally unless there is an intention shown to the contrary or expressed through the Constitution.

The fiscal officers of the Commonwealth are required to treat such appropriations as having such priority, provided always that, at the time payment is directed, there are funds available in the treasury to meet such payment above all requirements for the current expenses of government. No administrative custom or scheme of payments under unpreferred appropriations will avoid these consequences or that of a deliberate legislative act in preferring an appropriation. If other appropriations are compelled to suffer because of this preference, the complete answer is that it is the legislative will, and, as the sovereign people have thus spoken through their designated agent, no one can complain. If appropriations for other charities and hospitals, equally meritorious and perhaps some more deserving, are made to suffer because of insufficient revenue, the fault lies with the legislature in not providing means when it had the opportunity. When we as judges consider their mandate it is of no moment to us, acting in a judicial capacity, that these other appropriations may suffer. If there are ample funds in hand, of course, or if funds later become available, no difficulty will be experienced.

The Talbot bill, known as Act 7-E, specifically appropriates $10,000,000, to the department of welfare, and contains a mandatory direction to the state treasurer to pay certain sums at fixed periods; $1,000,000, in December, 1931, $2,000,000, in each of the succeeding four months, and the remaining and final $1,000,000 in May, 1932. The amount, the time, and the purpose of payment, are thus definitely stated in the act. The legislature intended these payments to take priority over other payments at the times mentioned, and the purpose stated in the act furnishes a reasonable basis for such action. To effectuate its purpose, it was not necessary for the legislature to expressly state, "this appropriation shall take precedence over all other appropriations"; that is done by the act's mandatory provisions, which accomplish the same result. We assume the legislature must have considered the possible revenues when it issued its mandatory decree to the state treasurer to pay this money as it directed, and that it also considered the condition of the treasury.

But it is urged that, notwithstanding this preference, the legislature had already appropriated all the estimated revenues at the general session, and, as there were no funds or anticipated revenues against which this appropriation could be preferred, it is void. This contention wholly overlooks the fact that under our financial scheme of government, while the receipts of revenue come in daily or yearly, our fiscal period is biennial, and revenues for that period are the subject of legislative distribution. This can be made only from revenue accruing during the biennium, and any other available cash assets on hand that may be used for that purpose. From this sum all appropriations, whether made at a general or special session, must be met. An appropriation does not speak from the date of approval of the measures, but from a consideration of that appropriation and other appropriations during the same biennium, and the estimated revenue; and, if there is a shortage of revenue beyond $1,000,000, it is not a given appropriation, the last one made, that is singled out for rejection by the fiscal officers, but all must suffer alike and abate proportionately. If the budget is not balanced by the governor, then all appropriations must suffer proportionately except those in the preferred class. There is no priority among appropriations of the same class in any one biennium.

"Statutes enacted at the same session of the legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same legislature, and the words in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session": White v. Meadville, 177 Pa. 643.

Therefore, appropriations made at a special session must be considered in connection with and in relation to appropriations of the general session just as new revenue is included in and is a part of the general revenue for the two-year period.

State v. Burke, 37 La. Ann. 434 (1855), illustrates appropriation preference and abatement. There the relator endeavored to have a warrant paid and alleged that the state treasurer was about to pay other warrants in preference to his. The appropriations exceeded the revenue and the treasurer pointed out that all could not be paid, and that certain were entitled to preference because such was "expressly given by legislative act" or because they were in support of institutions recognized by the Constitution. The court said:

"All warrants, except the two classes [constitutional and universities] whose rank has already been settled, are ordinary warrants of the same rank, and are entitled to a pro rata distribution of the funds on which they are drawn, unless thelegislature expressly gives some a preference over others. When an appropriation has been made which the legislature can constitutionally make and a preference in payment of it over all others or over certain others has been accorded by the act,we do not conceive that the judiciary can control the legislative will in that regard." See also Stuart v. Nance, 28 Colo. 194,63 P. 323.

To give effect to the Talbot bill it was not necessary that there should be a specific repeal of any particular prior appropriation. The act itself effected a repeal of so much of other appropriations not in its class as would be necessary to make good this express mandate of the legislature. The result is that a debt is not and cannot be created by merely making appropriations which direct expenditures in excess of anticipated revenue, and the legislature cannot so enact. Appropriations in excess of estimated revenues and $1,000,000 are simply ineffective; they incur no liability or obligation on the part of the State; they simply abate pro rata to be within the biennium receipts and cash in hand.

With this determination of the case, we will not undertake to review the many authorities from other states cited by counsel where, through contractual obligations, debts were or would be precipitated on the State in violation of its Constitution: State of Ohio v. Medbery, 7 Ohio State 522; Newell v. People,7 N.Y. 8; In re Advisory Opinion to Governor, 94 Fla. 967,114 So. 850; nor from those states which have constitutional restrictions on appropriations in excess of current income: In re State Warrants, 6 S.D. 518, 62 N.W. 101; State v. Kenney,10 Mont. 488, 26 P. 383; In re Appropriations by General Assembly, 13 Colo. 316, 22 P. 464; Parks v. Commissioners of Soldiers' and Sailors' Home, 22 Colo. 86, 43 P. 542. An appropriation may contain in it all the elements of a contract which, when carried through, may of itself create a debt. On the other hand, where the appropriation authorizes the payment of a gratuity, it is not a debt within the meaning of the Constitution; if there is not sufficient revenue provided to meet it, a debt must not be created either by issuing warrants, lending credit, borrowing or otherwise, to meet the appropriation; such appropriation, or such part of it as cannot be met, simply falls. It is invalid.

The record shows that on June 1, 1931, the State had cash in bank amounting to more than $49,000,000, and since that date up to December 31, 1931, when this first payment was due under the Talbot bill, revenue had been collected up to another $49,000,000 or a total of $98,000,000, more than half of the anticipated revenue for the biennium. It is apparent there was a prima facie right on the part of the appellees to have their claim paid, and it follows that no objection could successfully be made against this appropriation on account of article IX, section 4,

Article III, section 18, of the Constitution provides:

"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 the contention of the attorney general that Act 7-E violates this provision of the Constitution in that the counties or poor districts which receive the money must be classed as communities, having been so defined by this court; that an appropriation to be used in the discretion of such recipients is an appropriation for a charitable or benevolent purpose; and, further, that relief to the poor is a matter of local concern.

May these contentions be sustained in light of the construction which the above section of the Constitution has received by this court? Act 7-E provides for poor relief in which is included relief for the unemployed without means of support. Is this a proper subject for legislative action? In Busser v. Snyder, 282 Pa. 440, where we considered an old age pension act, we held that the test for persons entitled to poor relief was, were they persons without means of support? The act there provided for discretionary payment of $1 a day to those of seventy years or upwards whose incomes did not exceed $365 a year and whose property did not exceed in value $3,000. An effort was made to bring this class of persons under the poor laws, but we held that the persons entitled to old age pensions by that act were not poor persons within the meaning of our poor laws (i. e., persons without means of support), certainly not where the act included citizens able to help themselves, who had estates up to $3,000 and incomes up to $365 a year. It does not require much imagination to show the contrast between the persons considered in Busser v. Snyder, supra, under the Act of 1923, and those entitled to relief under the poor laws. We further held in that case that the money proposed to be given under the old age pension was a benevolence and that the persons who were to receive it were persons or a community within the Constitution. The words, "person or community," were not limited to a single person or place, but were used in an inclusive sense relating to groups or classes of persons wherever they might be in any part of the State. We held the act unconstitutional as an effort to give the State's bounty to a definite class of persons who had means of support, and if Act 7-E was a parallel to that act, we would unhesitatingly decide the same way. But it is not.

As pointed out in Busser v. Snyder, supra, there is a vast distinction between the two subjects under consideration in so far as they relate to the constitutional prohibition. Poor persons, as understood by our laws, were always considered in an entirely different aspect from members of the public who had means of support. We will here again briefly discuss what we there stated as to caring for those historically known as poor persons, which was as follows:

"There is no direct prohibition against the use of state money to pay for the care and maintenance of indigent, infirm and mentally defective persons, without ability or means tosustain themselves, and other charges of like nature. They become direct charges on the body politic for its own preservation and protection. As such, in the light of an expense, they stand exactly in the same position as thepreservation of law and order. To provide institutions or to compensate such institutions for the care and maintenance of this class of persons has for a long time been recognized as a governmental duty and . . . . . . such appropriations may well be sustained on this theory."

This was said in defense of appropriations to nondenominational and other institutions and persons, a comparison having been drawn between the use of state money as provided for in the old age pension act and the use of state money by hospitals, and old age homes, for treatment of poor persons. To expend money for such purposes has long been recognized as a function of government; only the manner of itsadministration is restricted by section 18 of article III. Busser v. Snyder, supra, restates what was said in Collins v. State Treasurer, 271 Pa. 428, 433, as to the use of the state's money and the intent of the constitutional prohibition. Then later on (in Busser v. Snyder), speaking on the same subject, the use of state money for the poor, we said: "The thing which for more than two hundred years fixed the charge [poor relief] on the Commonwealth was the fact that . . . . . . [some of its people were unable] to support themselves . . . . . . [were] without means of support. The Constitution of 1873 recognized this condition as a public liability. Nothing is said therein prohibiting, interfering with or controlling the performance of the duty."

We also held in that case that the old age pension act could not enlarge a class (the poor) well known to those who adopted the Constitution and who knew of the government's responsibility for their keep.

We again held in Collins v. Martin, 290 Pa. 388, that the care of the poor as generally understood was a fixed governmental duty similar to the enforcement of law and order. It was there contended by our distinguished attorney general, citing Busser v. Snyder, supra, that "An appropriation to enable a branch of the state government to perform a governmental duty is not an appropriation for charitable purposes," even though it was worked out through a sectarian institution. We held that while there was a duty, whether it be absolute or discretionary, it could not be performed in a manner prohibited by the Constitution. So as not to confuse the performance of the government's duty with the manner of performance, we there said:

"Whether the charitable work is compulsory or discretionary, the performance is controlled by the Constitution. No function of government can be discharged in disregard of or in opposition to the fundamental law . . . . . . the performance of a function or duty can not take place in [a] prohibited way."

"The intent of these [constitutional] provisions was . . . . . . to forbid the State from giving . . . . . . to a religious sect or denomination . . . . . . the money of the people . . . . . . for administration or distribution:" Collins v. State Treasurer, supra.

In those cases we refused to approve acts because the institutions affected were prohibited by the Constitution from receiving the money. We restated in Collins v. Martin, supra, what was said in Busser v. Snyder, supra, that the obligation of the government to care for poor persons was not a charitable undertaking any more than the performance of any other public function is a charity.

Considering the subject of this case, we find Act 7-E makes an appropriation for the relief of the poor. We again hold that the support of the poor, — meaning such persons as have been understood as coming within that class ever since the organization of the government, persons who are without means of support, the same persons stated in the Talbot bill, Act 7-E, — is and has always been a direct charge on the body politic for its own preservation and protection; and that, as such, in the light of an expense, it stands exactly in the same position as the preservation of law and order. The expenditure of money by the State for such purposes is in performance of a governmental function or duty and is not controlled by the constitutional provision, if the purpose is to supply food and shelter to the poor, including those who are destitute because of enforced unemployment, provided only that the money be not administered through forbidden channels.

The appropriation, in providing for relief of poor, comprehended those who had been driven into that situation through enforced unemployment, they having no means to support themselves. From this cause the ranks of the poor have increased so rapidly as to stagger the people of our State. The fact that their numbers are swollen through unemployment does not change the established concept of poor persons. To hold that the State may not under the Constitution now aid such people, even though it be a governmental duty, would be to deny to the State the right to perform not only an important, but, at this time, a most pressing governmental function. To hold that the State cannot or must not aid its poor would strip the State of a means of self preservation, and might conceive untold hardships and difficulties for the future. It is no answer to say that the people generally should take care of the situation; whether they are or are not able to do so, does not relieve the State of its duty. The framers of the Constitution never intended that the instrument should deprive the legislature of this power. We have so held in Collins v. State Treasurer, supra; Busser v. Snyder, supra, and again in Collins v. Martin, supra. The State has these many years recognized this duty by building or aiding in the maintenance of insane asylums and hospitals for treatment of the mentally and physically deficient poor, and has given other poor relief.

But when the unemployed, with ability to work, have work offered to them, and they, without good reason, do not work, they are not poor people entitled to support within the poor laws of this Commonwealth. The poor authorities cannot furnish relief in any form to such persons. When work is offered such unemployed, they have the means of support, and neither the State nor the poor district would be permitted thereafter to keep, maintain, or support such persons in idleness or laziness, or further some other object equally as vicious. This would be true even if the families of such persons suffer because the one responsible for their maintenance refuses to work. It is the duty of every citizen, particularly public officials, to aid those entrusted with furnishing this relief, to see that it is not given to those not entitled to receive it. If the poor officers violate their duty by furnishing support to such unemployed persons, the State authorities may, through any agency, stop payments for such uses. The purpose of the State's relief is to furnish maintenance to poor persons, including those who, through enforced unemployment, have no means of support, and not to those who have such means.

The attorney general, one of the ablest constitutional lawyers in the State, concedes in his argument: "If in this case the court had before it an act providing that a state agency should supply food and shelter to those who are destitute because of enforced unemployment, and making an appropriation for the purpose, we should not be here urging the court to strike it down as a violation of article III, section 18, of the Constitution." He urges only that a county or poor district cannot do this, that it is contrary to the Constitution because the payments are discretionary with these authorities. But this objection will not avail. This being a governmental duty, it can be performed by the government, or by one of its delegated agencies or by an agency not prohibited by the Constitution from performing it.

Having twice decided that appropriations to perform obligatory public duties or functions are not charities or benevolences, we again hold that the State, in performance of its governmental duty to take care of the poor, is not forbidden by article III, section 18, either directly to assume this obligation, or to permit and aid one of its subsidiaries of government to perform it, or to have it performed by an institution not forbidden by the Constitution. As long as these channels are kept clear, constitutional inhibitions will not disturb such acts.

The act is intended to cover poor relief all over the Commonwealth, it was not limited to any particular locality. It embraces all persons within the historical definition of the term. There is no discrimination. When the legislature directed the money to be given to the department of welfare, with certain duties to perform, and then in turn selected the poor districts as governmental agencies to secure proper distribution, the State has within its hands the right and power to compel its proper administration. The act has not raised subordinate municipal bodies over their creators. Moreover, the State frequently selects county officials as agents to perform governmental duties. The officers of the poor districts in counties were selected as the most efficient means of administering the fund, and the territorial lines of the counties, which ordinarily limit the jurisdiction of such officers, limit their administrative powers as state agents over the fund. But people who receive it in one county are the same type of people as those who receive it all over the State; that is, poor people without means of support. Therefore, the administrative officers, the poor directors of the county, in administering this fund, are not communities within the letter or spirit of the Constitution, and as the persons affected are poor persons, in every town, city, and hamlet in the Commonwealth, they are not within the constitutional limitation.

Moreover, the persons who are handling the money can becompelled by the courts to see that it is properly administered as directed by law. Mandamus is a powerful remedy and the attorney general may compel a reimbursement to the state treasurer of moneys not properly spent and may force the officers of the poor districts to spend it in the way the sovereign dictates, — that is, for food, etc., in relief of poor persons. The State does not lose control over the money; if there should be any abuse of the powers granted, most likely an enraged public will compel obedience through the courts. That the act called for an audit by the auditors of the subdivisions does not prevent the State, within its general powers, from making its own audit.

The court below held that even though Act 7-E be prohibited by article III, section 18, and article IX, section 4, inasmuch as the legislature had declared it to be enacted under police power, these constitutional prohibitions would not apply, citing several of our cases to sustain this theory. The police power cannot be indiscriminately used as a prop to thrust the Constitution aside. More particularly is this so with respect to the debt section. If the excess appropriation had been a debt, it was clearly within the constitutional power of the legislature to provide sufficient revenues, and, having failed to do that, it could not seize on the police power provision to sustain its unlawful act. Under any circumstances the police power may not be used to strike down a constitutional prohibition when the legislature could by other means bring the act within the Constitution.

But, while courts will not hesitate to sustain a proper exercise of the police power under circumstances of extraordinary nature (as for instance where its exercise is necessary for the preservation of government), even though a positive constitutional provision stands in its way, the circumstances which call for such exercise must definitely and clearly appear, and the exercise must be in furtherance of a clearly defined major object of government. These instances are rare; therefore, the power in this respect has been sparingly sustained. Merely because the legislative ordinance has declared that it is enacted in the protection of health, safety, morals, and welfare of the government and its people, does not make it so.

If it was necessary to resort to the police power to sustain the present act, we would decide against such use. When this act was passed, there was no such situation presented to the legislature as would warrant the exercise of this high prerogative of government.

Article III, section 3, provides that "No bill . . . . . . shall be passed containing more than one subject, which shall be clearly expressed in its title," and appellants' position is that, inasmuch as, under the act duties devolved upon certain officers without notice to them in the title, the act was void. The act is entitled, "An act making an appropriation . . . . . . 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."

All poor authorities, whatever their official relations may be, certainly had ample notice through the title that the legislature was about to do something in which they were interested. We have often stated the title of an act need not be a synopsis of it. The purpose of the constitutional provision was expressed in Sugar Notch Boro., 192 Pa. 349, 355, and this act is not in conflict with the restrictions there stated. The county commissioners and treasurers are named for certain purposes, but the duties imposed on them are not burdensome duties, they simply receive their quota of the appropriation allotted, and turn it over to the poor directors charged with the care of the poor. No new subject is introduced. These officers are merely the instruments which pass the fund on for administration.

Moreover, unless a substantive matter, entirely disconnected with the named legislation, is included within the bill, the act will not be declared in violation of the Constitution as offending section 3, of article III: Carr v. Ætna Accident Liability Co., 64 Pa. Super. 343, 349. It is not so here. Thus in Com. v. Macelwee, 294 Pa. 569, the title was attacked in the same manner because the act required the township treasurer in townships of the first class to collect poor taxes, and there was no suggestion in the title that that act had anything to do with poor districts. We refused to sustain such contention, holding: "An act concerning townships is notice to all persons located therein and to every subordinate municipal division . . . . . . that there may be, in the body of the act, something which affects his or her interests." In Orlosky v. Haskell, 304 Pa. 57, where the Vehicle Code of 1929 was attacked because the title made no reference to the service of process issued out of the courts of counties other than those in which the court had jurisdiction, the question was similarly determined in favor of the constitutionality of the act. Other cases might be cited to the same effect. Most of the appellants' cases refer to instances where positive burdens were placed on subdivisions of government or officials of them without notice to them. It is not so in this present act of assembly. The act is not void for that reason.

Article III, section 7, of our Constitution states that: "The General Assembly shall not pass any local or special law . . . . . . regulating the affairs of counties," and article III, section 34, permits the legislature to classify "counties."

Appellants contend that to the extent that the act requires certain county officers to procure information regarding unemployed persons in their districts, it regulates the affairs of these counties, and to the extent that it imposes a like duty on the welfare department of Philadelphia, it regulates the affairs of the city. The commissioners of fifteen counties out of sixty-seven are required to perform this duty; Philadelphia and Pittsburgh are the only cities.

There is no unconstitutional classification. The act appropriates funds to all political subdivisions charged with the care of the poor. No one in particular is singled out. As we said in Sugar Notch Boro., supra, page 356:

"It is the settled law since Wheeler v. Phila., 77 Pa. 338, that classification based on genuine and substantial distinctions is within the constitutional power of the legislature, and an act which applies to all the members of the class is general and not special."

The officers selected are the officers of the poor districts throughout the State. The mere fact that in some counties offices may be filled by such commissioners, in others by poor directors, in a few other districts by overseers of the poor, and in the Cities of Philadelphia and Pittsburgh by the department of welfare, does not present a case of unconstitutional classification. The act says the State is "assuming its obligation to care for the poor," and it proposes to do it through poor districts. The act does not regulate the affairs of counties in imposing state duties on these officers, who are otherwise in control of the local affairs of their districts, the duties imposed being to procure the information and administer state funds. It is not a special act regulating the affairs of any county.

The classification of poor districts is and always has been very badly mixed up. They do not adhere to county lines, and, as we understand, in some instances overlap into other counties. Parts of cities are joined with parts of townships and separate districts within a city. In many of the counties, the commissioners are in authority, in some districts overseers, in others poor directors. This classification was well known when article III, section 7, of the Constitution, and the amendment later permitting the classification of counties were adopted, and it will be noted that article III, section 7, did not include poor districts among the divisions interdicted from special laws. No doubt this was because, as they then existed, it was deemed wise not to disturb them. It may be argued that as to these districts, section 7 of article III does not apply.

There are a few other questions raised by the attorney general. Are Pittsburgh and Philadelphia political subdivisions charged by law with the care of the poor, and as such entitled to receive state aid under Act 7-E? A review of the pertinent legislation on the subject of poor districts as affecting these cities discloses conclusively that both are such political subdivisions entitled to receive their allotment under Act 7-E. The department of welfare in Philadelphia is charged with the duty formerly devolving on the poor authorities, except as to six specially created poor districts. These duties originated under sections 18 and 19 of the Act of February 2, 1854, P. L. 21; later April 7, 1859, P. L. 400. Through successive legislative acts these duties have been continued until the Charter Act of June 16, 1919, P. L. 581.

Allegheny County is now divided into two districts, Pittsburgh and the territory without. By legislation similar to that of Philadelphia, all the duties pertaining to prior poor authorities devolve on the department of welfare of the City of Pittsburgh.

Relative to the allocation of the various amounts to the several districts as stipulated in the act and questioned by defendants, it must be conceded that this subject is difficult, but difficulties can not prevent an otherwise workable act from being valid. An exact scheme or chart, perhaps, cannot be laid out, but no doubt the officers in control, in obedience to the law, will carry it out according to its letter and spirit, and see that speedy and equitable allocations are made. Other questions concerning this matter have been discussed in other parts of this opinion.

We are not troubled with the meaning of the words "shall have authority," which bother appellants. One thing is quite certain, that the money may be spent only for food, clothing, and so forth, and if it is not all spent for that purpose, it must be returned to the State. We doubt if this question will ever arise. As to the expenditure of any of these funds for persons other than those who are poor because of enforced unemployment, there is this to be said to the credit of our communities: At no time except possibly once or twice since the organization of the State have these districts ever been in a situation to require state aid. They have always been able to take care of the poor because their numbers were so very small, in proportion to the people in the county. Today this number has been vastly increased by enforced unemployment compared with those who were poor in normal times. As a practical matter the state support will not reach any of those who were poor before the increase in their numbers; but the county's money will be used to take care of these persons, and to relieve the increased number of poor through unemployment. We have discussed this matter at this point as it is specially dealt with by the attorney general, but it might well be read with the discussion of the same matter in connection with the call. From all that has been said, it follows that the judgment of the court below was correctly entered.

Judgment affirmed.

¹ Thus, under a call for legislation "in any wise affecting corporations," a law requiring railroads to fence their rights-of-way, was passed. The call was too broad, covered too wide a field and in effect named no subject, hence the act fell: Denver R. G. R. R. Co. v. Moss, 50 Colo. 282,115 P. 696; Nielsen v. C., B. Q. R. R. Co., 187 Fed. 393.

² Thus where a call for an appropriation to maintain certain government agencies was followed by an appropriation for a National Conservation Exposition, the general subject (appropriations) was narrowed and limited by the specific matter to which attention was called, and the above appropriation was held invalid: State v. Woollen, 128 Tenn. 456,161 S.W. 1006. A call for a law on the subject of the erection of county bridges would not open the door for any legislation on the general subject of bridges under county control; therefore acts concerning their repairs or safety were not good: Fayette Co. v. Co. Commissioners, 35 Pa. C. C. 401. A call to enact legislation for the consolidation of contiguous cities in the same county did not permit legislation for consolidating cities generally or cities in close proximity: Pittsburgh's Petition, supra. A call to enact road laws for one county did not include the regulation of turnpikes generally: Columbia, etc., v. Hughes, 131 Tenn. 267, 174 S.W. 1108. A call for legislation relative to the use of money in political campaigns and requiring a report from political committees would not open for legislation the general subject of elections: Likins's Petition, 223 Pa. 468.

³ A call to simplify court procedure was, however, sufficient to include an act regulating the length of the term of the court (Long v. State, 58 Tex.Crim. R., 127 S.W. 208); and a call to amend attachment laws of the State by striking out named sections was in itself sufficient to include other causes of attachments; the specific subject of causes of attachment could not be further limited to those named by the governor in the call: In re Governor's Proclamation, 19 Colo. 333, 35 P. 530. A call to amend the Australian ballot law in certain particulars permitted other amendments than those specified. The Australian ballot law was itself part of a general subject, election laws. Thus specialized in the call, the governor could not restrict the legislation on such a specific subject: People v. District Court, 23 Colo. 150, 46 P. 681. So a call for laws relating to compromising municipal debts gave implied authority to repeal certain acts necessary to reach compromises: Devereaux v. City of Brownsville, 29 Fed. 742.

⁴ See Baldwin v. State, 21 Tex. App. 591 [21 Tex.Crim. 591], 3 S.W. 109, where the call was for legislation to reduce taxation, and the legislation imposed a new tax on a new subject, and it was upheld, the court saying the whole subject of taxation was before the legislature. So in the same state a call seeking the prohibition of the sale of liquor within ten miles of a military camp was held to have opened the subject of general prohibition, permitting a state wide prohibition law: Ex Parte Davis, 86 Tex.Crim. Rep., 215 S.W. 341.