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COMMONWEALTH v. HALLBERG (06/26/53)

June 26, 1953

COMMONWEALTH, APPELLANT,
v.
HALLBERG



Appeal, No. 15, March T., 1952, from judgment of Superior Court, April T., 1950, No. 172, affirming order of Court of Quarter Sessions of Somerset County, Sept. Sessions, 1950, No. 2, in case of Commonwealth of Pennsylvania v. Roy W. Hallberg. Judgment reversed.

COUNSEL

Randolph C. Ryder, Deputy Attorney General, with him Frank A. Orban, District Attorney, and Robert E. Woodside, Attorney General, for appellant.

Daniel J. Snyder, Jr., with him Kunkle & Trescher, Joseph N. Cascio, Clarence L. Shaver, Shaver & Heckman and Fike & Cascio, for appellee.

S. Edward Hannestad, for Legislative Reference Bureau, amicus curiae.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 374 Pa. Page 556]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Roy W. Hallberg was arrested on an information charging him with violation of section 905 of The Vehicle Code of May 1, 1929, P.L. 905, as amended, in that he allegedly operated over a state highway route in Somerset County a motor vehicle which was in excess of the maximum width permitted by law without having obtained a permit authorizing such operation. A hearing was had before a Justice of the Peace as the result of which judgment was entered for the Commonwealth and a penalty of $50.00 and costs, or an alternative sentence of ten days in the county jail, was imposed. Hallberg appealed to the Court of Quarter Sessions of Somerset County, where a hearing was had de novo. The defendant demurred to the evidence and moved to quash the information; the court granted this motion. The Commonwealth appealed to the Superior Court, which affirmed the order of the court below. We thereupon allowed this appeal.

The question involved turns entirely upon the effect to be given to section 1 of the Act of June 5, 1937, P.L. 1718, amending section 905 of The Vehicle Code. Section 905, before amendment, contained a subsection, (a), which provided that the Secretary of Highways and local authorities in their respective jurisdictions might, under certain circumstances, issue a special permit authorizing the applicant therefor to operate a vehicle of a size and weight exceeding the maximum specified in the act. It also contained a subsection, (b), which provided that in the event of a catastrophe or accident affecting the public safety or convenience such a permit might be issued subsequent to the operation or movement of the vehicle. It further contained a paragraph entitled "Penalty," which provided that any person operating a vehicle of a size or weight exceeding

[ 374 Pa. Page 557]

    the maximum specified in the act, without first having obtained a permit so to do, should, upon summary conviction before a magistrate, be sentenced to pay a fine of $50.00 and costs, and, in default of the payment thereof, should undergo imprisonment for not more than ten days.

An Act of June 22, 1931, P.L. 751, had amended section 905 in respects here immaterial, but it continued subsection (b) and the penalty paragraph unchanged.

An Act of July 16, 1935, P.L. 1056, had purported to amend only subsection (a) of section 905; accordingly subsection (b) and the penalty paragraph were not set forth in that amendatory act.

Then came the Act of June 5, 1937, P.L. 1718, here in question. It purported to amend section 905; it did add a provision to subsection (a), but it did not set forth subsection (b) and the penalty paragraph at all.

Defendant contends that the failure to include the penalty paragraph in the 1937 Act amounted to an abrogation thereof from The Vehicle Code. To support this contention he points to Article 3, ยง 6, of the Constitution, which provides that "No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length," and to section 81 of the Statutory Construction Act of May 28, 1937, P.L. 1019, which provides that "Whenever a law re-enacts a former law, the provisions... only of the former law as are omitted from the re-enactment shall be deemed abrogated,..." In our opinion neither of these provisions justifies the reliance placed thereon by defendant. On the contrary, the constitutional provision requires that so much of the law as is amended shall be published at length ; in the present instance the announced purpose was to amend the entire section

[ 374 Pa. Page 558905]

, not only subsection (a). If it had really been intended to eliminate subsection (b) and the penalty clause such elimination constituted in itself an amendment of the section, and therefore not only subsection (a) but also subsection (b) and the penalty clause, in short, the entire section 905, had to be published at length if the constitutional mandate was to be observed. As far as section 81 of the Statutory Construction Act is concerned, it relates to a re-enactment of a former law, and in a re-enactment provides that such provisions only of the former law as are omitted from the re-enactment should be deemed abrogated. But the real question is how such "omission" is to be indicated. The answer to that question in the case of amendatory laws is to be found in section 71 of the Statutory Construction Act which, implementing the Constitution, provides that "The Secretary of the Commonwealth shall, in printing amendatory laws, cause to be printed the section or part of the law only as re-enacted.*fn1 In the section or part of the law re-enacted, the secretary shall cause to be printed between brackets, the words, phrases, or provisions of the existing law, if any, which have been stricken out or eliminated by the adoption of the amendment, and he shall cause to be printed in italics all new words, phrases or provisions, if any, which have been inserted into or added to the law by the passage of such amendment."*fn2

[ 374 Pa. Page 559]

It would seem entirely clear from this provision that, where the legislature intends to eliminate any section or part of a law, it is not enough merely to delete the publication of that section or part, but the entire section or part, including the section or part to be eliminated, must be published at length, with the section or part to be eliminated enclosed in brackets. If the purpose is declared merely to amend a subsection, as in the amendatory Act of July 16, 1935, P.L. 1056, it is sufficient to re-enact and publish at length only that subsection; and other parts of the section would then remain unaffected. If, on the other hand, the declared purpose is to amend a section, as in the amendatory act of June 5, 1937, P.L. 1718, the entire section must be re-enacted and published at length, including any subsection or part which it is intended to abrogate, which subsection or part must be placed between brackets; in other words, the intended abrogation must be affirmatively disclosed. The object of the Constitutional provision and of section 71 of the Statutory Construction Act is obvious, namely, to enable both the legislators themselves and all persons interested in the legislation to see exactly the changes made between the existing law and the re-enactment, without the necessity of referring to the former for comparison (Commonwealth v. Cooper, 277 Pa. 554, 560, 121 A. 502, 505; Wilkes-Barre v. Pennsylvania Public Utility Commission, 164 Pa. Superior Ct. 210, 216, 63 A.2d 452, 455, 456), whereas, if the ...


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