In re Tuberculosis Hospital.

be mandatory and must be read "shall." He cites Endlich on the Interpretation of Statutes, § 310, as follows: "Whenever the act is to be done for the benefit of others, the word 'may,' or any of its equivalents, simply confers a power or capacity to do the act. It is facultative, not permissive, and neither by its own connotations nor by force of any legal principle does it necessarily imply an option to abstain from doing the act. On the contrary, it is a legal, or rather a constitutional, principle that powers given to public functionaries or others for public purposes or the public benefit are always to be exercised when the occasion arises." He also cites Com. ex rel. Hamilton v. Select and Common Councils of Pittsburgh, 34 Pa. 496, where the court held on page 513: "In a statute, the word may means must or shall in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure, that power should be exercised." He also cites Supervisors v. United States, 4 Wallace, 435, where it was held, on page 436, that when a power or authority is given by statute to public officers in permissive language, so that they "may, if deemed advisable," do a certain act, such as levy a tax for a special purpose, "the language used will be regarded as peremptory. . . . If public interests or individual rights call for its exercise, it must be considered as peremptory. . . . What they are empowered to do for the public or a third person, the law requires shall be done." The same subject is discussed at great length in the late case of Investors Realty Co. v. Harrisburg, 82 Pa. Superior Ct. 26, where we have an elaborate opinion expressing the views of a majority of that court, and an equally elaborate one expressing the views of a minority of three members of the court. The case went to the Supreme Court and is reported in 281 Pa. 200. Reversing the Superior Court, the Supreme Court said: "The Court of Common Pleas, in its opinion, entirely ignored the Act of July 5, 1917, P. L. 682. . . . When the case reached the Superior Court, however, the statute became the storm-centre of controversy, and the majority decided that, although it was in form permissive, it was in legal effect mandatory, and, hence, plaintiff was entitled to recover. It is not our purpose to enter the lists on this interesting subject, since we are of opinion that plaintiff cannot recover, by virtue of the statute, no matter which of the two conflicting views is correct. . . . It follows that whatever view is taken of the meaning of the statute itself, plaintiff cannot recover under it; if it is permissive only, because the city has not authorized the refunding of the money; if it is mandatory, because this is not clearly expressed in the title." We think, however, that in the present case, after the voters of the county have declared their wish in the premises, and where the public interest calls for an exercise of action on the part of the court and on the part of the county commissioners for the public good, the 12th section of the Act of 1925 must be held to be mandatory.

And now, April 5, 1926, the prayer of the petitioners is granted and the following are appointed members of the advisory board of the tuberculosis hospital to be established in this county under the provisions of the Act of March 23, 1925: Dr. E. M. Green, for a term of five years; Dr. B. Rush Field, for a term of four years; Mrs. Elizabeth L. Meyers, for a term of three years; Robert Gerstell, for a term of two years; H. S. Snyder, for a term of one year.

NOTE.-The substance of the opinion of Judge Bechtel in In re the Acquiring of a Site for and Construction, Equipment and Management of a County Hospital for the Treatment of Persons Afflicted with Tuberculosis, under the Act of Assembly of Pennsylvania of May 20, 1921, P. L. 944, and its supplement, being Act No. 31, of April 3, 1923, the case referred to in the above opinion, was as follows:

In re Tuberculosis Hospital.

BECHTEL, P. J., Oct. 6, 1924.-A petition was filed in this court Feb. 14, 1924, setting forth, inter alia, that a majority vote was cast in the November election of 1922 by the citizens of Schuylkill County, under the Act approved May 20, 1921, P. L. 944, in favor of acquiring a site for the construction, equipment and management of a county hospital for the treatment of persons afflicted with tuberculosis. That section 2 of said act was amended by Act of April 3, 1923, P. L. 52. That said acts require the appointment of a board of trustees, consisting of five members, one of whom shall be a physician appointed by the Court of Common Pleas, for carrying out the purposes of said acts.

That no board of trustees has as yet been named to act in conjunction with the county commissioners and the county controller in proceeding to have plans and specifications made and to select the site for said hospital.

The petition prayed the court to make the appointment of the said board of five trustees in accordance with the terms of said acts. To this petition was filed an objection on behalf of the county commissioners, objecting to the appointment of trustees as aforesaid, for the reason that the Act of 1921, supra, and its amendment, the Act of 1923, supra, is unconstitutional, in that it offends against the provisions of article iii, section 20, of the Constitution, and article xiii, section 2, of the Constitution. The question, therefore, is, do these acts offend against the provisions of the Constitution and are they, therefore, unconstitutional?

In approaching consideration of this question, we feel that we cannot do better than quote from the language of the Supreme Court in Com, ex rel. Brown v. Cumbert et al., 256 Pa. 531. In discussing the constitutionality of the act authorizing the establishment and maintenance of schools for the care of certain female children in counties containing a population of not less than 750,000 and not more than 1,200,000 inhabitants, it is there said: "We approach the consideration of the question before us fully realizing that a decision adverse to the act will occasion deep regret, especially among those whose disinterested zeal on behalf of a dependent class has contributed largely to the passage of the act. This much we may be

permitted to say, that, as citizens of the Commonwealth, they would have just cause for deeper regret should the court before which the question is brought for adjudication disregard plain and positive constitutional requirements in order that an act of assembly, because of its beneficial aim, might be sustained."

Counsel for the county contend that the 3rd, 4th, 5th and 7th sections of the Act of 1921 and the amended section of the Act of 1923 are unconstitutional. These sections are as follows:

"Section 3. Such hospital shall be managed by a board of trustees, consisting of five members, who shall be electors of the county, one of whom shall be a licensed physician. Such trustees shall be appointed by the Court of Common Pleas, one for a term of five years, one for a term of four years, one for a term of three years, one for a term of two years and one for a term of one year, or until their successors are appointed and have qualified. All appointments thereafter shall be for a full term of five years. All vacancies in the membership of the board shall be filled by the Court of Common Pleas, upon the petition of the remaining members of the board.

"The board of trustees may employ such physicians, nurses and other employees as may be necessary to properly conduct such hospital, and shall fix their compensation, which shall be paid from the county treasury.

"The board of trustees shall make general rules and regulations for the management of the hospital, and are authorized, subject to the approval of the county commissioners, to undertake such co-ordinated activities as will promote the usefulness of the hospital in the prevention of tuberculosis. They shall serve without compensation, except that actual expenses in connection with their service shall be paid.

"Section 4. Every hospital established under this act shall be for the benefit of all of the inhabitants of such county afflicted with tuberculosis, and they shall be entitled to occupancy, nursing, care and attendance according to the rules and regulations prescribed by the board of trustees. The board of trustees may exclude from the use of the hospital any persons who wilfully violate any rules or regulations.

"Section 5. The board of trustees may collect, from patients admitted to the hospital or from persons legally responsible for their maintenance, reasonable compensation for the treatment of such patients. They may also give free treatment to such persons as are unable to pay.

"All moneys received for the treatment of patients or by gift shall be paid into the county treasury, and shall be used only for the maintenance of such hospital:

In re Tuberculosis Hospital.

and the said county commissioners are hereby authorized and empowered to receive contributions, donations, property and trust funds for the erection and maintenance of tuberculosis hospitals provided for in this act.

"Section 7. The county commissioners shall levy an annual tax sufficient for the support of such hospital, which, when collected, shall be paid into the county treasury, and such moneys shall be paid from the county treasury by warrant of the county commissioners, after itemized vouchers have been furnished by the board of trustees."

Amended section of the Act of 1923 provides as follows:

"Section 2. If a majority of the voters, voting upon such questions at such election, shall be in favor of the establishment of the hospital, the county commissioners, county controller, where such office exists, and board of trustees, hereafter provided for, shall have plans and specifications prepared and shall select and (purchase) acquire a site for such hospital by purchase or condemnation, with the same power and with the like procedure as land is now acquired under existing laws by school districts, for school purposes, the county commissioners exercising the authority exercised by school directors for that purpose. Such plans and specifications and the location of such site shall be approved by the commissioner of health before the construction of any building is commenced.

"Upon the approval by the commissioner of health of the plans and specifications and the location of such hospital, the hospital shall be constructed and equipped under the direction and supervision of the board of trustees, the county commissioners, the county controller, where such office exists, and in the same manner as other county buildings are constructed and equipped."

The sections of the Constitution which it is claimed these acts violate are article iii, section 20, 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."

And article xiii, section 2, which provides: "County officers shall be elected at the general elections, and shall hold their offices for the term of three years, beginning on the first Monday of January next after their election and until their successors shall be duly qualified. All vacancies not otherwise provided for shall

be filled in such manner as may be permitted by law."

In approaching the consideration of the question of the constitutionality of these acts, it is well to bear in mind the general rules as laid down by our higher courts. It has been said that: "The legislature intended that the law on the subject-matter of the bill should be operative, and if it can be done, it is the duty of the court to reconcile the different parts of the law rather than to declare it void and frustrate the legislative intention. All the presumptions are in favor of the constitutionality, and nothing but a clear violation of the Constitution will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void:" Com. v. Moore, 2 Pa. Superior Ct. 162; Com. v. Crowl, 245 Pa, 554.

Again, it has been said: "One who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond a doubt that it is so:" Gottschall v. Campbell, 234 Pa. 347, 357.

Let us now consider the provisions of the acts in question.

Section 20, amended, provides that in the event of the favorable decision by the electors, the county commissioners, county controller and board of trustees shall have plans and specifications prepared and shall select and acquire a site for such hospital by purchase or condemnation. Such plans shall be approved by the commissioner of health, and upon such approval the hospital shall be constructed and equipped under the direction and supervision of the board of trustees, the county commissioners and the county controller in the same manner as other buildings are constructed and equipped. It must be borne in mind that the board of trustees consists of five members. It will thus be seen that by the addition of these five members to the commissioners and controller the act places it within the power of the board of trustees to overrule the board of commissioners and the county controller and select such site and direct such building as they may determine. The effect of this section is to lodge in the board of trustees this power which heretofore was possessed by the county commissioners and the county controller. They may acquire any site pleasing to themselves and direct such building as they may deem proper without regard to the expense placed upon the county.

In re Tuberculosis Hospital.

Section 3 provides that such hospitals shall be managed by the said board to be appointed by the Court of Common Pleas in the manner prescribed in the act, and provided that such board may employ such physicians, nurses and other employees as may be necessary to properly conduct such hospital, and shall fix their compensation, which shall be paid from the county treasury. It wil thus be seen that the existing municipal authorities do not participate at all in the management of the hospital, the employment of physicians or other employees, the number to be employed or the compensation which they shall receive. All of these charges are fixed by the board of trustees independently of the municipal authorities, and must be paid out of the county treasury.

Section 4 gives to the said board the right to make such rules and regulations as they may deem necessary and to exclude from the use of the hospital any persons who wilfully violate any of said rules or regulations.

Section 5 gives the board the authority to collect from patients admitted to the hospital or from persons legally responsible for their maintenance reasonable compensation for the treatment of such patients, and also permits them to give free treatment to such persons as are unable to pay. Inferentially, it will be seen that the board of trustees have the power to determine who shall pay, what amount shall be paid and who shall receive treatment free of charge.

Section 6 provides that the county commissioners may incur or increase the indebtedness of the county to an amount sufficient to pay the cost of purchasing a site, of constructing and equipping the hospital by the issue of bonds, and provides for the levying of a tax to an amount necessary to pay the interest and sinking charges of said bonds.

Section 7 provides: The county commissioners shall levy an annual tax for the support of such hospital, which shall be paid into the county treasury, and such moneys shall be paid from the county treasury by warrant on the county commissioners after itemized vouchers have been furnished by the board of trustees. It will be noted that the warrants are to be drawn after the itemized vouchers have been furnished. The act nowhere gives to the commissioners or the controller the power to disapprove any of those bills or refuse to pay the same, but makes it the duty of the county commissioners to pay after itemized bills have been furnished, There is nowhere any provision that an estimate shall be furnished to the municipal authorities of the probable expenses of the maintenance and operation of the hospital for the ensuing year to permit them either to ascertain the amount of money to be raised by taxation or to make an appropriation for said expenses. The municipal authorities, therefore, have no power to curb or regulate the expenses incident to the acquiring of the site, the construction of the hospital, the number of employees to be employed, the salaries which they are to be paid or the maintenance and operation of the hospital.

It is true that section 8 provides for an annual report to be made to the county commissioners and the State Department of Health, but there is nothing as to what shall be done with this annual report, and it will be noted that the report is made after the expenses have been incurred. Is this the creation of a special commission to perform a municipal function, or is it merely the performing of a municipal function through an additional agency? There can be no question that the County of Schuylkill is a municipal corporation: Com. ex rel. Dare v. Smith et al., 9 Dist. R. 350. In Perkins et al. v. Philadelphia, 156 Pa. 554, it is said: "The special commission which, by the General Assembly of 1870, was delegated to certain commissioners was, by the General Assembly of 1893, simply withdrawn from them and delegated to the head of the Department of Public Works, another commissioner.

The fact is not material that the new commissioner was already by general law an officer of the city; the special and unusual power given him, to be exercised in a special manner with reference to one particular building, constituted the special commission delegated to him. The 1st section, then, which fulfills the promise of the title, creates a vacancy in the office of commissioner and fills it with the nominee of the General Assembly. The authority of the General Assembly of 1870, under the Constitution of 1838, to delegate such power to a special commission was clear; that of the General Assembly of 1893, under the Constitution of 1874, was peremptorily forbidden."

In Stratton v. Allegheny County, 245 Pa. 519, it is said: "The purpose of the said section (section 20, article iii) was to thereafter prohibit the legislature from naming a commission, composed of members who were in no way connected with the constituted authorities of municipalities, which was to perform some duty of a municipal character."

In re Tuberculosis Hospital.

This question was fully considered in a case very similar to the one at bar, by the Supreme Court in Moll v. Morrow, 253 Pa. 442, where it was held that the Act of June 27, 1913, P. L. 638, providing for the creation of a Bureau of Public Morals in the Department of Public Safety in cities of the second class, was unconstitutional, as delegating municipal functions to a special commission in violation of section 20, article iii, of the Constitution of Pennsylvania. In considering the question, the court says: "This board of directors is not a bureau of public safety, and calling it so does not help matters. The directors have full power to direct the work of the bureau and have dominion over all 'sex relationship affecting public morals.' The detail of policemen and detectives from the regular force is subject to the approval of the director of the department, but he must obey the requisition and his only discretion is in approving the choice of individuals. The men are subject to the board of directors only. "The disguise is so thin that it

can scarcely be called one.'" See, also, Porter v. Shields, 200 Pa. 241.

Our attention has been called to Com. ex rel. v. Krebs, 11 Schuyl. Legal Rec. 371, where this court declare the act creating the water-works commission constitutional. An examination of that decision discloses the fact that the conclusion was reached for the reason that the water commission was simply exercising a municipal function heretofore vested in the municipality, and that it was erected and created and subject for its very existence to the municipality itself. This is also true of the case of Smith et al. v. Baker et al., 3 Dist. R. 626, 9 Montg. Co. Law Repr. 194, where the act establishing boards of health was declared constitutional. It is not true, however, of the case at bar. The board of trustees whose appointment is here petitioned for have the power to erect the hospital and control it absolutely without interference from any municipal authority whatever. Salaries may be fixed without limit; enormous expenses may be incurred and the only function of the board of county commissioners is to pay.

It seems to us very clear that this is the creation of a special commission which exercises a municipal function. It has full charge of the maintenance and operation of a municipal building. It has full charge of the expenditure of public money incident to such maintenance and operation, limited only by its own wishes. We are of opinion, therefore, that the act is in violation of the sections of the Constitution herein before quoted, and we must, therefore, decline to make the appointment prayed for under its provisions.

...

From Henry D. Maxwell, Easton, Pa.

Commonwealth ex rel. Adams v. Bishop.

·Counting votes

Election law Person voted for under two different names—Acts of June 10, 1893, P. L. 419, April 29, 1903, P. L. 338, and July 9, 1919, P. L. 829.

Where two candidates are to be voted for, for two offices, and it appears that "Emma Adams" was the regularly nominated Republication candidate, and that no candidates had been named by the Prohibition Party, but that a number of persons wrote the name of "Mrs. J. Q. Adams" on their ballots as a Prohibition candidate, the ballots for "Emma Adams" and those cast for "Mrs. J. Q. Adams” cannot be added together and credited to "Emma Adams," although she was the same person as "Mrs. J. Q. Adams."

Petition for quo warranto. C. P. Jefferson Co., Jan. T., 1926, No. 232. Raymond E. Brown and W. B. Adams, for petitioner; J. C. Long, contra.

DARR, P. J., April 29, 1926.—A number of interesting questions are involved in this case, particularly whether or not quo warranto is the proper remedy, whether or not the petitioner is not bound to contest the election, whether or not the time for such contest has not expired, and whether or not the votes cast for "Emma Adams" and those cast for "Mrs. J. Q. Adams" should be added together and credited to the petitioner, which would have changed the result of the election. In our view of the case, the last question stated is the only one which is deserving of consideration under the peculiar circumstances of this case.