Frost v. Cherry

Opisiox,

Mu. Justice Paxson :

This case involves the constitutionality of the act of assembly of June 23, 1885, P. L. 142, entitled “An act to repeal the first section of an act entitled ‘ An act for regulating and maintaining of fences,’ passed Anno Domini one thousand and seven hundred.”

The first section repeals in terms the above recited act of 1700, commonly known as the fence law. Had it stopped here, there would have been no question as to its validity. But the second section contains this important provision: “ That it shall be the duty of the sheriff of any county, on the request of the county commissioners thereof, to cause this act to be published therein, with and in the same manner that notices of the next general election shall be published; and for the purpose of ascertaining whether or not the provisions of this act are deemed expedient and desired in such county, the qualified, electors thereof may vote, at such next general election, by ballots, written or printed, as follows, namely: On the outside the words, ‘ Repeal of the°fence law,’ and on the inside the words, ‘In favor of repeal,’ or 1 Against repeal; ’ and in receiving, counting, and making returns of the ballots aforesaid, the judge, inspectors, and clerks shall be governed by the laws of this commonwealth regulating general elections; and if, upon a proper count of such ballots in any county, it shall appear that a majority thereof are ‘ In favor of repeal," this act shall forthwith take effect therein; but the same shall not take effect in any county of this commonwealth until it has been ascertained that the provisions thereof are deemed expedient and desired therein by an election as hereinbefore provided: Provided, That if at an election held in any county under the provisions of this act, it shall appear that a majority of the votes cast thereat are ‘ Against repeal,’ no vote shall be taken again as herein provided for the period of three years thereafter.”

It is contended, and the learned judge below so held, that the act is in conflict with § 7, article III. of the constitution, which provides, inter alia, that “ The General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.”

The word, affairs, as used in the constitution, has received a judicial construction by this court. In Morrison v. Bachert, 112 Pa. 322, it was said: “ When it (the constitution) speaks of the affairs of a county, “ it means such affairs as affect the people of that county.” We accordingly held in that case that an act to ascertain and appoint the fees to be received by prothonotaries and other county officers was an act regulating the affairs of counties; while in Commonwealth v. Patton, 88 Pa. 258, and in Scowden’s Appeal, 96 Pa. 422, we ruled that an act of assembly which authorized the holding of special sessions of the courts of Crawford county, away from the county seat, offended against this clause in the constitution. The particular device resorted to in these cases to evade the constitutional prohibition was classification.

The act of 1885 concerns the great body of the people of the county. It affects every farmer, almost every lot-holder, and every person who keeps horses or cattle, sheep, hogs, or goats. It would seem difficult to frame an act which could more generally concern the people. Moreover, it prescribes certain duties to the sheriff, the commissioners, and all the election officers. How then can it be said that it does not relate to the “ affairs ” of counties within the meaning of the constitution.

Is it a local law ? Upon this point we are free from doubt. It is to be observed that the first section, repealing the act of 1700, does not go into effect in any county by its own force. If it did, we might sustain it even if the rest of the act were unconstitutional. But the first section is tied to the second section by an umbilical cord. If we cut it they both perish. The first section is only effective after a vote of the people in each county. If a majority in any county vote in favor of it, then the act takes effect in such county ; if the majority should be against it, the act does not take effect. Thus it may very well happen that Venango county may vote in favor of the repeal and its adjoining counties vote against it. We would then have one law in Venango county regulating fences, and a different law in the adjoining counties, both local laws, the very thing prohibited by the constitution. Nor would it make any difference were every county in the state to vote the same way. The test is not results, but possibilities. The machinery to test the sense of the people can only be put in operation by the county commissioners, and when so moved, the fact that it may be renderedlocal in its effects is fatal to the bill. In City of Scranton School D.’s App., 113 Pa. 176, it was said by Mr. Justice G-eebn, in delivering the opinion of the court: “ The circumstance that the power to determine the question is delegated to another body does not at all affect the question. The practical result is the same; the law of 1875 will be limited to the one or more cities that do accept and that makes it local. All our recent decisions are to the effect that if local results either are or may be produced by a piece of legislation, it offends against this provision of the constitution and is void ; ” citing Commonwealth v. Patton, supra, and other cases. Scranton School D.’s App., is upon all fours with the case in hand. The act of 1875 there referred to was an act for the assessment, levy, and collection of all taxes authorized to be collected in certain cities, and to which by the proviso of the fifth section no city of the third class shall become subject until . they are accepted by ordinance of councils, approved by the mayor, and it was held that the first five sections thereof were thus limited to the one or more cities that accept, and were therefore local and in conflict with § 7, article III. of the constitution.

If there is anything now settled in the constitution it is that the legislature can no longer pass a valid local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts. And what the legislature may not do directly, it cannot accomplish by indirection, as by classification resting upon no necessity nor reason of public policy, or by calling in the aid of the people at the polls to breathe life into an otherwise dead statute.

I have not considered it necessary to discuss the question of the delegation of power. The act of 1885 is in such direct conflict with § 7, article III. of the constitution, that the learned judge below could not have done otherwise than declare it void for that reason.

Judgment affirmed.