"As to the right of the State Treasurer to defend against an application for the writ of mandamus on the ground of the alleged unconstitutionality of an act of the Legislature, the Pennsylvania cases are unsatisfactory. Commonwealth v. James (1890) 135 Pa. 480, 19 Atl. 950, is a recent case holding that such a plea is not a good defense where the officer refusing has no discretion. Here a mandamus was granted against a clerk of the court of quarter sessions, who had declined to file and record the resolutions of the boards of school directors, in a city of the third class, which had accepted the provisions of the act of May 23, 1889 (P. L. 274). The court in a per curiam opinion said: "The act referred to requires him to receive and record these papers; his duties were purely ministerial, and the court below properly awarded the peremptory mandamus. It is but just to say that his act in refusing does not appear to have been one of insubordination, but was intended to test the constitutionality of the said act of 1889. We are of opinion that the constitutional question cannot be raised in this way. We really have no case before us, beyond the mere refusal of the clerk to file the papers.' But does this case correspond to the present case of the State Treasurer, a high constitutional officer of the commonwealth, obligated to care for and protect the funds of the people, and who, furthermore, has the most vital pecuniary interest under his bond? We think not.

"There are a number of old cases, and two comparatively late Pennsylvania cases, taking it for granted that the State Treasurer has this right, but not passing directly upon the point. Commonwealth v. Butler (1882) 99 Pa. 535, and Commonwealth v. Gregg (1894) 161 Pa. 582, 29 Atl. 297, were both cases where the State Treasurer had refused to honor requisitions because he did not consider the acts valid. In both cases the court granted a peremptory mandamus, and in neither case did the court criticise the action of the officials in contesting the validity of the act. Commonwealth ex rel. v. Lemon, 2 Chest. Co. Rep. 167, does not bear in any way upon this question. The court simply decided that the Treasurer should pay the money he had on hand-not that the court would not go into the constitutionality of the act. The famous case of Commonwealth v. Mann (1843) 5 Watts & S. 403, at pages 421 and 422 of the report, throws some light upon the subject.

"The act of March 30, 1811, § 8 (5 Smith's Laws, 230), provides: "The State Treasurer shall pay all grants, salaries, annuities, gratuities and pensions established by law, and make all other payments which are or shall be so fixed by law.' Does this not call for some exercise of discretion upon his part? Is he not more than the court clerk, who assumes no obligation? The Pennsylvania decisions above referred to point toward, but

do not establish, this distinction. If 'established by law' means merely founded upon a legislative enactment, then the State Treasurer is a clerk, with no discretion whatsoever; but if this clause means 'established by a (valid) law,' then a different aspect is put upon the matter. The question we are now considering as to the right of an administrative officer, such as the State Treasurer, to defend against a mandamus proceeding such as the present by questioning the constitutionality of an act of the Legislature, seems to be a hitherto unsettled point in Pennsylvania, and it is necessary to make a survey of the law in other jurisdictions before arriving at a satisfactory conclusion.

"In the other jurisdictions we find anything but harmony on the subject. The federal cases uniformly hold that an officer, though he be no more than a ministerial officer, has no right to obey an invalid law; that his duty to the state and national constitutions is greater than his respect for the acts of the Legislature; that such an act is no law at all, neither compelling him to obey nor protecting him if he has obeyed it. The opposing cases urge the obstruction to the course of government in the state if every officer can refuse to act. Some of the states, while admitting the right of certain officers to contest the validity of an act, deny it to the more humble officers. In all states, and in the federal courts as well, it is conceded to be a step taken at the officer's peril, and which he should not take lightly. 19 Am. & Eng. Enc. Law (2d Ed.) 764; 23 Am. & Eng. Enc. Law (2d Ed.) 369.

"In Louisiana State Lottery Co. v. Fitzpatrick (1879) 3 Woods, 222, Fed. Cas. No. 8,541, an injunction was sought to prevent officers of the state from enforcing an act taking away a charter in violation of the obligation of contract. Billings, D. J., said: "The state is not amenable to any suit, and is shielded by the immunity from any process or legal responsibility. But as an unconstitutional law has no inherent force either to authorize or protect, and therefore no claim to be obeyed and no authority to divest rights, the agents of its administration, of whatever name or character, may be called to answer, and are individually responsible.' He then proceeds (page 263, 3 Woods, Fed. Cas. No. 8,541) to strike the keynote of the position of the federal courts: "The officers of every state of the United States, whether executive or judicial, owe to the Constitution of the United States a fealty, an homage, an obedience, surpassing that which they owe to their constituents of the state.'

"In Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. Ed. 185, the court decided a case of detinue for goods unlawfully taken by a tax collector. This was one of the Virginia Bond Cases; these involved a breach of the obligation of contract. The state of Virginia had agreed to accept certain bonds in payment of taxes. Later, they re

fused. The court, through Matthews, J., said: 'It is said that the tax collector who was sued was an officer and agent of the state, engaged in collecting its revenues under a valid law, and that the tax he sought to collect was lawfully due; that, consequently, he was guilty of no personal wrong, but acted only in an official capacity, representing the state, and, in refusing to receive the coupons tendered, simply obeyed the commands of his principal, whom he was lawfully bound to obey. * * * He relied on the act of January 26, 1882, requiring him to collect taxes in gold, silver, United States treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative act of the state of Virginia, but it is not a law of the state of Virginia. The state has passed no such law, for it cannot; and what it cannot do it certainly, in contemplation of the law, has not done. * He stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights for which he must personally answer, he is without defense.'

*

"In Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178, Field, J., said: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office. It is in legal operation as inoperative as if it had never been passed.' In Huntington v. Worthen, 120 U. S. 97, 7 Sup. Ct. 469, 30 L. Ed. 588, Field, J., delivered the decision in a case where an injunction was sought by residents of Massachusetts to enjoin the collection of a tax. The defense was that the law exempting the property of the plaintiffs was in conflict with the state Constitution. The court said: 'When, therefore, under the adIvice of the Attorney General, the Board of Railroad Commissioners treated as invalid the directions of the statute that the value of embankments, etc., should not be included in the estimate of the railroad track, it obeyed the Constitution rather than the Legislature. It may not be a wise thing, as a rule, for subordinate executive or ministerial officers to undertake to pass upon the constitutionality of legislation prescribing their duties, and to disregard it if, in their judgment, it is invalid. This may be a hazardous proceeding to themselves and productive of great inconvenience to the public, but still the determination of the judicial tribunals can alone settle the legality of their action. An unconstitutional act is not a law; it binds no one, it protects no one.'

"A late case is Yale College v. Sanger, State Treasurer (C. C.) 62 Fed. 177, decided by Shipment, Circuit Judge of the District of Connecticut. The complainant alleges the defendant is about to obey an unconstitutional act, and divert from it the income of certain funds secured to it by a contract with the state of Connecticut. The court said: 'It is equally well settled that an officer of the

state, who, as an aggressor, invades the property or vested pecuniary rights of an individual in his specific real or personal property, cannot, in a suit at law against him for his tort, or in a bill in equity to restrain the commission of the intended injury, when adequate relief cannot be otherwise afforded, successfully justify his conduct upon the ground that he is acting in obedience to the authority of an unconstitutional statute of the state.'

"It is thus conclusively shown that the United States courts regard an unconstitutional act of the state as no act, and regard the officer obeying such statute as in no wise protected. It would therefore seem a very harsh doctrine that would deny the State Treasurer the right to obtain judicial instruction by refusing to obey that which he may honestly believe to be an unconstitutional law, in view of the fact that the federal courts hold him a wrongdoer, liable to any party injured, if he should act thereunder.

"Turning to the decisions in the state of New York, we find the case of People ex rel. v. Board of Canvassers, 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646, involving the question whether a board of election officers have the right to refuse a certificate to a party constitutionally incapable of holding the office. Earl, J., said: 'Can the relator come into a court of law and ask its aid in his violation of the Constitution and his proposed intrusion into the office of senator? They decided he could not; and, further on in the opinion, they say that should an election inspector deny a man the right to vote, and, upon mandamus, it should appear that he had never been qualified, the court should have to sustain the inspector, who always, nevertheless, acts at his peril in such a case.

"New Jersey is in line with the federal courts, although they put a very heavy burden upon the disobedient officer. In State v. Kelsey, 44 N. J. Law, 1, there was a refusal by the Secretary of State to turn over certain moneys as provided by statute. Beasley, P. J., said: 'Statutes are not avoidable even by judicial decision, except upon very satisfactory grounds, and nothing short of an almost absolute certainty with respect to the entire invalidity of an act would afford an excuse to an officer for his refusal to execute it. Any less stringent rule of official conduct in such a respect would be a public evil of very great magnitude. For a financial agent of the government to refrain from putting into operation a legislative policy plainly evidenced by a formal enactment, acting on his own judgment, unassisted by any judicial tribunal, would, unless in an instance of such clear illegality that the flaw would be at once admitted by every enlightened mind, be inconsistent with every dictate of law and public policy. Yet this case recognizes the right of the officer to raise the question.

"In Kentucky we have the case of Norman

v. Kentucky Board of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556. This was a refusal by the State Auditor to draw a warrant in pursuance of a law which he contended was invalid. Holt, C. J., said: 'It is a general rule that a court will not listen to one who says a legislative act is unconstitutional, unless his rights are involved or he has a right to question it. Section 230 of our new Constitution, however, says, "No money shall be drawn from the state treasury except in pursuance of appropriations made by law," and our statute forbids the issue by the Auditor of a warrant upon the Treasurer, unless the money to pay the same has been appropriated by law. If the act of the Legislature be void for want of power to pass it, or because it was not passed in the manner required by the Constitution, then it is not law; and the Auditor is vested with such power and occupies such a position that it is not only his right, but his duty, whenever he is called upon to order the payment of money out of the treasury, to inquire whether it is being done legally. He is, in a certain sense, a trustee, and the public interest requires that his office should give him the right to question the validity of a legislative act under which, by means of his warrant, the public money is to be expended.'

"In California we have the same rule, evidenced by the case of Denman v. Broderick, 111 Cal. 96, 43 Pac. 516. Here, again, we have the refusal by an auditor to grant warrants for salary as provided by an act of the Legislature, the validity of which he attacked. The court said: 'We see no force in the point that the respondent has no interest in the question here involved. The act under which the petitioner claims being unconstitutional and void, there is no law authorizing the respondent to draw the warrant, and to do the act demanded of him would be to violate his official duty and oath, and subject himself to liabilities and penalties.'

"It will be noted that both in Kentucky and California cases correspond in some respects to the present case.

"Michigan makes a distinction between different classes of officers. This is set forth in the case of Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L. R. A. 332. This was a refusal by the board of canvassers to give a certificate of election, and their reason was that the election law was invalid; but the court, in its opinion, admits that where personal or property rights are involved, and great inconvenience and damage would result if prompt action were not taken, in such cases the public officer can allege the invalidity of the act. The court said: "The canvassers have no right to shift this burden of proof by withholding the certificate or issuing it to anoth

this court in mandamus proceedings. This is true where personal or property rights are involved, and great inconvenience and damage would result if prompt action were not taken. In such case the public officer or body charged with the performance of duty may either decline to act on the ground of alleged unconstitutionality of the act, or he may proceed. In either event, mandamus will lie to set him in motion in the one case and restrain him in the other. But this does not apply to cases where the duty of the officer is only clerical or ministerial, and the law provides an ample remedy afterwards to test the validity of his action, and that, too, without inconvenience or damage.'

"In North Carolina is to be noticed a tendency to distinguish between the cases of different officers. This is clearly shown in the case of Gilmer v. Holton, 98 N. C. 26, 3 S. E. 812, where the Supreme Court refused this defense of unconstitutionality in the case of a clerk of the superior court, saying: 'It is a proper occasion for us to remark that if every subordinate officer in the machinery of the state government is to assume an act of the Legislature to be in violation of the Constitution, and refuse to act under it, it might greatly obstruct its operation and lead to most mischievous consequences. This is only permissible, if at all, in cases of plain and palpable violation of the Constitution, or where irreparable harm will follow the action.'

"Wisconsin is in line with the federal decisions, as shown by the case of State v. Tappan, 29 Wis. 664, 9 Am. Rep. 622, where a town clerk refused to levy a tax because he considered the law invalid, and it was contended that the clerk, who was a mere ministerial officer, had no power to pass upon its validity. The court held: "The act being void, it binds no one, and any person may assert its true character and refuse to obey it.'

"Nebraska, in the case of Van Horn v. State, 46 Neb. 62, 64 N. W. 365, decided that, where a supposed act and the Constitution clash, the Constitution must be obeyed. Ministerial officers are not bound by their oaths to obey an unconstitutional statute.

"Cases have arisen as to whether or not an officer derives any defense from an invalid act in case he is sued by a party injured through its enforcement. Besides the cases already cited from the federal courts, the Supreme Court of Massachusetts, in the case of Kelly v. Bemis, 4 Gray, 83, 64 Am. Dec. 50, decided that an officer could derive no protection from an act of this character. The Supreme Court of Indiana, in the case of Sumner v. Beeler, 50 Ind. 341, 19 Am. Rep. 718, held to the same effect in a suit for illegal arrest under an unconstitutional statute. The court said: 'No question in law is better settled, and this is admitted by the counsel for the appellants in their brief, than that ministerial officers and other per

sons are liable for acts done under an act of the Legislature which is unconstitutional and void. All persons are presumed to know the law, and, if they act under an unconstitutional enactment of the Legislature, they do so at their own peril, and must take the consequences.'

"There are cases from jurisdictions of high | standing which contradict the principles which are laid down in the cases just cited. For instance, the Supreme Court of Maine, in the case of Smyth v. Titcomb, 31 Me. 272, holds that a tax collector cannot refuse to act because of the invalidity of the act. The court said: 'He is not responsible for the law, or for the possible wrongs which may result from its execution. * * Public policy, as well as public necessity and justice, require a prompt and efficient action from such officers.'

"Likewise the state of Illinois, in the case of People ex rel. v. Salomon, 54 Ill. 39, holds this view, saying: 'Being a ministerial officer, the path of duty was plain before you.

* Your only duty was obedience. The collected will of the whole people was embodied in that law. A decent respect to them required that all their servants should obey it.' This was an attachment for failure to obey a mandamus.

"So holds the case of United States ex rel. v. Marble (1883) 3 Mackey (D. C.) 49, where the court said: 'It is objected on behalf of the Commissioner of Patents that the act of Congress of June 18, 1874, providing for the registration of labels, is unconstitutional, and therefore void. A very elaborate, ingenious, and perhaps, under appropriate circumstances, successful argument, has been made to sustain this position. But we think the point raised has no application to this case. We do not think it lies in the mouth of a government official to call in question the constitutionality of a law directing him to perform a purely ministerial duty.'

"We notice this case is cited by the Attorney General in his paper book, but, as the law of the District of Columbia is supposed to conform to the federal law of the land, the cases cited from the Supreme Court of the United States allow no doubt on this question, and show that this case cannot well be considered.

"The Attorney General likewise cites a large number of other cases to support the contention that an administrative officer has no right to make the defense that we have been considering. The case of Flournoy v. Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468, cited by him, cannot be held to put Indiana in favor of this view, as is clearly shown by the case of Sumner v. Beeler, 50 Ind. 341, 19 Am. Rep. 718. This is also true of the California case of Downer v. Lent, 6 Cal. 94, 65 Am. Dec. 489, cited, which is clearly ruled by the contrary case of Denman v. Broderick, 111 Cal. 96, 43 Pac. 516. The New York cases of People v. Collins, 7 Johns. 549, and Hal

stead v. The Mayor of New York, 3 N. Y. 430, cited, are clearly ruled, so far as this question is concerned, by the contrary case of People v. The Board of Canvassers, 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646. The Michigan case of Attorney General v. Board of County Canvassers, 64 Mich. 607, 31 N. W. 539, cited, is explained by the case of Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L. R. A. 332. As to the citation from Amy v. Supervisors, 78 U. S. 136, made by the Attorney General, we need only refer to the case of Huntington v. Worthen, 120 U. S. 97, 7 Sup. Ct. 469, 30 L. Ed. 588. The Attorney General cites the Massachusetts case of Waldron v. Lee, 5 Pick. 323, but the following excerpt from the opinion in that case shows that it does not conform to the rule contended for by the Attorney General: If it should manifestly appear that a tax was illegally granted or assessed, so that the officers required to collect it would have no authority, or the persons taxed would have a right to restitution by action, without doubt the court would withhold the exercise of its power, rather than throw the parties into an expensive field of litigation.' Therefore it is safe to presume that the law of Massachusetts must be taken to be contrary to the Attorney General's contention. The case of State v. Hastings, 15 Wis. 75, is cited, but there is evidently an error here, for ex amination of the volume indicated fails to disclose any such case; however, the later case of State v. Tappan, 29 Wis. 664, 9 Am. Rep. 622, seems to hold a contrary view. We can hardly subscribe to the doctrine which the Attorney General seeks to support by the case of State v. Buchanan, 24 W. Va. 362, to the effect that the mere fact that the Governor, as the constitutional head of the state government, has signed a bill, deprives the State Treasurer of any and all right to question its constitutionality.

"These cases will give a general view of the law in this country. It is not harmonious, but the weight of authority appears to be in favor of the cases which hold to the right, and in some instances the duty, of certain administrative officers to refuse to act under what they honestly believe to be an unconstitutional act. The American and English Encyclopedia of Law (2d Ed.) vol. 19, p. 764, states: 'Under either view, if an officer has a personal interest in the question, or if the nature of the office is such as to require him to raise it, he may make the defense.' It can be seen that the courts of other jurisdictions have drawn a distinction between strictly ministerial officers, such as inspectors of elections and clerks of courts, and higher officers, such as state treasurers and state auditors, who, according to the cases, seem called upon or permitted to exercise a certain amount of judicial interpretation.

"Although we do not decide that all min. isterial officers of the state government have

a right to refuse to act under a law because they conceive it to be unconstitutional, and thus constitute themselves tribunals to pass upon the validity of acts of the Legislature generally, we do hold in this particular case that the State Treasurer, being a high constitutional officer of the commonwealth, intrusted with the funds of the state, under the law, has the right to raise by his pleadings the question of the constitutionality of the act of April 14, 1903, fixing the salaries of the judges of the commonwealth. For the reasons given, the motion to strike out must be overruled, and the answer of the State Treasurer stand as stated.

"To return to the pleadings. Considering the motion to strike out as a demurrer, the issue raised is as to the validity of the answer, whether, on the whole, it presents a legal excuse for not performing the command of an alternative writ, and, in order to properly determine this question, the answer must be looked at in the light of the averments in the' application.

"The court will not issue a mandamus to compel the State Treasurer to honor the warrants of the Auditor General in this instance, unless it is clearly satisfied that the act of 1903 is constitutional in its attempt to raise the salaries of judges in commission at the date of its approval, and the question of the constitutionality of the act in this respect is squarely raised by the pleading in this case.

"It is but proper, before entering upon the consideration of this vital question, to notice the appropriate rules of construction by which we should be guided. A leading rule for judicial construction of constitutional provisions is that every possible presumption and intendment must be made in favor of the constitutionality of an act, and the courts can only interfere in cases of clear and unquestioned violation of the fundamental law. The authority of courts to declare statutes unconstitutional is a power of high responsibility, and not to be exercised except in cases free from doubt, and all doubt is to be resolved in favor of the constitutionality of the act. Sedgwick's Construction of Statutory and Constitutional Law (2d Ed.) 409; Bank v. Smith, 3 Serg. & R. 63 (Chief Justice Tilghman); Commonwealth v. Butler, 99 Pa. 535 (Chief Justice Sharswood); Craig v. First Presbyterian Church, 88 Pa. 42, 32 Am. Rep. 417 (Justice Paxson); In re Sugar Notch Borough, 192 Pa. 349, 43 Atl. 985 (Justice Mitchell, now Chief Justice). "There is a presumption in favor of the constitutionality of a statute, and in accordance therewith, when a statute is susceptible of two constructions, one of which supports the act and gives it effect, and the other renders it unconstitutional and void, the former will be adopted, even though the latter may be the more natural interpretation of the language used.' 26 Am. & Eng. Ency. of Law (2d Ed.) 640. 'In case of irreconcilable conflict between the

provisions of a constitution, that which is more specific in subject-matter will usually prevail as against a more general one.' 6 Am. & Eng. Ency. of Law (2d Ed.) 927. Where in the same instrument is to be found a particular enactment, and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment; this rule being subordinate to the principle that a construction giving full effect to all parts should be adopted if possible, and we are to inquire whether or not one necessarily comes in conflict with the other. 26 Am. & Eng. Ency. of Law (2d Ed.) 619. "The uniform construction given to a provision of the Constitution by the Legislature, with the silent acquiescence of the people, including the legal profession and the judiciary, and the injurious results which would ensue from the contrary interpretation, are proper elements of a legal judgment on the subject.' Moers v. The City of Reading, 21 Pa. 188. If an act be susceptible of the interpretation which has been put upon it by long usage, the court will not disturb that construction. Pochin v. Duncombe, 1 H. & N. (Exch.) 842 (Pollock, C. B.). The views expressed by members of the convention, as set forth in the debates of the constitutional cònvention and the report of the committee, as to changes made by the new Constitution, cannot be resorted to in order to arrive at a judicial interpretation of any part of the Constitution, if a sensible interpretation of the part in question can be made under the usual rules of judicial construction. This is on the principle that the final draft of the Constitution is what the people adopted, not the preliminary debates leading up to it, or the construction put upon it by members of the convention afterwards. Commonwealth v. Balph, 111 Pa. 365, 3 Atl. 220; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; Bank v. Commonwealth, 19 Pa. 144; County of Cumberland v. Boyd, 113 Pa. 52, 4 Atl. 346. In Eakin v. Raub, 12 Serg. & R. 330, a statement by Gibson, J., is as follows: 'A constitution or a statute is supposed to contain the whole will of the body from which it emanated, and I would just as soon resort to the debates in the Legislature for the construction of an act of assembly as to the debates in the convention for the construction of the Constitution.' Where an article in a constitution on a specific subject (or department) of government contains a complete system in itself, it should not be changed in any particular in judicial construction by reading into it a general article, which in terms is inconsistent therewith, where both articles can stand within their own sphere. Commonwealth v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L. R. A. 568. Where