Pennsylvania Advisory Opinions January 23, 1917: AGO 143

Advisory Opinion Text

SOLDIER VOTES

Section 26 of the Act of August 25, 1864, P. L. 990 is a specific appropriation of money needed for taking the soldier vote, within the meaning of the Act of May 11, 1909, P. L. 519.

Honorable Robert K. Young, State Treasurer, Harrisburg, Pa.

Sir: This Department is in receipt of your favor of the 9th inst., inquiring whether Section 26 of the Act of August 25, 1864, P. L. 990, authorizing the taking of the soldier vote, is not repealed by the Act of May 11, 1909, P. L. 519, forbidding the payment of any money out of the State Treasury except in pursuance of an Act of Assembly setting forth the amount to. be expended and the purpose of the expenditure.

I beg to advise you that this matter was considered by the Attorney General at the time of the giving of his opinion to the Governor (August 23, 1916) with reference to the taking of the vote of the electors of this Commonwealth while engaged in the military service of the United States at the Mexican Border.

Section 26 of the Act of August 25, 1864, P. L. 990, reads as follows:

"Said commissioners shall receive, in compensation for their services under this act, ten cents per mile, in going to and returning from their respective regiments, estimating the distance of travel by the usually traveled route; and it is hereby made the duty of the Auditor General and State Treasurer to audit and pay the accounts therefor, in the same manner as other claims are now audited and paid by law; all commanding and other officers are requested to aid the commissioners, herein appointed, and to give them all proper facilities, to enable them to carry out the design and intention of this act."

This constituted a direction to the Auditor General and State Treasurer to audit and pay the accounts of the commissioners on the basis of ten cents per mile in going to and returning from their respective regiments (estimating the distance of travel by the usually traveled route) as full compensation for their services and was an appropriation of the amount when thus audited and determined.

An appropriation has been defined by this Department to be a legal direction or authority to pay a sum certain or limited to an amount which it shall not exceed, made by an Act of Assembly in a form and for a purpose not prohibited by the Constitution.

Opinions of Attorney General, 1895-96, p. 362.

The amount here appropriated is ten cents per mile actually traveled. While the entire amount is not fixed it is capable of definite ascertainment.

Id est certum quod certum reddi potest.

This was the state of the law on this subject when the Constitution of 1873 was adopted.

It was therein provided, Article VIII, Section 6, as follows:

"Whenever any of the qualified electors of this Commonwealth shall be in actual military service, under a requisition from the President of the United States or by the authority of this Commonwealth, such electors may exercise the right of suffrage in all elections by the citizens, under such regulations as are or shall be prescribed by law, as fully as if they were present at their usual places of election."

There has been no change since the adoption of the Constitution in the law relating to the taking of the soldier vote, and Section 26 is therefore in full force and effect unless it is repealed by the Act of May 11, 1909, P. L. 519, making it unlawful for any officer of the Commonwealth to authorize the payment of, or for the State Treasurer to pay any money out of the State Treasury except in accordance with the provisions of an Act of Assembly setting forth the amount to be expended and the purpose of the expenditure.

This Act does not expressly repeal the Act of 1864, or any section of it. Does it do so by implication ?

Implied repeals of statutes are not favored. If two statutes can stand together, the latter does not abrogate the earlier.

Citizens Electric Illuminating Company vs. Lackawana and Wyoming Valley Power Company, 255 Pa. 145.

In this case the Supreme Court adopted the language of Judge Endlich, in his work on the Interpretation of Statutes, Section 210, as follows:

"In order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it, the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair; strict or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together, in harmony with the whole course of legislation upon the subject."

Furthermore, in the present case, the express mandate of the Constitution should not be nullified if, by any fair construction of the two Acts of Assembly, they can stand together.

I am of the opinion that Section 26 of the Act of August 25, 1804, sufficiently sets forth the amount to be expended, and the purpose of the expenditure, as contemplated by the Act of May 11, 1909, and that it is therefore not repealed by that Act.

I beg to advise you, therefore, that, in my judgment, no further specific appropriation is necessary and that you are justified in paying mileage to the said Commissioners, out of the funds in the Treasury not otherwise appropriated, after their accounts have been duly audited according to law.

Yours very truly,

WILLIAM H. KELLER, First Deputy Attorney General.