DocketNumber: Appeal, No. 77
Citation Numbers: 38 Pa. Super. 430
Judges: Head, Henderson, Morrison, Orlady, Porter, Rice
Filed Date: 2/26/1909
Status: Precedential
Modified Date: 2/18/2022
The defendant rests his appeal upon the single proposition, that as the right to institute a proceeding for a restraining order is given by the Act of May 29, 1901, P. L. 327, to the dairy and food commissioner and is denied to any other person, the proceeding must fail for lack of proper official to institute it, because the legislation creating the office of dairy and food commissioner conflicts with sec. 27, Art. III. of the constitution which reads: “No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officer when authorized by law.” In the determination of the question it is not necessary to go back of the Act of March 13, 1895, P. L. 17, and the recent decision of the Supreme Court in Commonwealth v. Warren, 217 Pa. 163, in which it was authoritatively declared that neither the head of the department of agriculture, nor any one of the four subordinate officers fills an office, the creation of which is forbidden by the constitution. Speaking of the dairy and food commissioner, one of the subordinate officers above referred to, Mr. Justice Brown said: “His right to hold a lawful office is one thing; his right to exercise enlarged powers which he may not lawfully exercise is another, and, having determined that he is holding a lawful office we leave the question of his right to exercise alleged forbidden powers to be raised in some other proceeding, in which specific acts said to be performed by him under statutory powers prohibited by the constitution may be set forth and inquired into and restrained, if unlawful.” It follows that as the statutory power under which he instituted the proceeding for a restraining order is not prohibited by the constitution, the objection urged by the defendant against the validity of the
The order is affirmed at the costs of the appellant.