Perkins v. Philadelphia

Dissenting Opinion by

Mr. Justice Mitchell,

October 2, 1893:

The intention of the legislature in the act of 1893 is perfectly clear, and its object entirely constitutional. The objections to the act are to the mode in which that intention and object are sought to be accomplished. If these objections are substantial, then no matter how well meant and desirable the purpose, it must fail. That is the penalty of living under the present constitution, pervaded as it is by a profound distrust of the legislature. In the impatience of the people with some of the evils of special legislation, they have rushed to the other extreme, and so hedged about and bound up the legislative arm of the government that legitimate and necessary powers can be exercised only with difficulty if at all. Article 3, On Legislation, contains, as our brother Dean has pointed out, sixty specific prohibitions, besides other restrictions and regulations not absolutely prohibitory. It is a barbed wire fence around all legislative action; bristling with points of danger even to the most honest, and desirable, and essential laws. A literal adherence to all its provisions would have stopped the wheels of government, and so this court was forced to hold when the first great question of the needs of municipal legislation came before it. Some elasticity was absolutely indispensable, and it was found in the principle of classification.

I make these observations and this illustration to call special attention to the necessity of reading the constitution, where it relates to the powers of the legislative branch of the government, in a broad and liberal way, looking to its spirit as more controlling than its mere words. If a statute does not offend against the spirit, does not really do the thing which the constitution means to prohibit, then it should be sustained, although its form may be liable to objection under the strict words of the prohibition.

The act under consideration is drawn with great carelessness or over-confidence. The objections to its form are manifest and admitted. Even the argument of the very skillful and learned counsel for the respondents is an apology, and a plea to save it notwithstanding its undeniable faults! In this argument I entirely concur. As already said the general intent of the act is clear, and its object entirely constitutional. Looking at this object and intent the objections to its form do not seem to me sufficiently deep-seated to require us to hold that it transgresses the real meaning of the constitutional prohibitions. It will be sufficient without elaborating the discussion,-to indicate-in a general way, the reasons why I think it can and-ought to* be sustained.

First. The creation of a new commission, consisting of the Department of Public Works, does not seem to me the necessary result of the act. It is no part of the general intent, which is to abolish the commission created by the act of 1870 and transfer its powers to the city of Philadelphia. The designation of the Department of Public Works is merely the naming of that branch of the city government to which the act of 1885 would commit the subject, had the present act briefly repealed the act of 1870 without more. The transfer of the powers of the old commission to the Department of Public Works, is a transfer to the office, not to the incumbent, and is therefore really to the city of whose government the office is a part. The naming of the agent instead of the principal is not material, because the whole scope of the act shows that it is not a grant of power to the agent individually, but to him as agent and representing the principal. This conclusion is plain from the fact that if all this part of the statute had been omitted, the result would have been exactly the same. The existing law, the act of 1885, would in that case’ have transferred the power to the same place where this act expressly puts it, namely, the Department of Public Works. At most, this part of the act is surplusage, and should not be allowed to vitiate the whole.

Secondly. The objection that the act covers more than one subject, rests on the view that it creates a new commission. If the construction indicated in the preceding paragraph be adopt ed, this objection disappears.

Thirdly. The act is applicable to all cities of the first class, and relates to a subject of municipal government. It therefore comes within the decisions sustaining the classification of cities and is a general law.

Fourthly. Even if the first section of the act be construed to create a new commission, and therefore to be unconstitutional, the second section is free from that objection and can stand by itself as a valid repeal of the act of 1870. It is clearly sever-able, and therefore not involved in the invalidity of section first, if that be conceded for the argument’s sake. Nor do I find the objection that section second contains more than one subject insuperable. The only real subject is the repeal of the act of 1870, and having expressly enacted that, the section proceeds to repeal a section of the act of 1885 which had preserved the commission under the act of 1870, and therefore might be thought to conflict with the present act. But in repealing that section of the act of 1885 without qualification, the act of 1867 creating the Park Commission would also be repealed, which was not intended or desired, and therefore a saving proviso was added with regard to this last act.

In all this there is nothing but the one subject, the repeal of the act of 1870 and thereby the abolition of the commission created by it. The repeal of the section of the act of 1885 was a part of the same purpose, and the proviso as to the Park Commission was necessary in order to limit the repeal to the object really intended. It no more introduced a new subject than the usual clause repealing all laws and parts of laws inconsistent with a new enactment.

For these reasons I am of opinion that the injunction should be dissolved.