water to the general health; the community | of the city in the care or management of does not complain on any grounds. The them. plaintiff's grievance is for a mere personal Passages from the opinions in these two inconvenience, and we are of opinion that cases may be cited as antagonistic to the mere private personal inconvenience, arising views hereinbefore expressed, but we think in this way and under such circumstances, that the case of Washburn & M. Mfg. Co. v. must yield to the necessities of a great pub- | Worcester, 116 Mass. 458, will solve all the lic industry, which, although in the hands apparent difficulties which may be thus sugof a private corporation, subserves a great gested. It there appears that the city of public interest. To encourage the develop- Worcester, in the construction of its waterment of the great natural resources of a works, acted under a statute which made country, trifling inconveniences to particu- provision "for the assessment under special lar persons must sometimes give way to the proceedings of damages to all parties whose necessities of a great community." estates are thereby injured," and the city was, of course, held not to be liable to an action at law or bill in equity for injuries which were the necessary results of the exercise of the powers thus conferred. Said the court: "But if by an excess of the powers granted, or negligence in the mode of carrying out the system legally adopted, or in omitting to take due precautions to guard against consequences of its operation, a nuisance is created. the city may be liable to indictment in behalf of the public, or to suit by individuals suffering special damage." So that these cases are in harmony with the entire current of authority. We have quoted thus fully from this case, not that we mean to approve, or that we presume to disapprove, the law as stated in that case, but merely to show that it has no very close analogy to the one before us. The case of Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592, and that of Morse v. Worcester, 139 Mass. 389, 2 N. E. 694, were suits against the city of Worcester for polluting a stream by emptying into it the sewage of the city, and it was held that there can be no recovery against the city for the pollution so far as it is attributable to the plan of sewerage adopted by the city, but only so far as it is attributable to the improper construction or unreasonable use of the sewers, or negligence or other fault We are of opinion that the judgment of the Circuit Court must be reversed. PENNSYLVANIA SUPREME COURT. COMMONWEALTH of Pennsylvania ex rel. 1. 2. v. W. W. GRIEST. (196 Pa. 396.) Approval by the governor of a proposed amendment to the Constitution is not required by Const. art. 3, § 26, entitled "Of Legislation," and providing that every order, resolution, or vote shall be submitted to the governor before it takes effect, but making no reference to amendments, since the procedure governing the adoption of amendments is provided by Const. art. 18, § 1, which requires a proposal of an amendment in either house, an agreement to the same by both houses, a publication thereof by the secretary of the commonwealth, a second agreement by the two houses, a second publication by the secretary, and, finally, a vote of the people, which, if a majority vote favorably, causes the amendment to become a part of the Constitution, but nowhere gives any warrant for interference by the governor; and, as this is a complete system in itself, no part of art. 3, § 26, can be read into it by implication. stitutional amendment by the secretary of the commonwealth, as required by the Constitution, it is no defense that no appropriation of moneys to defray the cost of publication has been made, where it is not shown that any newspaper has refused to make the publication without being paid. 3. The publication of a proposed constitutional amendment under Const. art. 18, § 1, providing that the secretary of the commonwealth shall cause the amendment to be published three months before the next general election, and that the next general assembly chosen must pass upon the amendment before it is submitted to the vote of the people, is sufficient if made three months before the next general election at which members of assembly are chosen, although that is not the next after the proposal of the amendment, since the provision as to the time of publication is directory merely, and the object of the Constitution is equally well served by the later publication. A (May 29, 1900.) PPEAL by relator from a judgment of the Court of Common Pleas for Dauphin County refusing a mandamus to compel deIn a mandamus proceeding to com-fendant to proceed with the publication of pel the publication of a proposed con NOTE. As to adoption of amendments, see Seneca Min. Co. v. Secretary of State (Mich.) 9 L. R. A. 770; State ca rel. Torryson v. Grey (Nev.) 19 L. R. A. 134; Worman v. Hagan (Md.) 21 L. R. A. 716; Livermore v. Waite (Cal.) 25 L. R. A. 312: State ex rel. Woods v. a proposed constitutional amendment not Tooker (Mont.) 25 L. R. A. 560; Edwards v. withstanding the governor's disapproval of the same as adopted by the legislature. Reversed. The defendant admitted that the resolution proposing amendments to the Constitution was duly adopted by the legislature, but set up that it became of no validity because the governor vetoed the resolution and the same was not passed over his veto, and therefore that the resolution was of no effect and he was not required to proceed with the publication of the amendments and their submission to the people. He further set up that no appropriation had been made to pay the expenses of such publication, and that, the absence of such appropriation, he was not authorized to pay therefor or to draw his warrant for the payment, and that, furthermore, there were no funds in the treasury not otherwise appropriated out of which the expense could be paid; for which reason he claims that he was not bound to proceed with the publication. Further facts appear in the opinion. Messrs. Clinton Rogers Woodruff, David Wallerstein, William F. Darby, Henry Budd, and George W. Guthrie, for appellant: Article 3 of the Constitution is headed "Of Legislation," and its whole office is to regulate or restrain the making of laws. There is not in the whole article one single thing which refers directly or indirectly to the Constitution or to its amendment. The amendment of the Constitution was not to be brought about by a law passed by the legislature, with or without the consent of the people, but by the people themselves, speaking directly through the polls. Therefore it was not proper to include in article 3, which refers to the making of laws by the legislature, the ordinary law-making body, a provision which is not for the making of a law, but merely for proposing to the people something to be passed upon by them, and which, when approved of by the people, and then only, becomes the supreme law of the state without any intervention of either the legislative or executive department of the government. The two objects are not germane to each other. We should therefore expect that for each object would be provided a system complete in itself, not dependent in any way upon the system provided for the accomplishment of the other object. with the proposition or adoption of amendments to the Constitution. The same position has been taken in State ex rel. Morris v. Mason, 43 La. Ann. 648,. 9 So. 776, and Re Senate File 31, 25 Neb. 867, 41 N. W. 981. When the legislature does nothing more than propose an amendment, upon which the people are to vote directly, then it is the people alone who speak with any authority, and there is no need of a hold-up or a veto to enable them to speak. The Constitution does not prohibit the making of a contract authorized by law, or the performance of a duty imposed by it. until after an appropriation has been made by the legislature to discharge the liability or pay the expenses thereby incurred. The secretary of the commonwealth cannot excuse his failure to perform his constitutional duty by an allegation that another branch of the government has failed, or may likely fail, to perform its duty. A duty being cast upon the secretary, the presumption is that the co-ordinate branches of the government will perform their part. Zanesville v. Richards, 5 Ohio St. 589; Allegany County Public School Comrs. v. Allegany County Comrs. 20 Md. 449; Chicago, D. & M. R. Co. v. Olmstead, 46 Iowa, 316. The duty of the secretary of the commonwealth cannot be increased or diminished either by an order from the governor or by an act of the legislature. In only two instances does the Constitution impose specific duties upon a subordinate executive state official. In both instances it would seem to be apparent that the intention of the framers of that instrument was both to free that officer from the control of the governor in regard to these matters. and to impose the duties upon an official who could not claim for himself the immunity from judicial processes which belongs to the chief executive of the state. A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced. Cooley, Const. Lim. 6th ed. p. 99; DeTurk v. Com: 129 Pa. 151, 5 L. R. A. 853, 18 Atl. 757; McCafferty v. Guyer, 59 Pa. 111; Com. v. Gamble, 62 Pa. 349, 1 Am. Rep. 422. To say that the state treasurer might reAs article 18 does not by its terms require fuse to pay the cost of advertising the conthat before a proposed amendment may be stitutional amendment because no approprisubmitted to the people its submission mustation had been made would be to ignore the be approved by the governor, or his disapproval be overcome by a constitutional majority of the two houses of the legislature, no such requirement exists. Until the present case it never seems to have been dreamed that the governor had a right to prevent the people from considering and passing upon a proposed change in the fundamental law. In Hollingsworth v. Virginia, 3 Dall. 378, 1 L. ed. 644, it was held that the negative of the President applies only to the ordinary cases of legislation; he has nothing to do very reason for the constitutional prohibition against the payment of money except on warrant properly drawn and appropriation made. Thomas v. Owens, 4 Md. 189; State ex rel. Lincoln v. Babcock, 19 Neb. 230, 27 N. W. 98: Ewing v. Oroville Min. Co. 56 Cal. 649: Hills v. Chicago, 60 II. 86; People ex rel. Ely v. Rumsey, 64 Ill. 44: Tuttle v. National Bank of the Republic. 161 III. 497, 34 L. R. A. 750, 44 N. E. 984; Friedman Bros. v. Mathes, 8 Heisk. 488; Mallon v. Hyde, 76 Fed. Rep. 388; State v. Holmes, 12 Wash. 169, 40 Pac. 735, 41 Pac. 887; People v. |ford & W. Turnp. Road Trustees, 12 Q. B. Hoge, 55 Cal, 612. 448. The legislature cannot stop the wheels of government by a failure to appropriate money to discharge the obligations to be incurred by the proper executive officer in the discharge of a duty imposed upon him by law. Messrs. W. U. Hensel and M. E. Olm-is that a mandamus will not issue. sted, for appellee: If now granted, the mandamus would, of course, prove unavailing, and compliance with it would not only be without beneficial results, but it would be absolutely impossible and fruitless to the relator. In such cases the fundamental principle of the law The secretary of the commonwealth was not obliged to incur an expenditure of $40,000 without any legislative provision for its payment. State ex rel. Lum v. Archibald, 43 Minn. 328, 45 N. W. 606; Williams v. Lincoln County Comrs. 35 Me. 345; Cristman v. Peck, 90 Ill. 150; North v. University of Illinois Trustees, 137 Ill. 297, 27 N. E. 54; Gormley v. Lay, 114 Ill. 185, 28 N. E. 693; Graham County Comrs. 95 N. C. 515. Reeside v. Walker, 11 How. 291, 13 L. ed. 701; Com. ex rel. Witmer v. Lancaster Coun-Ex parte Mackey, 15 S. C. 322; Colvard v. ty Comrs. 6 Binn. 9. The duty of the secretary of the commonwealth has not yet arisen. The general assembly has not completed its task. It is just as important and necessary a precedent for the general assembly to appropriate money to advertise the amendments as for it to pass them, before the secretary can act. Not only was there no appropriation for this purpose, but there was no money in the state treasury to pay the cost of advertising. Com. ex rel. Witmer v. Lancaster County Comrs. 6 Binney, 9. The secretary of the commonwealth will not be mandamused to do a vain thing, e. g., to publish in 1900 constitutional amendments ninety days prior to the general election of 1899. The person who makes application for a writ of mandamus must in all cases establish a specific legal right, as well as the want of a specific legal remedy. James y. Bucks County Comrs. 13 Pa. 75; Heffner v. Com. ex rel. Kline, 28 Pa. 112. A relator is not entitled to the writ, even from the appellate court, unless he can show a legal duty then due at the hands of the respondent. Spelling, Extraordinary Relief, § 1385. No mandamus can issue when, as a practical matter, the mandate could not be obeyed. State ex rel. Price v. Carney, 3 Kan. 88; State ex rel. Hillman v. Dubuclet, 24 La. Ann. 16. The court ought to be satisfied that they have ground to grant a mandamus. "It is not a writ that is to issue of course, or to be granted merely for asking." Rex v. Askew, 4 Burr. 2189; Shortt, Mandamus (Text-Book series), p. 227. The application will not be granted to compel the performance of a duty already done, nor if the application has been delayed too long. King v. Bishop of London, 1 Wils. 11; Queen v. Northwich Sav. Bank Trustees, 9 Ad. & El. 729; Rex v. Sewer Comrs. 2 Strange, 763; Reg. v. London & N. W. R. Co. 6 Railway Cas. 634. The court has always refused to allow an application for a mandamus to be made the occasion or excuse for obtaining the opinion of the court on some doubtful question of law. Shortt, Mandamus, 250: Queen v. Blackwall R. Co. 9 Dowl. P. C. 558; Queen v. Ox The Constitution of Pennsylvania contemplates, and requires, that amendments proposed by joint resolution of the general assembly shall be submitted to the governor for his approval or veto. The provision that every resolution shall be submitted to the governor would by its unmistakable terms cover this case. Hatch v. Stoneman, 66 Cal. 632, 6 Pac. 734. In Collier v. Frierson, 24 Ala. 108, great emphasis was laid upon the absolute necessity of observing every legal requisition for amendments to the Constitution before a change can be effected. It is a part of the political history of our nation and state, that the executive preroga tive has steadily intensified in vigor and efficiency. Buckalew, Pa. Const. p. 117; Miller, Lectures of U. S. Const. p. 175. The sweeping language of the Constitution, that "every order, resolution, or vote to which the concurrence of both houses may be necessary shall be presented to the governor," leaves no room for any excep tion save that which is specified, viz., “the question of adjournment." Green, J., delivered the opinion of the court: The pleadings in this case develop the question whether a proposed amendment to the Constitution of Pennsylvania must be submitted to the governor for his action thereon, in the course of the proceedings for its establishment. The solution of the question depends upon the interpretation to be given to the 18th article of the Constitution of 1874. That article is the last of all the articles of the Constitution, and it is entitled as follows and is in the following words: "Article 18. Future Amendments." "Section 1. Any amendment or amendments to this Constitution may be proposed in the senate or house of representatives; and if the same shall be agreed to by a majority of the members elected to each house, such proposed amendment or amendments shall be entered on their jour nals with the yeas and nays taken thereon and the secretary of the commonwealth shall, cause the same to be published three months before the next general election in at least two newspapers in every county in which . such newspapers shall be published; and if either required or allowed, prior to the acin the general assembly next afterwards tion of the secretary. And that action chosen, such proposed amendment or amend- of the secretary is prescribed in manments shall be agreed to by a majority of datory language, thus, "and the secretary the members elected to each house the secre- of the commonwealth shall cause the same tary of the commonwealth shall cause the to be published," etc. He has no discretion same again to be published in the manner in the premises. His action does not depend aforesaid; and such proposed amendment or upon any other action whatever. It is his amendments shall be submitted to the quali- own personal, individual, and official duty, fied electors of the state in such manner, and imperative in its character, and of the very at such time at least three months after be- highest and gravest obligation, because it is ing so agreed to by the two houses, as the imposed by the Constitution itself, and he general assembly shall prescribe; and if such can only discharge that duty by literally amendment or amendments shall be ap- performing its terms. He cannot excuse -proved by a majority of those voting there- himself for nonperformance by setting up on such amendment or amendments shall advice, opinion, or action of any other perbecome a part of the Constitution; but no son, organization, or department, official or amendment or amendments shall be submit- otherwise, for the simple reason that the arted oftener than once in five years. When ticle of the Constitution which prescribes two or more amendments shall be submitted his duty does not allow it. There is no opthey shall be voted upon separately." It portunity for any, even the least, intervenwill be observed that the method of creating tion, between the entry of the amendment on amendments to the Constitution is fully the journals and the publication in the newsprovided for by this article of the existing papers, in the whole course of the proceedConstitution. It is a separate and independ-ing for the creation of the amendment. The ent article, standing alone and entirely un- subsequent provisions of the article are connected with any other subject. Nor does equally devoid of any right or authority to it contain any reference to any other provi- intervene, derived from any source whatever; sion of the Constitution as being needed or for, in the fifth place, the article provides to be used in carrying out the particular that, "if in the general assembly next afterwork to which the 18th article is devoted. wards chosen such proposed amendment or It is a system entirely complete in itself; amendments shall be agreed to by a majorrequiring no extraneous aid, either in mat- ity of the members elected to each house, ters of detail or of general scope, to its ef- the secretary of the commonwealth shall fectual execution. It is also necessary to cause the same again to be published in bear in mind the character of the work for the manner aforesaid." Here, again, the which it provides. It is constitution-mak- only precedent to the duty of a second pubing, it is a concentration of all the power lication by the secretary is the agreement of the people in establishing organic law for by the two houses to the amendment. The the commonwealth; for it is provided by the same duty of publication the second time is article that, "if such amendment or amend-imposed, and in the same mandatory terms, ments shall be approved by a majority of as in the first. Thus, "the secretary of the those voting thereon, such amendment or commonwealth shall cause the same again to amendments shall become a part of the Constitution." It is not lawmaking, which is a distinct and separate function, but it is a specific exercise of the power of a people to make its Constitution. Recurring to this subject later on, and proceeding now to analyse the requirements of the 18th article in the process of creating amendments, we notice, in their order, the successive particulars to be observed: First, the amendment is to be proposed in the senate or house, second, it must be "agreed to by a majority of the members elected to each house;" third, it must "be entered on their journals with the yeas and nays taken thereon;" fourth, in immediate sequence to the entry on the journals, and as a part of the same sentence, the article provides, "and the secretary of the commonwealth shall cause the same to be published three months before the next general election in at least two newspapers in every county in which such newspapers shall be published." It will be observed that the duty of the secretary of the commonwealth follows immediately upon the entry of the amendment on the journals of the two houses, with the yea and nay votes of the members. There is no other action by any department of the state government that is be published in the manner aforesaid." Immediately thereafter follows the provision in the sixth place, that the amendment shall be submitted to a vote of the people, and, lastly, if the amendment is approved by a majority of the voters, it becomes a part of the Constitution. These, then, are the several stages in the proceedings to create an amendment: A proposal of the amendment in either house; an agreement to the same by both houses; a publication thereof by the secretary of the commonwealth; a second agreement by the two houses; a second publication by the secretary; a vote of the people, which, if a majority vote favorably, causes the amendment to become a part of the Constitution. In the orderly and logical sequence of such preceding facts, it follows, with apparently an unanswerable certainty, that an amendment thus originated, proceeded with, and terminated, becomes an integral part of our state Constitution. It remains only to consider the reasons which are urged against the validity of such a conclusion. They are all concentrated and find their only life in the provisions of another article of the Constitution, to wit, the third, in the 26th section of which it is contended, there is a provision which makes it mitted to affect the question of adoption, nor is there any place in the article into which the necessity or the propriety of any other assent or dissent can be imported by implication. Therefore it follows, upon the most obvious and ordinary principles of statutory interpretation, that, there being no warrant for executive intervention contained in the 18th article, it cannot be placed there by any kind of implication from the 26th section of the 3d article. necessary to the validity of a proposed amendment that it must be submitted to the governor for his action thereon, and that, if he disapproves of it, it fails at once, and no further proceedings can take place, in the way of its establishment, unless his disapproval shall be overcome by a vote of two thirds of the members of both houses. The seriousness and gravity of this proposition will be at once conceived, when it is considered that it confers upon the governor, alone, the power to prevent the adoption of an But, in the second place, the language of amendment to the organic law of the state, that section does not purport nor attempt to by a mere exercise of his veto power, unless impose any such construction upon the 18th the amendment is passed over his veto by a article, nor does it give, by expression or by two thirds vote of the members. It will be implication, any control over the subject of necessary to consider the 26th section of the "future amendments," in the designation of 3d article with care, in order to determine the subjects over which the veto power may the question raised by this contention. The be exercised. The 3d article of the Constisection is in these words: "Every order, tution is confined exclusively to the subject resolution, or vote, to which the concurrence of legislation. It is entitled, "Of Legislaof both houses may be necessary except on tion," and only purports to be an authorizathe question of adjournment, shall be pre- tion and limitation of the legislation of the sented to the governor and before it shall commonwealth. It prescribes the manner in take effect be approved by him, or being dis- which the business of making laws must be approved, shall be repassed by two thirds of conducted, and the subjects with reference both houses according to the rules and lim- to which it may and may not be exercised. itations prescribed in case of a bill." The Thus, in its earlier sections it provides that question is, Must a proposed amendment to no law shall be passed, except by bill, and the Constitution be submitted to the gov- that no bill shall be so altered by either ernor, and be subjected to the requirement house as to change its original purpose; that of his approval? The first and most obvious no bill be considered unless referred to a answer to this question is that the article committee, returned therefrom, and printed; which provides for the adoption of an amend that no bill, except appropriation bills, shall ment is a complete system in itself, from be passed, containing more than one subject, which the submission to the governor is care- which shall be clearly expressed in its title; fully excluded, and therefore such submis- that every bill shall be read in each house sion is not only not required, but cannot be on three different days, and prescribing the permitted. It can only be done by reading terms upon which alone it shall become a into the 18th article words which are not law; that all amendments to bills shall be there, and which are altogether inconsistent concurred in by a majority of the members with and contrary to the words which are of each house, and directing the manner in there. Under that article the amendment which this shall be done; that bills shall be becomes a part of the Constitution. without revived, amended, or extended in a particuany action of the governor. Under the op- lar manner. These provisions cover the first posing contention it cannot become a part of six sections. The 7th section prohibits all the Constitution without the positive ap- local or special legislation upon a great proval of the governor, when no such ap- variety of enumerated subjects, and the 8th proval is either expressed in or implied from requires that public notice shall first be the explicit words of the article. They can- given of an intent to pass any kind of local not be implied, because there is no necessity legislation. The remaining sections, down for such implication, and without such to the 26th, contain prohibitive limitations necessity there can be no implication. as to some subjects, and directory provisions This is a most familiar principle in as to others, but all of an exclusively legisthe construction of mere ordinary stat-lative character. Then follows the 26th secutes, and also in the construction of tion, providing for the submission of “every written contracts. And, more than this, order, resolution, or vote" to the governor, if the proposed amendment is to be for his approval or disapproval, and how bills submitted for the approval of the governor, it follows that, if he disapproves it, it may fail altogether, and thus an element of defeat be introduced into the 18th article, when that article manifestly does not permit the existence of such an element. The only authorities which have any right to assent or to dissent to the adoption of the amendment are the two houses of the general assembly and the people. If these latter vote adversely, it falls. If the two houses do not agree, it never has any existence, even as a proposition. But nowhere in the article is any other assent or any other dissent per may be passed again notwithstanding his disapproval. Then follow a few further restrictions of the subjects of legislation, and provisions for criminal penalties for prohibited acts, and with these the article closes. Nowhere in the article is there the slightest reference to or provision for the subject of amendments to the Constitution. It is not even alluded to in the remotest manner. On the contrary, the entire article is confined exclusively to the subject of legislation; that is, the actual exercise of the lawmaking power of the commonwealth. in its usual and ordinary acceptation. It is too plain. |