Commonwealth ex rel. Roney v. Warwick

33 A. 373, 172 Pa. 140, 1895 Pa. LEXIS 745

• Court: Supreme Court of Pennsylvania
• Decided: November 8, 1895
• Docket: Appeal, No. 39
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Sterrett,

It was unavoidable in their earlier administration that conflict should have arisen between the legislative and judicial branches of our government. The form of government was new, and the exact limitations of duty and power were imperfectly understood. Even their co-ordination of power was doubted by some: Eakin v. Raub, 12 S. & R. 330; and the feeble resistance offered by the judiciary naturally encouraged encroachments by the legislature. The mischief which resulted became so great that this court was compelled in Norman v. Heist, 5 W. & S. 171, and Bolton v. Johns, 5 Pa. 145, to take a stand in assertion of the power which the constitution had conferred. “ The functions of the several parts of the government are” said Gibson, C. J., in De Chastellux v. Fairchild, 15 Pa. 18, “thoroughly separated, and distinctly assigned to the principal branches of it, the legislative, the executive and the judiciary, which within their respective departments are equal and co-ordinate,” and hence the principle was declared and has become firmly established in a bead-roll of cases that “the legislative direction to perform a judicial function in a particular way would be a direct violation of the constitution: ” O’Conner v. Warner, 4 W. & S. 223. Tested by this principle, the act of 1867 is not legislative but expository in its character. It does not purport to amend, alter, or change the language of the act of 1854. It offers no substitutionary clause but declares what that act “ shall be construed to mean.” It iá, on its face, a legislative mandate to the courts to perform their judicial function in a particular way. The appellant insists that this court has recognized an exception to the rule of expository prohibition in cases of doubtful construction. There are, it is true, dicta to that effect; but no precedents have been cited in which it was made the basis of decision. In O’Conner v. Warner, supra, it was placed on the ground that no injury had been done the parties. In Lambertson v. Hogan, 2 Pa. 22; Reiser v. Sav. Fund Assn., 39 Pa. 137; Denny v. Sav. Fund Assn., 39 Pa. 154; Blackburn’s App., 39 Pa. 160; Haley v. Phila., 68 Pa. 45, and Titusville Iron Co. v. Keystone Oil Co., 122 Pa. 627, certain expository statutes were denied retroactive effect; while, In re East Grant Street, 121 Pa. 596, an act was held invalid so far as it undertook to declare the meaning of a prior act; but, so far as it provided a substitutionary clause, was effective in repeal. Nor is it apparent how an exception can be reconciled with the theory of exclusive legislative and judicial functions. Its existence is an invitation to and has resulted in many attempted encroachments on the province of the latter; and, if it extend to cases like the present, has no limit in its application and puts in the power of the legislature the abrogation of the principle to which it is said to be an exception.

But concede the legislative power to pass expository acts ; its exercise was said in Haley v. Phila., supra, to be limited to statutes wliose construction is “really doubtful.” “It would be monstrous ” said Mr. Justice Shabswood, “ to maintain that where the word and intention of an act were so plain that no court had ever been applied to for the purpose of declaring their meaning, it was therefore in the power of the legislature by a retrospective law to put a construction upon them contrary to their obvious letter and spirit.” “ The word and intention ” of the act of 1854 are so plain that there is no room for construction, and therefore no occasion for the passage of an expository statute existed. It declares, so far as relates to the subject under consideration, that “ whenever any elective offi-cer of said city shall die, or become incapable of fulfilling the duties of his office, his place, except where other provision is made for filling the vacancy, shall be filled by a joint vote of the city councils until the next city election and the qualification of the successor in office; Provided, that such vacancy shall exist at least thirty days before the next city election, otherwise such vacancy shall be filled at the next election thereafter ; ” while the act of 1867 declares that it “ shall be construed to mean,” what 'is obviously contrary to its “ letter and spirit,” that such appointee shall hold during the unexpired term.

It was also contended that “ as the constitution prescribed no form or order into which the legislative expression was to be cast,” neither form nor order were material, and this court should therefore give effect to the “purpose ” of the act of 1867. But the “purpose” of every statute as of all other instruments must be gathered from the language used; and this act undertakes to give a new and final interpretation to the act of 1854, and direct the courts to adopt that interpretation in all cases which come before them. Obedience to this order is an abandonment of a principle which is vital to the preservation of our system of government. “ As the legislature cannot,” says Judge Cooley in Const. Lim. 114, “set aside the construction of the law already applied by the courts to actual cases, neither can it compel courts for the future to adopt a particular construction of a law which the legislature permits to remain,in force. One of the fundamental principles of all our governments is that the legislative power shall be separate from the judicial. If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to courts which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but to the legislative judgment.”

The practical effect of the act of 1867 in the present case would be to compel this court to “ construe ” the expression, “ the next city election,” used in the act of 1854, to mean not the “next” but the “next but one.” It was clearly beyond the legislative power to thus usurp judicial functions, or to distort language.

Judgment affirmed, and it is now ordered that a writ of peremptory mandamus be issued, as prayed for in the petition, directed to the defendant Charles F. Warwick, maj'ur of the city of Philadelphia, commanding him to administer to the relator, William J. Roney, the oath of office of receiver of taxes for the city of Philadelphia, as required by law, and to the said defendants, members of councils of the city of Philadelphia, commanding them to consider the form and sufficiency of the bond required to be entered by said relator for the city of Philadelphia, and that the costs be paid by the defendants.