Pennsylvania Advisory Opinions December 15, 1905: AGO 66

Advisory Opinion Text

HIGHWAYS-TOWNSHIPS OF SECOND CLASS-SUPERVISORS-ACTS OF APRIL 12, 1905.

The act of April 12, 1905, P. L. 142, which provides for the election and appointment of road supervisors in townships of the second class- and defines their powers and duties, creates a uniform system for the control of public highways in such townships and repeals all losal or special laws applicable thereto.

Sections 1, 3, 7 and 12 of the act discussed.

Office of the Attorney General, Hon. Joseph W. Hunter, State Highway Commissioner:

Sir: You have written a letter to this department, asking for official advice upon several questions which have arisen relative to the act of Assembly of April 12, 1905, P. L. 142, entitled "An act providing for the election and appointment of road supervisors in. the several townships of the second class of this Commonwealth; defining their duties; authorizing them to make, repair and maintain roads and bridges, let contracts for the same, levy and collect taxes, employ labor, divide townships into districts, appoint roadmasters and treasurers, purchase road-making implements and machines; prescribing penalties for violation of this act, and requiring the road supervisors to report to township auditors and to the State Highway Commissioner from time to time, and for the payment of a percentage of road tax to townships that abolish the work tax, and for the repeal of all laws, general, local or special, inconsistent herewith or supplied hereby."

This law is general in its terms and was intended to provide a uniform method of electing township supervisors in townships of the second class throughout the Commonwealth, and marks a decidedly forward step in the movement for securing better roads for the public. The spirit and aim of the law must be given full force and effect in construing it, in order that the legislative intention may be carried out. With a fixed purpose to do this, and at the same time keep within the letter of the statute, I proceed to answer your questions seriatim, as follows:

1. As the statute is silent on the question of compensation, I am forced to the conclusion that the Legislature did not intend that the supervisors elected in accordance with the provisions of this act should receive any compensation whatever for their services, and the words "necessary expenses," in section 7, line 4, cannot be construed to mean anything more than the return of such sums of money as are necessarily expended by the supervisors in carrying out the duties of their office. This would properly include traveling expenses, cost of meals, horse feed, and such other like items, but would exclude any compensation of any kind for the time spent by the supervisors in the discharge of their duties.

2. Notwithstanding the stringent provisions of section 12, I am of the opinion and advise you that a supervisor may work out his road tax under the work tax system, for the reason that, while he cannot receive compensation for his official services, it would be unfair to put him in a worse position than any of his neighbors, simply because he holds the office. Though he cannot profit by his official position, he ought not to lose any of his rights as a taxpayer by reason thereof.

3. If a township abolishes a work tax by a vote at the February election of 1906, it will be entitled to receive the 15 per centum of the amount of the road tax collected in said township for that year. This 15 per centum cannot be paid, however, by the iState Highway Commissioner until he has received the necessary report provided for in section 10 of the act, which cannot be furnished him before the succeeding year, because the law contemplates that the commissioner of highways shall have at hand the report so provided for before he shall draw his warrant, but the preparatory step must be taken at the February election in 1906 to entitle the township to the State aid for that year.

4. No member of the board of supervisors should act or be employed as roadmaster for any district under the authority of section 3, for the reason that the compensation would be fixed by himself and his colleagues on the board, and this would be a direct violation of the spirit if not the exact letter of the law, and in case he should insist upon doing this work, he is not entitled to compensation for the same.

5. It does not seem possible that the voters of any township will see fit to ignore the plain and mandatory terms of the act and refuse to elect supervisors in the manner provided by its terms. If this should occur, and the attention of the proper authorities were called to the situation, legal steps will be promptly taken to compel compliance with the act.

6. By reason of the proviso at the end of section 1, no township which now has three supervisors, elected under existing laws, need hold an election at the municipal elections in February for the purpose of complying with the requirements of this act, except as the terms of the said supervisors or road officers now in commission in such township shall expire.

7. It appears that there are some townships working under special laws that now elect supervisors in the same manner as provided for by the act under discussion, and these supervisors receive compensation, and there are also townships working under other special and local laws, among them the act known as the "Uwchlan Township Law" (P. L. 1865, page 336), and the supplements, which extend its provisions to townships other than those originally named therein. The question whether or not these local and special laws are repealed by the act under discussion is an interesting one, and I shall proceed to discuss it at somewhat greater length than I have the preceding questions.

The general rule of statutory construction adopted by the courts of the Commonwealth is that a general statute cannot repeal a local statute whose provisions are in conflict with it, unless there are words of express repeal contained in the general statute, and even in some cases where there are words of express repeal, the courts have denied their application to a local law; but a careful investigation of the numerous decisions in both classes of cases leads me to the conclusion that these rules of interpretation are simply intended to be helps in a search after the legislative meaning, and we will, therefore, consider the question in the light of that conclusion.

The act of April 12, 1905, is a general statute, covering "every township of the second class in this Commonwealth," and provides a complete method so far as the township control of the public highways is concerned, and is the latest expression of the legislative mind upon this most important subject.

These special acts, on the other hand, are the product of legislatures of a much earlier date, before the development of the road-making sentiment, and the methods provided by them are necessarily antiquated and obsolete. It is also apparent from the language of the repealing clause of the act of 1905 that the legislative intent was to repeal all local or special acts inconsistent with the terms of the general law, and provide a uniform law upon this subject throughout the Commonwealth. The very nature and purpose of the latter act seems to have been to eliminate all antiquated and obsolete legislation upon this subject, and therefore it ought to be construed, if possible, in such a manner as to fulfill that purpose. In this case it seems to me that I can do no better than to adopt the reasoning of Mr. Justice Williams in Com. v. Macfarron, 152 Pa. 244: "If a law relating to cities of any given class could be held to exclude or to be inoperative in one or more members of the class, it must, under the Constitution, be inoperative in all, and fall altogether. There can be no law for a class that does not embrace the whole class. There can be no law regulating the affairs of one city in a class that does not apply to every city in the class. Whenever, therefore, any law regulating the municipal affairs of cities of a given class shall be found to conflict with a previous local statute applicable to any member of the class relating to the same subject, the latter must give way by reason of the nature and purpose of class legislation. In .this manner existing diversities will gradually disappear, and uniformity throughout the class will be finally secured."

The principle in that case applies squarely to this, and I am of opinion and advise you that the act of April 12, 1905, repeals all local or special laws applying to any second class townships in this Commonwealth.

Very respectfully,

HAMPTON L. CAESON, Attorney General.