Perkins v. Slack , 86 Pa. 270 ( 1878 )

Paxson, J.,

filed the following dissenting opinion, in which Sharswood, J., concurred :—

Whatever we may think of its wisdom, no one at the present day doubts the legality of the Act of 5th of August 1870, Pamph. L. of 1871, p. 1548, creating the building commission. That question may be considered at rest. It follows that if said act remains in full force and unimpaired, the relators are entitled to their mandamus. But since its passage the fundamental law of the state has been changed, and two provisions introduced therein which seriously affect said act. Section 20 of article 8 of the constitution provides that, “ The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or intei-fere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or perform any municipal function whatever.” This command is addressed to the legislature, and speaks for the future only. It was not intended to derogate from the powers granted to special commissions created prior to the adoption"of the constitution. Then we have section 2 of article 15, which is as follows : “ No debt shall be contracted or liability incurred by any municipal commission, except in pursuance of an appropriation previously made by the municipal government.” This section was evidently intended to operate directly upon commissions existing at the time of the adoption of the constitution. Such construction is apparent from its terms. That it was so intended by the framers of the constitution clearly appears from an examination of the debates of the convention, vol. 6, p. 232-4. Public attention had already been drawn to the fact that irresponsible commissions, imposed upon the city by the legislature, and yet clothed with absolute control over the purse of the city in the prosecution of their work, were repugnant to our whole theory of government. It was known to the convention that the public buildings, at Broad and Market streets, had been projected upon a scale of magnifience better suited for the capítol of an empire than the municipal buildings of a debt-burdened city ; and that the time might come when their further prosecution would become an oppression upon the taxpayers too grievous to be born, unless the councils, the immediate representatives of the people, should have a power of control over the amount to be annually expended. The result has fully vindicated the wisdom of the convention. What then is the effect of this section of the constitution upon the Act of 1870 ? I agree that it does not repeal the act. It does not abolish the commission ; it permits the erection of the buildings to go on nnder their direction. Nay, more, I do not think it affects so much of the act as makes it the duty of councils to provide the means for their completion. But I think it equally clear under this section that it is for councils to say to what extent the means shall be supplied, excepting in so far as contracts have been made by the 'commission prior to the adoption of the constitution. That is to say, no new contract can be made by the commission after the adoption of the constitution until an appropriation to pay therefor shall have been previously made by councils. In other words, the effect is to give the control of the purse to the city, instead of the building commission. It was conceded upon the argument that the constitution has modified the Act of 1870 so far as to prevent the commission entering into any new contract without an appropriation, and that the greater part of the sum demanded was for new work not contracted for prior to the adoption of that instrument. This much is clear. But it was urged that because it is still the duty of councils to make appropriations, they are bound to appropriate any sum the commission may demand. I am unable to see the force of this reasoning. It is admitted the constitution prohibits the making of any new contract without a previous appropriation. True, say the building commission, we cannot make a contract, but we have the right to compel councils to appropriate whatever sum we demand and then we can contract. This view, in my judgment, is in direct conflict with the letter and spirit of section 2 of article 15 of the constitution, and its adoption by this court practically expunges said section from that instrument. For, if it. does not apply to existing commissions, it cannot apply at all, as the creation of any such special commission is prohibited for the future. I do not think the framers of the constitution or the people who adopted it intended a vain 'thing when they introduced this section. In view of the importance of this question I deem it my duty to place upon record my respectful but earnest dissent from the judgment of the majority of the court.