Opinion
September 27, 1933.
November 27, 1933.
Municipal corporations — Elections — Voting machines — Authorization by electors — Neglect of county commissioners — Awarding of contract by Secretary of Commonwealth — Mandatory duty — Availability of funds for payment — Acts of April 18, 1929, P. L. 549, and June 23, 1931, P. L. 1185.
1. Under the Act of April 18, 1929, P. L. 549, as amended by the Act of June 23, 1931, P. L. 1185, which prescribes that if the majority of qualified electors shall vote for the use of voting machines in a county, the county commissioners shall purchase for each election district of the county a sufficient number of voting machines, and that if the county commissioners shall not within one year have executed their contract for the purchase of such machines, then the Secretary of the Commonwealth shall forthwith notify the county commissioners that after the expiration of thirty days he will, on behalf of the county, execute such contract unless the county commissioners meanwhile shall have executed the same, and if, upon expiration of the thirty days, the county commissioners still have not executed the contract, the Secretary of the Commonwealth, on behalf of the county, shall thereupon execute such contract, the duty of the Secretary of the Commonwealth is mandatory, and the availability of funds for payment of the machines is immaterial. [64]
2. An injunction will not issue to restrain the Secretary of the Commonwealth from awarding a contract under Act of April 18, 1929, P. L. 549, as amended by the Act of June 23, 1931, P. L. 1185, on behalf of a county for the purchase of voting machines for use in the county, after notice to the county commissioners of his intention to do so, where the majority of the qualified electors have voted for the use of voting machines in the county, and have authorized an increase in the indebtedness of the county for the purpose of paying for the machines so authorized, and the county commissioners have failed to act within the prescribed time; and this is so even though the proceeds of the loan negotiated pursuant to the authority granted, have been used for other purposes and the county is without funds to pay for the voting machines, where there is no averment nor proof that the contract for the purchase of the machines will result in creating a debt in excess of the constitutional limit of the county. [58-68] Constitutional law — Local or special laws — Voting machines — Acts of April 18, 1929, P. L. 549, and June 23, 1931, P. L. 1185.
3. The Act of April 18, 1929, P. L. 549, as amended by the Act of June 23, 1931, P. L. 1185, relating to matter of voting machines, is not in conflict with article III, section 7, of the Constitution, which provides that the legislature shall not pass any local or special law regulating the affairs of the counties, cities, townships, wards, boroughs or school districts. [65-6]
Constitutional law — Delegation of legislative power — Voting machines — Acts of April 18, 1929, P. L. 549, and June 23, 1931, P. L. 1185.
4. The Act of April 18, 1929, P. L. 549, as amended by the Act of June 23, 1931, P. L. 1185, relating to the matter of voting machines, does not offend against section 20 of article III of the Constitution which provides that the legislature shall not delegate to any special commission any power to make, supervise or interfere with any municipal improvement, money, property or effects, or to perform any municipal function whatever. [66-7]
Constitutional law — Indebtedness of Philadelphia — Voting machines — Acts of April 18, 1929, P. L. 549, and June 23, 1931, P. L. 1185.
5. The Act of April 18, 1929, P. L. 549, as amended by the Act of June 23, 1931, P. L. 1185, relating to the matter of voting machines, does not offend against section 8 of article IX of the Constitution, as amended, which provides that the debt of the City of Philadelphia may be increased in such amount that the total city debt of said city shall not exceed ten per cent of the assessed value of taxable property therein. [67-8]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 13, May T., 1933, by plaintiffs, from decree of C. P. Dauphin Co., Equity Docket, No. 1011, Commonwealth Docket, No. 9, 1932, in case of James C. Clark et al., Commissioners of Philadelphia County et al. v. Richard J. Beamish, Secretary of the Commonwealth, et al. Decree affirmed.
Bill for injunction to restrain purchase of voting machines by Secretary of the Commonwealth. Before WICKERSHAM, J.
The facts are stated in the opinion of the lower court by WICKERSHAM, J., which is in part as follows:
This is an application by the plaintiffs for an injunction to restrain the defendants from making, executing or awarding a contract for the supplying of voting machines for the County of Philadelphia, so that the expense thereof may be charged to the City of Philadelphia or to the County of Philadelphia.
Plaintiffs filed an amended bill of complaint. The defendants filed two answers preliminarily objecting to the amended bill for the following reasons: "1. That it is defective for the want of a proper party plaintiff. 2. That not all of the plaintiffs are interested in the cause of action set forth in the bill. 3. That upon the facts averred, plaintiffs have a full, complete and adequate remedy at law. 4. That the bill seeks to control and review the acts of an executive officer of the Commonwealth of Pennsylvania by political subdivisions of the Commonwealth. 5. The bill fails to aver proper municipal action by resolution authorizing and directing institution of this proceeding. 6. That no authority, statutory or otherwise, gives this court jurisdiction of a proceeding of this kind. 7. That the amended bill of complaint fails to aver any basis whatever for including the Automatic Voting Machine Corporation as a party defendant and it does not appear in said bill of complaint that the Automatic Voting Machine Corporation is a necessary or a proper party defendant. 8. That the liability for all of the causes of action set forth cannot be asserted against all of the defendants named in the amended bill of complaint and no adequate reason appears why those causes should be added to promote the convenient administration of justice. 9. That the relief sought is political; the bill seeks the redress of no judicially remediable rights of the plaintiffs."
FINDINGS OF FACT.1. The electorate of Philadelphia County, at the general election held in November, 1929, by an overwhelming majority, indicated their will for the installation of voting machines in the entire county, under the provisions of the Act of April 18, 1929, P. L. 549, as amended by the Act of June 23, 1931, P. L. 1185.
2. The electors of the City of Philadelphia authorized said city to increase the indebtedness in the amount of $2,000,000, for the purpose of paying for the voting machines so authorized to be purchased; the loan was negotiated and the proceeds were placed in the consolidated loan fund of said city and, it is conceded, it was afterwards lawfully used by said city for other purposes.
3. On the 22d day of March, 1930, the Commissioners of the County of Philadelphia received bids for the supplying of voting machines and executed contracts with the successful bidders for the furnishing of 50 voting machines for use in the county.
4. On July 28, 1930, the county commissioners opened bids from various voting machine companies for the supplying of not more than 1,000 voting machines.
5. On August 18, 1930, the county commissioners executed a contract for the purchasing and delivery, on or before October 1, 1930, of 500 voting machines at the cost of $1,203.67 each.
6. On August 3, 1931, the county commissioners received bids from various voting machine companies for the supplying and furnishing of not more than 1,000 machines; however, these bids were subsequently rejected.
7. On August 24, 1931, the county commissioners awarded a contract for the supplying of 200 machines at $1,246.42 each, and which 200 machines Were delivered to the county on or before October 1, 1931.
The present proceeding is an endeavor to restrain the Secretary of the Commonwealth from awarding a contract and purchasing 800 voting machines, being the additional machines to furnish every election district, under the authority vested in him by the Act of April 18, 1929, P. L. 549, as amended on June 23, 1931. The relief prayed for by the complainants is based upon the allegations: "(a) That the advertisement published by Richard J. Beamish, Secretary of the Commonwealth, for supplying the County of Philadelphia with 800 machines is defective because it contains no notice as to the kind, size, or type of voting machines, on which bids are to be submitted; that it gives no notice that plans or specifications have been prepared for the use of proposed bidders; that it affords no comparable basis on which competitive bids may be submitted; and is such that no legal contract can be executed or entered into thereon (this latter contention has not been established by the evidence); (b) That the County Commissioners of Philadelphia County have represented and stated to the Secretary of the Commonwealth of Pennsylvania that it is their intention to comply with the Act of April 18, 1929, when it is practical and within their power to provide voting machines for the County of Philadelphia; (c) That the Controller of the County of Philadelphia has expressed to the Secretary of the Commonwealth his intention and purpose, in his official capacity, to advertise for bids for supplying such machines as soon as practically possible; (d) That the Secretary of the Commonwealth has failed to comply with the provisions of section 30 of the Act of June 23, 1931, in so far as the same requires the giving of 30 days' notice as to the intention to award, make and execute a contract for voting machines by him in behalf of the County of Philadelphia; and, (e) That neither the City nor the County of Philadelphia is, at this time, possessed of funds with which a contract or contracts may be entered into for the purpose of purchasing voting machines."
DISCUSSION.It becomes incumbent upon us, therefore, to refer briefly to the Act of April 18, 1929, as amended by the Act of June 23, 1931, in order that we may ascertain what powers are conferred upon the Secretary of the Commonwealth. After providing in section 3 of the act that the county commissioners may, upon their own motion, submit to the qualified electors of the county, or of any city, borough or township thereof, at any election, the question — "Shall voting machines be used in the (county, city, borough or township) of . . . . . .?" — it is provided in paragraph (b) of said section: "The county commissioners, upon receipt of a request from the council of any city or borough, or from the commissioners or supervisors of any township, . . . . . . or upon the filing of a petition with them signed by qualified electors of the county, city, borough or township, equal in number to at least one per cent of the total number of electors who voted in said county, city, borough or township at the preceding general or municipal election, but in no case less than fifty . . . . . . — shall at the next general, municipal or primary election, occurring at least sixty days thereafter, submit to the qualified electors of such county, city, borough or township, the question 'Shall voting machines be used in the (county, city, borough, or township) of. . . . . .?' " In paragraph (d) of said section it is also provided that after the vote is computed by the court "a copy thereof, certified by the prothonotary, shall forthwith be furnished to the Secretary of the Commonwealth and to the county commissioners." Section (f) of said section provides: "Whenever, under the provisions of this section, the question of the adoption of voting machines is about to be submitted to the electors of any county, city, borough or township, it shall be the duty of the county commissioners, or other authority which levies taxes for county purposes in such county, to ascertain whether current funds will be available to pay for said machines, if adopted and purchased, or whether they have power to increase the indebtedness of the county in an amount sufficient to pay for the same without the consent of the electors and, if such current funds will not be available and the power to increase the indebtedness of the county in a sufficient amount without the consent of the electors is lacking, it shall be the duty of the county commissioners, or other authority aforesaid, to submit to the electors of the county, in the manner provided by law, at the same election at which the adoption of voting machines is to be voted on, the question whether the indebtedness of such county shall be increased, in an amount specified by them, sufficient to pay for such voting machines, if adopted."
It appears from the evidence that the electors of Philadelphia County authorized a loan of $2,000,000, for the purpose of paying for voting machines; that that loan was negotiated; that the proceeds of it were placed in the Consolidated Loan Fund of Philadelphia County, and were used by the City of Philadelphia for other purposes. It was admitted by the Attorney General that the financial situation of the City of Philadelphia is not good and that it is improbable that the city would pay cash for these voting machines upon delivery, and that because of the diversion of this money they cannot immediately pay. It must not be overlooked that the act of assembly does not say that the County and City of Philadelphia should purchase machines if they could afford it. The mandate of the legislature is that they shall purchase voting machines if by a majority vote of the electors voting machines are desired; all of which appears to have been done, including the granting of a loan of $2,000,000, on the part of the electors, and that said loan was made, the money received, and diverted to other purposes. Section 4 of the aforementioned act, relating to the installation of voting machines, provides in paragraph (a) that if a majority of qualified electors voting on the question shall vote in the affirmative, the county commissioners shall purchase for each election district of the county a sufficient number of voting machines. Paragraph (b) provides that such voting machines shall be installed, either simultaneously or gradually, in the political subdivisions which adopt them. Paragraph (c) provides that if voting machines are installed gradually they shall be introduced, in the case of counties, in alphabetical order; by cities, boroughs and townships, so that they will first be used in the city, borough or township, the name of which is first in alphabetical order, and then in the city, borough or township, the name of which is next in alphabetical order, and so on. Paragraph (d) provides: "If . . . . . . the majority of the electors voting thereon shall have voted favorably thereon, and if the county commissioners shall not, within one year, have executed their contract or contracts for the purchase or procurement of voting machines for use at the next general, municipal or primary election, occurring at least one year and sixty days after the referendum, then the Secretary of the Commonwealth shall forthwith, in writing, notify the said county commissioners that, after the expiration of thirty days, he, under the authority of this act, on behalf of the said county, will award, make, and execute such contract or contracts, unless the said county commissioners meanwhile shall have made and executed the same." Paragraph (e) provides: "If, upon the expiration of said thirty days, the county commissioners still shall not have made and executed the contract or contracts aforesaid, the Secretary of the Commonwealth, on behalf of the said county and upon the approval of the Attorney General as to form, shall thereupon award, make, and execute a contract or contracts for the purchase or procurement of one voting machine, approved as required by this act, for each election district within each such county, city, borough or township, and the cost of such voting machines, including the delivery thereof, and of making and entering into the said contract or contracts, including the preparation and printing of specifications and all other necessary expense incidental thereto, shall be the debt of the said county, and upon the certificate of the Secretary of the Commonwealth, it shall be the duty of the controller, if any, to allow, and of the treasurer of the county to pay, the sum out of any appropriation available therefor, or out of the first unappropriated moneys that come into the treasury of the county." Paragraph (f) provides: "Provided, That if the county commissioners or the Secretary of the Commonwealth, as the case may be, shall find it impracticable to procure a voting machine or voting machines for each election district of the county, city, borough or township, for use at the general, municipal or primary election then next ensuing, they or he shall provide as many machines as it shall be practicable to procure, and, as soon thereafter as practicable, shall provide the remainder of such machines required hereunder. The machines shall be installed in the election district or districts, in the manner provided for the gradual introduction of voting machines in paragraph (c) of this section."
It will be observed that the duty of the Secretary of the Commonwealth as prescribed by the legislature is mandatory. The words "shall notify" and the words "shall award contracts" leave no option on the part of the Secretary of the Commonwealth. This is a positive legislative mandate directed to him by two acts of the legislature requiring him to proceed as above indicated. The matter of the availability of funds for payment is immaterial.
The stipulation of counsel requests the court to first pass upon the answers of the defendants preliminarily objecting to the plaintiffs' bill of complaint, which we will now proceed to do. Passing the first three preliminary objections which we think cannot be sustained, we come to consider the fourth, in which it is objected "that the bill seeks to control and review the acts of an executive officer of the Commonwealth of Pennsylvania by political subdivisions of the Commonwealth." If there was nothing else in plaintiffs' bill of complaint except paragraph 54, we think this contention could be sustained (Potts v. Phila., 195 Pa. 619), for the reason that courts of equity in Pennsylvania do not possess the general powers of a court of equity but only such as have been conferred upon them by statute: Pitcairn v. Pitcairn, 201 Pa. 368; Bakewell Kerr v. Keller, 11 W. N.C. 300; Bridesburg Mfg. Co.'s App., 106 Pa. 275; Dohnert's App., 64 Pa. 311; Davis v. Gerhard, 5 Wharton 466; Gilder v. Merwin, 6 Wharton 522, where the subject is discussed at great length by Justice SERGEANT; Whyte v. Faust, 281 Pa. 444; Wilson v. Blaine, 262 Pa. 367. However, paragraph 54 of the amended bill of complaint raises a question of the constitutionality of section 4 of the Act of April 18, 1929, as amended by section 3 of the Act of June 23, 1931, purporting to confer upon the Secretary of the Commonwealth of Pennsylvania the right to purchase and supply voting machines for any county in Pennsylvania at the cost of said county, or for the County of Philadelphia at the expense of the City and County of Philadelphia. We think the plaintiffs have a legal right to raise the constitutionality of section 4 of the Act of 1929, and its amended Act of 1931, and that this court has jurisdiction to consider and pass upon this objection. It is contended by counsel for the plaintiffs that the Act of 1929 as amended by the Act of 1931, relating to the matter of voting machines is in conflict with article III, section 7 of the Constitution, which provides that the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts. Assuming that the method of voting is an affair of the county and other municipalities of the Commonwealth, and further assuming that the requirements that the voting must be done by the use of machines is a matter regulating the affairs of such municipalities, it still follows that the acts of assembly in question are neither local nor special laws. They apply to all the cities, counties and other municipalities in the State, alike; the opportunity is given to all of them to adopt the use of voting machines in the same way, and therefore there is no tendency to diversity, but rather abundant provision for uniformity: Wheeler v. Phila., 77 Pa. 338; Seabolt v. Northumberland Co. Commrs., 187 Pa. 318; Rose v. Beaver Co., 204 Pa. 372; Davis v. Clark, 106 Pa. 377; Clouser v. Reading City, 270 Pa. 92; Baldwin Twp.'s Annexation, 305 Pa. 490. The fact that the opportunity is given for municipal action providing for the adoption of voting machines, and power vested in the Secretary of the Commonwealth only after failure of the local authorities to act, does not tend to diversity but distinctly tends to uniformity. Where the municipal authorities do not act then the Secretary of the Commonwealth acts in order to bring the question of suffrage into uniformity with those who have acted: Wheeler v. Phila., supra; Seabold v. Northumberland Co. Commrs., supra; Baldwin Twp.'s Annexation, supra. A careful study of the contention on the part of the plaintiffs convinces us that the acts under consideration do not offend against the provisions of the Constitution.
It is further contended by plaintiffs that the Act of 1929, and the amending Act of 1931, offend against section 20 of article III of the Constitution, which provides, the General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere 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 contention overlooks the well-established principle of law that "the Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend": Baldwin Twp.'s Annexation, supra. We are not convinced that the Secretary of the Commonwealth is a special commission within the meaning of this section and article of the Constitution: Kraus v. Phila., 265 Pa. 425. He is an officer of the Commonwealth designated by the legislature to carry into effect the voting machine Acts of 1929 and 1931, upon failure of the election district to do so. Under said acts the Secretary of the Commonwealth has nothing to do with any "money, property or effects" belonging to the County of Philadelphia. See Ward's App., 289 Pa. 458; Walnut Quince St. Corp. v. Mills, 303 Pa. 25. In a case of this kind courts do not pass upon legislative wisdom, but upon legislative power: Baldwin Twp.'s Annexation, supra. We find, therefore, that the acts in question do not offend against section 20 of article III of the Constitution.
The last objection is that the acts under consideration offend against section 8 of article IX of the Constitution, as amended November 2, 1920, relating to the indebtedness of Philadelphia, and which provides, inter alia, that the debt of the City of Philadelphia may be increased in such amount that the total city debt of said city shall not exceed ten per cent upon the assessed value of taxable property therein. The testimony shows that the City of Philadelphia is heavily indebted by contracts, mandamuses and otherwise, and that it is not now able to meet that indebtedness, but there is no allegation or proof that the City of Philadelphia has exceeded or would exceed the constitutional limitation of indebtedness by the purchase of four hundred or eight hundred voting machines, even though it has no money immediately available to pay for them. We are of opinion that the acts of assembly in question do not violate section 8 of article IX of the Constitution. It might be that the contract entered into by the Secretary of the Commonwealth would result in creating a debt for the City of Philadelphia in excess of the constitutional limit; that is to say, in order to pay for the machines purchased under the contract the city would be required to borrow in excess of the constitutional limitation. If the contract made by the Secretary of the Commonwealth has the effect of imposing such unconstitutional indebtedness upon the city, a taxpayer, or perhaps the city, representing all the taxpayers, might attack the contract as void. But the constitutionality of the contract has not been raised in the plaintiffs' amended bill and we are not considering that question. All that the plaintiffs aver is that the acts of assembly are unconstitutional and that contention we overrule. It therefore follows that the answer raising preliminary objections to the amended bill of complaint must be sustained and the bill dismissed at the cost of the plaintiffs.
Preliminary objections to amended bill of complaint sustained and bill dismissed. Plaintiffs appealed.
Error assigned, inter alia, was decree, quoting record.
William T. Connor, with him T. B. K. Ringe, Assistant City Solicitor, and David J. Smyth, City Solicitor, for appellants.
Wm. A. Schnader, Attorney General, with him Herman J. Goldberg, Deputy Attorney General, and Harris C. Arnold, Deputy Attorney General, for appellees.
Argued September 27, 1933.
Recognizing the importance of this case to the City and County of Philadelphia and to their taxpayers, as well as to the citizens of the entire Commonwealth, we of our own motion ordered its reargument, when the contentions of both sides were fully and ably presented. After mature consideration, our conclusion is that the determination arrived at by the court below is right, and we affirm on the portions of its opinion which appear in the reporter's notes. It is our view, too, that appellants' allegation as to the unconstitutionality of the act being not sustained, the bill disclosed no cause of action on which the court could grant relief and that, accordingly, the dismissal of the bill was proper. Certain questions raised by appellants before us and not covered by the court's opinion, we deem to be immaterial in view of our determination on the main question in agreement with the conclusions reached below.
Decree affirmed at appellants' cost.