Thompson v. Commonwealth ex rel. Althouse

81 Pa. 314, 1876 Pa. LEXIS 152

• Court: Supreme Court of Pennsylvania
• Decided: October 9, 1876
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court,

Althouse, Miller and Jones, the defendants in error, were authorized by an Act of Assembly, passed on the 7th of April 1869, designating them as commissioners for that purpose, “ to examine the ground for, and view, lay out and distinctly mark upon the best ground, and to the best public advantage, a state road,” in Porter township, Schuylkill county. The third section of said act provides, “that the state road shall be opened and constructed of the width fixed therefor by the said commissioners, not exceeding fifty feet, and at the expense of the individuals and companies owning or occupying lands through or contiguous ór adjacent to which the said road shall be laid out,” &c. The commissioners accepted the appointment, and proceeded to lay out a road in accordance with the terms of said act. No movement was made, however, towards its construction. On the 27th of February 1872, the legislature passed another act by which the same commissioners, or a majority of them, were authorized and directed, in the place and stead of the township supervisors, to take the charge of and carry through the opening and construction of the said road. They were also authorized to receive from the township road tax collectors and county treasurers, all taxes already paid in, or hereafter to come into their hands, and any money advances that may be made by individuals or companies which are applicable under the said act to the opening and construction of the said road. They are also authorized to grant certificates of indebtedness to any individual or company advancing money towards the construction of said road, and “ each and all of such sums shall be repaid on each such certificate with interest, through and by means of all the road taxes which are in and by the said act directed to be appropriated and applied to the opening and construction of the said state road, either by said commissioners receiving and paying .over said taxes on such certificates, or by the road supervisors or collectors of road taxes in the respective townships, crediting the taxes as they are hereby required to do from time to time, and as requested by any individual or company," whose lands are liable on any such certificate or certificates, or by both such methods, until all such certificates are paid off and the road is completed.” Shortly after the passage of this act, the commissioners proceeded to the construction of between three and four miles of this road. It appears to have been done at a large expense, and certificates of indebtedness to a considerable amount were issued to individuals or companies for money advanced in the construction of the road. David P. Thompson, one of the plaintiffs in error, is the treasurer and collector of the township of Porter, and since the passage of said last-mentioned act, has collected road taxes to the amount of $1831, from the individuals and companies at whose expense it is claimed said road is to be opened and constructed, under said Acts of Assembly. Upon the application of the commissioners the court granted a writ of peremptory mandamus against the township treasurer, requiring him to pay over the said sum of money to the said commissioners. Prior to this application of the commissioners to the court below, to wit, on the 9th day of June 1874, the legislature passed an act by which the third section of the Act of 27th of April 1869, and the whole of the Act of February 27th 1872, were repealed. This swept away all legislation providing for the construction of the road, and at the same time abolished the office of the commissioners, and raises the really important question in this cause, whether the holders of the certificates can enforce their rights through commissioners who have no longer a legal existence; who are functi officio. It must be conceded that this repeal did not affect the contracts of those advancing money on the pledge of the fund appropriated to the payment of their certificates. That was beyond the power of the legislature. But the repeal carried with it the office of the special commissioners, who merely exercised a part of the functions of the municipality. Their office being repealed, clearly they are not entitled to receive the money. They were mere municipal agents, subject to be removed by the repeal of the law which brought them into existence to perform merely municipal functions. The general road laws make ample provision for the construction of roads, collection of taxes, payment of debts and contracts, and all that is necessary to fulfil the obligations of the township in regard to the road or the creditors. On the repeal of the special commission, these duties fell back into the hands of the township officers. There is nothing to prevent the payment of the certificates as debts, or the crediting of the taxes upon them. The holders have, by their contract relation, the same right to demand payment out of the moneys collected for road taxes, or any surplus money on hand, and to have credit for their own taxes ; the remedy for the latter being in their own hands, to retain the taxes nolens volens. Under the constitutional provision forbidding the impairing of contracts, they were, as to all these matters, unaffected by the repeal; and their remedy against the township is ample by suit, and against the township supervisors and treasurer, and the county treasurer, by mandamus. The commissioners were but mere agents to receive and pay over the money to them, and if they failed or refused, the remedy of the certificate holder was the same only against them.

Being but mere municipal agents or officers for a special purpose, these commissioners were liable to be changed at the will of the law-making power. It would be a dangerous doctrine to hold that the officers, general or special, of a petty municipality like Porter township, were above the power that created them. The commissioners were but creatures of the law. They had no official life until it was breathed into them by the legislature, and the breath that created them can blow them away. It might as well be argued that the municipal officers of a city, township, borough, or county, could not be changed by law, and a new system of offices introduced, because the city or other municipality had contracted debts, or issued bonds, warrants or certificates. No one doubts the power of the legislature to repeal a municipal charter, or to divide or consolidate townships or counties, excepting so far as special legislation is forbidden by the new Constitution: Dillon on Municip. Corp., sect. 30, and note; Borough of Dunmore’s Appeal, 2 P. F. Smith 374. It was said by our brother Sharswood, in City of Erie v. Erie Canal Co., 9 P. F. Smith 177, that “the charter of a municipal corporation is not a contract within the protection contained in the prohibition of the Declaration of Rights against laws impairing contracts.” How much less in the protection afforded by the Constitution is a mere temporary commission, created to perform a function of a municipal corporation.? If the principal body be not protected against répeal, how can a mere member of it be entitled to a greater sanctity ? This subject was discussed most elaborately in the case of John B. Butler and others, Canal Commissioners, v. Pennsylvania, 10 How. 402. “The contracts (says Justice Daniel), designed to be protected by the tenth section of the first article of that instrument (the Constitution), are contracts by which perfect rights, certain, definite, fixed private rights of property are vested. These are clearly distinguished from measures or engagements adopted or taken by the body politic or state government for the benefit of all, and from the necessity of the case to be varied or discontinued, as the public good shall require.” After showing the inconvenience of any other doctrine, which would perpetuate bad government, he says: “ It follows then, upon principle, that in every perfect or competent government, there must exist a general power to enact and to repeal laws, and to create and change or discontinue the agents designated for the execution of those laws.” In Bank v. Knoop, 16 How. 369, 380, Justice McLean re-states these principles with equal force. The office of these commissioners is not essential to the remedy of the creditors. The township is the principal, and the commissioners mere agents, to receive and pay over money collected by and in the hands of its official custodian. The collectors receive and the treasurers hold the money. The duty of paying it over can as well be performed by the township officers as by the special commission. If the office of the commission cannot be repealed, the consequence must be that these commissioners may hold on after the repeal of their office until the last certificate be paid, whether it be one year or twenty years. On what principle can the creditors, if they were parties, which they are not, stay the hand of the legislature in merely changing the municipal agents ? If they can, no matter what objection lies to these men — they may be dishonest, insolvent or incompetent; their office may be obnoxious, hurtful or inconvenient, yet they cannot be displaced so long as one certificate is outstanding. This doctrine is without support in reason or authority, and its assertion would be as unsafe as it is novel. The principle is not denied that when the remedy is a part of the contract it cannot be taken away, but this, as all the authorities agree, is where the remedy is essential to the contract, and the latter cannot be executed without it. But legislation which simply changes the public hand which receives and pays out, does not interfere with the remedy.

It was urged, that though the office of the commissioners is repealed as to the public, that to the extent of the certificates for advances, they may be viewed as trustees who cannot he dis- • placed. Trustees of what ? There is no fund of which they are the custodians. There are no securities as to which they hold the legal title in trust for certain beneficiaries. The certificate holders have a claim against the township. The township is their debtor to that extent, with certain of its revenues pledged by law. for the payment of the debt. Here is simply, the relation of debtor and creditor, such as frequently exists between municipal corporations and its creditors. An examination of the Act of 1872 shows that no such special character was intended to be conferred upon these commissioners. They were “ authorized and directed in the place and stead of the supervisors, to take charge of and carry through the opening and construction of the state road in said act mentioned, and for this purpose forthwith to contract for the opening and construction,” &c., &c. “And to superintend and urge through the faithful performance of such contract and opening and construction of said road.” They were to receive and disburse taxes, and advances of money, as already stated. Here were public duties which the supervisors would have performed but for the substitution of the commissioners; they were in fact a portion of the duties of the township supervisors specially delegated to and conferred by the act upon these commissioners. The duties which they owed to the certificate holders were a part of their public duties as officers or agents of the township. They were no more the private trustees of the holders of the certificates, than supervisors, treasurers, or other municipal officers, are trustees for the creditors of their respective municipalities. They do not claim in the character of private trustees. The proceedings show that the claim set up at bar is for the public money to construct the road, and is based upon the continued existence of their office as commissioners. They make no special application on behalf of the certificate holders, and if they did, how could they divide the money collected generally between the work of construction and that of payment to the certificates ?

It is clear there is no private trust here. If there is any trust at all, it is only such as attaches to them as agents or officers of the township, and the trust itself is of a public nature, and for the public benefit. That trustees of this character may be removed has been expressly decided. Philadelphia v. Fox, 14 P. F. Smith 169, is a case directly in point. In that case a large number of trusts were held by the city of Philadelphia for charitable uses, the most noticeable of which was the one created by the late Stephen Girard. In 1869, an Act of Assembly was passed taking the direct control of these trusts from the city as trustees, and giving it to a board of fifteen persons, twelve of whom were to be appointed by the courts. This case was argued in this court by very eminent counsel, and evidently decided with great care. It was held that the trusts were charities ; that all charities are in some sense public ; that it was not competent for a mere municipal organization, which is made a trustee of a charity, to set up a vested right in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the state from changing it as the public interests may require, and that the Act of Assembly authorizing the judges of the courts to appoint trustees for the trust, under the wills of Stephen Girard and others, was constitutional. This branch of the case does not need elaboration. We are of opinion that these commissioners were mere officers or agents of the township; that the repealing Act of 1874 is constitutional, and as a legal deduction, that the office is now abolished. The commissioners having no longer a recognised legal existence, they have no standing in court, and no right to a mandamus against the plaintiff in error.

What has been said renders it unnecessary to discuss separately the case in which Barlow, county treasurer, is the plaintiff in error. The cases rest upon similar principles, and the same judgment will be entered in each.

The order and judgment of the court below awarding a writ of peremptory mandamus is reversed and set aside.