Commonwealth v. Hallberg
Commonwealth v. Hallberg
Opinion of the Court
Opinion by
Roy W. Hallberg was arrested on an information charging him with violation of section 905 of The Vehicle Code of May 1, 1929, P. L. 905, as amended, in that he allegedly operated over a state highway route in Somerset County a motor vehicle which was in excess of the maximum width permitted by law without having obtained a permit authorizing such operation. A hearing was had before a Justice of the Peace as the result of which judgment was entered for the Commonwealth and a penalty of $50.00 and costs, or an alternative sentence of ten days in the county jail, was imposed. Hallberg appealed to the Court of Quarter Sessions of Somerset County, where a hearing was had de novo. The defendant demurred to the evidence and moved to quash the information; the court granted this motion. The Commonwealth appealed to the Superior Court, which affirmed the order of the court below. We thereupon allowed this appeal.
The question involved turns entirely upon the effect to be given to section 1 of the Act of June 5, 1937, P. L. 1718, amending section 905 of The Vehicle Code. Section 905, before amendment, contained a subsection, (a) , which provided that the Secretary of Highways and local authorities in their respective jurisdictions might, under certain circumstances, issue a special permit authorizing the applicant therefor to operate a vehicle of a size and weight exceeding the maximum specified in the act. It also contained a subsection, (b) , which provided that in the event of a catastrophe or accident affecting the public safety or convenience such a permit might be issued subsequent to the operation or movement of the vehicle. It further contained a paragraph entitled “Penalty,” which provided that any person operating a vehicle of a size or weight ex
An Act of June 22, 1931, P. L. 751, had amended section 905 in respects here immaterial, but it continued subsection (b) and the penalty paragraph unchanged.
An Act of July 16, 1935, P. L. 1056, had purported to amend only subsection (a) of section 905; accordingly subsection (b) and the penalty paragraph were not set forth in that amendatory act.
Then came the Act of June 5, 1937, P. L. 1718, here in question. It purported to amend section 905; it did add a provision to subsection (a), but it did not set forth subsection (b) and the penalty paragraph at all.
Defendant contends that the failure to include the penalty paragraph in the 1937 Act amounted to an abrogation thereof from The Vehicle Code. To support this contention he points to Article 3, §6, of the Constitution, which provides that “No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length,” and to section 81 of the Statutory Construction Act of May 28, 1937, P. L. 1019, which provides that “Whenever a law re-enacts a former law, the provisions . . . only of the former law as are omitted from the re-enactment shall be deemed abrogated, ...” In our opinion neither of these provisions justifies the reliance placed thereon by defendant. On the contrary, the constitutional provision requires that so much of the law as is amended shall be published at length; in the present instance the announced purpose was to amend the entire section
We are of opinion, therefore, that the attempted amendment of section 905 by the Act of June 5, 1937, P. L. 1718, is invalid because of its failure to comply with the constitutional and statutory requirements, and therefore that the entire section remained in force as it existed prior to that act.
The judgment of the Superior Court affirming the quashing of the information against the defendant is reversed, and the record is remanded to the Court of Quarter Sessions of Somerset County for further proceedings.
This provision was obviously aimed to change the previous practice of printing the existing law in addition to the law as amended.
House Rule 20 is exactly to the same effect as section 71 of the Statutory Construction Act as well as the Act of March 16, 1923, P. L. 11, which the Statutory Construction Act repealed and superseded. The Act of 1923 expressly referred to the constitutional provision, and the purpose of its enactment was to carry out the mandate of that provision.
Dissenting Opinion
Dissenting Opinion by
How the majority opinion reaches its conclusion in the light of the Constitution and of §81 of the Statutory Construction Act of 1937, and without overruling prior decisions of this Court is to me absolutely incomprehensible.
The majority opinion has not one but three insurmountable hurdles to jump — the Constitution, and §81 of the Statutory Construction Act, and the prior deci
The Constitution of Pennsylvania, Art. Ill, §6
In Com. v. Cooper, 277 Pa., supra, this Court said (page 559-560): “Perhaps petitioner was misled to the remarkable conclusions stated, by reason of the fact that not unusually an amendatory act quotes verbatim
“The words ‘only’ and ‘so much’ in Article III, section 6, of the Constitution, necessarily carry with them the idea that a later statute will be valid, although the amendment is made ‘by reference to [the] title’ of the act to be amended, if also ‘so much’ of it ‘as is revived, amended, extended or conferred shall he reenacted and published at length’. Barrett’s App., 116 Pa. 487, sometimes cited as deciding differently, has no such effect. There it was attempted to amend a statute, without either quoting it or reenacting it as it was to he when amended, although the purpose was simply to add to the original statute, every part of which was intended to continue in force.
“The true position is as stated in Wilson v. Downing, 4 Pa. Superior Ct. 487, 493, where, after citing a similar provision of the Constitution of Ohio, it quotes with approval the following extract from the opinion in Lehman v. McBride, 15 Ohio 573, 602-3: ‘ “As we understand this clause of the Constitution, it requires, in the case of an amendment of a section or sections of a prior statute, that the new act shall contain, not the section or sections which it proposes to amend, but the section or sections in full as it purports to amend them. That is, it requires, not a recital of the old section, hut a full statement, in terms, of the new one
Parenthetically, §71 of the Statutory Construction Act of 1937 (which republished a similar section in an act of 1923) could not change the Constitution of Pennsylvania even if that had been its purpose, but as we shall later demonstrate, it made no attempt to do so.
What then was the settled construction of Article III, §6 of the Constitution prior to 1923? Com. v. Cooper answers that question — the constitutional mandate requires not a recital of the old section hut a full statement of the new one. This is so reasonable and sound that if is difficult to understand how anyone could question it. Again in Wilson v. Downing, 4 Pa. Superior Ct., supra, an amendatory act was sustained and the Court in discussing Article III, §6 of the Constitution said: “What is meant by these words is, that all statutes shall be self-explanatory and complete in their provisions, Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, and this act comes up to that requirement. . . . . this clause of the constitution, ... requires, in the case of an amendment of a section or sections of a prior statute, that the new Act shall contain, not the section or sections, which it proposes to amend, hut the section, or sections in full as it purports to amend them. That . is, , it requires, not a recital of
In Titusville Iron Works v. Keystone Oil Co., this Court said (p. 634): “. . . the Constitution of 1874, section 6, of article III., . . . requires all statutes to be self-explanatory and complete in their provisions,. . .
Nevertheless, in direct conflict with Com. v. Cooper and with the aforesaid opinions and decisions of this Court, the majority opinion establishes a new rule, a new construction of the Constitution when it says “If it had really been intended to eliminate subsection (b) and the penalty clause . . . the entire [oid] section 905, had to be published at length if the constitutional mandate was to be observed.” This is so unreasonable that with due deference it seems to be in the language of the Statutory Construction Act, absurd. This construction of Article III, §6, was flatly rejected by this Court as recently as 1951 in U. S. Steel Co. v. Allegheny County, 369 Pa., supra. In that case the County contended that the amendment of July 15, 1935 which restated verbatim and reenacted and republished §518 of an earlier act and then added an additional provision thereto, merely restated and republished the original §518 for the sole purpose of complying with Article III, §6 of the Pennsylvania Constitution. This Court in its opinion on this point said (p. 435) : “We disagree Avith appellant’s ingenious but specious interpretation. We are convinced that the original Section 518 Avas restated verbatim in accordance Avith the requirements of Article III, §6 of the Constitution for the piirpose and with the legislative intent to re-enact the original section with a new provision added.”
In other Avords, the constitutional mandate requires not a restatement of the old section which Avould be unnecessary and, Avithout further explanation, Avould only create ambiguity, confusion and chaos; it requires
If the majority opinion on this point is correct, then the constitutional mandate and especially the words “so much thereof” are, we repeat, meaningless, and the decision in Com. v. Cooper, and in all the other cases hereinabove cited which are diametrically opposed to the majority opinion were wrong and all these cases must be overruled.
Let’s look a little further and see some of the results which necessarily flow from the constitutional interpretation now adopted by the majority. If the legislature intended to amend a section which contained 20 subsections by altering the first subsection and eliminating the last subsection, and if pursuant thereto it published the first subsection as changed and then restated verbatim the next 18 unaltered subsections, but intentionally omitted the last or 20th subsection, the majority opinion would hold that the entire section as thus amended was not published in full (either before or after the Act of 1923) and therefore the entire amendatory act, with all its 19 complete subsections which were published at length, was unconstitutional and void. Even if this were not contrary to all the prior decisions of this Court, how can anyone say that such a construction is reasonable or sound?
If the legislature wished and intended to continue the penalty provision in §905 they could easily have done so either (1) by amending sub section 905a as they did in the Act of 1935, in which event the new subsection 905a would be published in full and the penalty provision would have remained the law without restating or republishing it; or (2) by amending §905 and restating or repeating in full the section as amended, including the unaltered penalty provision_, just as they did when they amended §906 in this same amendment of 1937, and just as they did when they amended §905 in the Act of June 22, 1931, P. L. 751.
If on the other hand the legislature wished to abrogate the penalty provision in §905 they could have validly and constitutionally done so in a number of ways: (1) by restating or reenacting and publishing at length the section or new law as they desired it thereafter to be, omitting the penalty clause; or (2) they could republish the entire section and place the penalty provision in brackets; or (3) they could have expressly repealed the penalty clause; or (4) they could repeal the penalty clause by implication.
It follows as day follows night that the part of the section or law which the legislature did not reenact and publish, i.e., left out or omitted, is no longer the law. Moreover, our construction is likewise in accord with — Avhile the majority opinion is directly in the teeth of- — §81 of the Statutory Construction Act which complements Article III, §6 of the Constitution and clearly applies to and specifically rules the present case. It provides: “Whenever a law re-enacts a former law, the provisions common to both laws shall date
Contrary to the majority opinion, the word “omit” —unless otherwise defined — has been, up to now, so clearly understood by laymen and Courts alike as to need no definition; if, however, a definition is desired, it means to “leave out”, or “unmention”, or “to abstain from inserting . . .”: Webster’s New Collegiate Dictionary. The legislature accordingly left out what they wanted to omit and published the act in full as they wanted it to be from the date of the amendment, thus complying with both the Constitution and §81. But the majority opinion ignores the clear and universally accepted meaning of the word “omit” and distorts it to mean “to bracket”; and since the “printer” or his employee did not restate the penalty clause and place it in brackets, the majority opinion holds it was not omitted and the entire amendment falls.
The fallacy of the majority opinion which is based almost entirely upon §71 of the Statutory Construction Act, is apparent from the language of that section itself. The section is a direction to the Secretary of the Commonwealth as to how amendatory acts shall be printed and published. Parenthetically, we reiterate: How is it possible to place such a section above the Constitution of Pennsylvania, or even above §81? Section 71 provides as follows: “Printing and Interpretation of Amendatory Laws. — The Secretary of the Commonwealth shall, in printing amendatory laws, cause to be printed the section or part of the law only as re-enacted.
“In ascertaining the correct reading, status and interpretation of an amendatory law, the matter inserted within brackets shall be omitted, and the matter in italics shall be read and interpreted as part of the law.”
A careful analysis of §71 demonstrates (a) that it is a directive to a printer as to how an act shall be published, and (b) further demonstrates by its own language that it is not contradictory to, but may be harmonized with, §81. While it directs the Secretary to cause to be printed between brackets provisions of the existing laws which have been eliminated by the adoption of the amendment, it adds pertinently and importantly: “In ascertaining the correct . . . interpretation of an amendatory law, the matter within brackets shall be omitted, . . .”. In other words, the part or subsection which the legislature omitted should be published by the printer in brackets; but as far as interpreting the act is concerned, the bracketed part should be considered as if omitted, thus reaching exactly the same result as occurs under §81 which provides that what is omitted is to he considered as abrogated.
It clearly follows that the unintentional or intentional lack of compliance with §71 by an employee of the office of the Secretary of the Commonwealth or of the printer could not possibly alter the legal effect or interpretation of the legislative act under the Constitution or under §81 or even because of the mechanical directions of §71.
It is crystal clear (1) that §905 as amended and published at length as the legislature desired and intended it to be, is unquestionably valid and constitutional; and (2) that the penalty provision which was omitted by the legislature from the recital or statement of the new law was without any doubt abrogated!
For each and all of these reasons, I would affirm the unanimous decision of the Superior Court which in turn affirmed the decision of the Trial Judge and the Court en banc.
“No law shall be . . . amended, or the provisions thereof ex - tended . . ., by reference to its title only, but so much thereof
Italics throughout, ours.
Since §803 imposed a $50. penalty for overweight, the legislature evidently decided it was unfair to impose an addtional $50. penalty for failure to obtain a special permit (§905 as amended) to transport an overwéight load.
We note further that irrespective of the intention of the legislature, an entire amendatory act might be declared unconstitutional by this Court because the title was defective or because the act was too 'vague and uncertain, or conflicting and incon
Reference
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- Commonwealth, Appellant, v. Hallberg
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