Commonwealth ex rel. Attorney General v. King

Opinion by

Mr. Chief Justice Moschziskeb,

This case arises on a petition for mandamus and demurrer thereto, the question presented being whether a proposed constitutional amendment, — providing for á bond issue to continue the road program of the Commonwealth, — which has been agreed to by the legislature a second time, may be published prior to an election held throughout the State in an odd-numbered year, such elections being technically termed “municipal” and those held in even-numbered years alone being called “general.”

Article XVIII, section 1, of the Constitution, relating to amendments, provides that, after a proposed amendment has been agreed to the first time by the two houses of the legislature, “the secretary of the Commonwealth shall cause the same to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published; and if, in the general assembly next afterwards chosen, such proposed amendment......shall be agreed to,......the secretary of the Commonwealth shall cause the same again to be published in the manner aforesaid; and such proposed amendment......shall be submitted to the qualified electors of the State in such manner and at such time, at least three months after being so agreed to by the two houses, as the general assembly shall prescribe.”

This last clause solves the question at issue, for the general assembly, by Act of April 3, 1923, P. L. 55, prescribed that, unless it should provide otherwise in respect to any particular proposed amendment (and here it did not), constitutional amendments should thereafter be submitted to the qualified electors for their approval “at either the municipal or general election” occurring at least three months after the date when the amendment in question “shall have been agreed to for the second time by [the legislature], as provided in article XVIII, section 1, of the Constitution.”

The Act of 1923 is attacked on the ground that the Constitution requires the submission of proposed amendments at a general election, occurring in even-numbered years, and therefore prohibits such submission at an election held in an odd-numbered year; but this contention is not sound. The words “general election,” which appear only in the early part of article XVIII, section 1, have no connection with the voting to take place after the amendment has been twice approved by the legislature. As is properly said by the court below, “If the contention of the respondent be sustained, the provision that the amendment is to be submitted to the electors at such time as the general assembly shall prescribe, is meaningless, because, if it can only be submitted at a general election, there would be no point in conferring upon the general assembly the power to prescribe the time at which the amendments shall be submitted.” We have neither the right nor the inclination to eliminate that clause from the Constitution.

There is a real reason for requiring the advertisement prior to the general election when the legislature has still to pass on a proposed amendment. Members of the general assembly are chosen only at general elections; hence, as the opinion under review well says, “The purpose of the [constitutional] requirement of publication three months before the next general election [following the first legislative agreement to the proposed amendment (this being “the only place where the phrase ‘the general election’ appears”)] was to give the electors an abundant opportunity to be advised concerning the proposed amendment and to ascertain the policy of candidates for the general assembly to be ‘next afterwards chosen,’ because they would have to pass upon the proposed amendment when it came before the general assembly a second time.” This, as noted by the court below, is suggested by us in Commonwealth v. Griest, 196 Pa. 396, 115.

On the other hand, when a proposed amendment reaches the stage of the present one, it is evident no such reason as that above stated applies, for, to again quote from the opinion under review, “the purpose of the second publication [which is. the one here in question] is to advise the electors themselves, so that they may vote intelligently [and directly] upon the proposed amendment,” and “this published information would have the same effect, if made before a municipal election, as if made prior to a general election.” The constitutional-provision calling on the secretary of the Commonwealth to cause the second notice “to be published in the manner aforesaid” means that the required notice must appear “in at least two newspapers in every county” in which that course is possible, and not that it must be published prior to a general election; its appearance in the proper publications three months before the day set for the electorate to pass on the proposed amendment is sufficient.

It is clear, both from the language of the Constitution, which alone would be 'controlling, and from the manifest-purpose of its several provisions, as already pointed out, that those in authority have the right to submit proposed amendments to the electorate for approval “at such times,” at least three months after their adoption by the legislature, as that body may ordain; hence, in view of the recent act, supra, the court below did not err in directing the Secretary of the Commonwealth to advertise the present amendment for the election of November, 1923.

Since briefs were sent to us in advance of the date set for argument, and the case was submitted without oral presentation, we are able to comply with the request of the state officials for the prompt filing of an opinion.

The assignment of error is overruled and the judgment is affirmed.