In re Appointment of Additional Supervisors , 22 Pa. Commw. 272 ( 1975 )

Dissenting Opinion by

Judge Mencer:

I respectfully dissent. There is no provision in the act in question¹ for the determination of any fact or facts upon which the action of the court depends. There are no standards by which the court is to be guided. It is solely and exclusively a matter of discretion. The court alone determines the conditions under which it will exercise the discretionary power to enlarge or to refuse to enlarge the board of supervisors.

This discretionary power vested by the Act is legislative in character and therefore unconstitutional. As stated in Holgate Bros. Co. v. Bashore, 331 Pa. 255, 260, 200 A. 672, 675 (1938):

“Legislative power in Pennsylvania is vested solely in the General Assembly. Regardless of exigencies which at times arise or of how trying our economic or social conditions become, the powers and duties imposed by the Constitution upon the legislative branch of our government remain steadfast and neither the urgency of the necessity at hand nor the gravity of the situation allow the legislature to abdicate, transfer or delegate its authority or duty to another branch of the government. Our system of checks and balances in the government was wisely instituted by the framers of the Constitution for the protection of all the people of the Commonwealth and has proved an effective method to prevent unwise, hasty and imprudent legislation. So effective has been this system of government no attempt has been made to amend that part of the Constitution and it remains the fundamental law of this Commonwealth.

“The legislature may, however, leave to administrative officers, boards and commissions, the duty to determine whether the facts exist to which the law is itself restricted. In all such occasions, nevertheless, the legislative body must surround such authority with definite standards, policies and limitations to which such administrative officers, boards or commissions, must strictly adhere and by which they are strictly governed. As said by Mr. Justice Agnew, in Locke’s Appeal, 72 Pa. 491, 498, ‘Then, the true distinction, I conceive, is this: The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.’ ”

Also, see the opinion of Judge, now Justice, Eagen, In re Dickson City Council, 73 Pa. D. & C. 358 (1950).

1 . Act of March 1, 1974, P. L. 111, which amended the Act of May 1, 1933, P. L. 103, art. IV, §402, 53 P.S. §65402 (B).