currence of the whole" (a fact which, of itself is sufficient to warrant the conclusion here reached), but the act itself, as above pointed out, further indicates, positively, upon its face, that this was the legisla tive intention. The legislative intention must be determined with regard to the principles of common law expounded in the above cited opinion of Chief Justice Gibson, in accordance with which, during the period of time reasonably required for an appointment by the Governor to fill the vacancy, "it cannot be supposed that the functions of the commission (board) would be suspended, to the detriment of the public, by the loss of one of its members," by death, and to the obstruction of the consummation of the public business, within the time expressly required by the act. I am therefore of opinion, and so advise you, that, upon the grounds stated, the Capitol Park Extension Commission does not cease to exist, nor are its functions suspended, during the reasonable period of time required for the making of an appointment by the Governor to fill the vacancy occasioned by Mr. Knisely's death, and that during such period of time the powers and duties of said commission, including the power to draw money from the State Treasury, pursuant to the provisions of the said Act of 1911, may, in every respect, be exercised and performed by the two surviving members, to wit, Samuel Kunkel and Samuel C. Todd, as if the said vacancy, during the said period of time, did not exist. Very truly yours, WM. N. TRINKLE, Assistant Deputy Attorney General. SALARY REQUISITION. A requisition for salary of a maintenance engineer in the State Highway Department is for the compensation of "necessary labor" within the meaning of the "Sproul" Act and may be honored. Office of the Attorney General, Harrisburg, Pa., June 10, 1913. Hon. A. W. Powell, Auditor General, Harrisburg, Pa. Sir: In your letter of the 29th ult., you request the opinion of this Department to the right of the accounting officers of the Commonwealth to honor the requisition of George H. Biles, Maintenance Engineer of the State Highway Department, for the sum of $300, in payment of his salary for services as Maintenance Engineer for the month of May, 1913. By the Act of May 31, 1911, (P. L. 468), known as the "Sproul Act," the Legislature manifestly intended to provide for the building and maintaining of a comprehensive system of highways throughout the Commonwealth. The said highways are divided by the act into two classes-State Highways and State-aid Highways. The system of State Highways comprises 296 separate and distinct routes. The other class of highways consist of the State-aid Highways constructed at the joint expense of the several municipalities and the Commonwealth, as provided in the said act. Section 6 of said act provides that the system of State Highways shall be "built, re-built, constructed, repaired and maintained by and at the sole expense of the Commonwealth, and shall be under the exclusive authority and jurisdiction of the State Highway Department." By section 11: "The State Highway Commissioner is directed to construct or improve and thereafter to maintain and repair, at the cost and expense of the Commonwealth, the highways forming the plan or system of the State Highways, in the several counties and townships hereinafter mentioned, and such improvement and maintenance shall be made according to specifications to be prepared by the State Highway Department, as regards the character, construction and material to be used; and the said work of construction and maintenance of said State Highways shall be done under the direction and supervision of the State Highway Commissioner." Section 19 provides that the State Highway Commissioner shall: "establish standards for the construction and maintenance of highways in various sections, taking into consideration the topography of the country, the natural conditions and the character and availability of road building material, etc." Section 29 provides that: "The work of maintaining and repairing all State-aid Highways, improved under the provisions of this act, or which shall have been previously reconstructed by State aid, shall be done by the State Highway Department." Section 5 of the act provides that: "The highways designated in this act as State Highways shall be taken over by the State Highway Depart ment from the several counties or townships of the State, Section 3 of the act gives the State Highway Commissioner power: "to make and adopt rules and regulations for conduct- and by this section is given the further specific power "to purchase all machinery, implements, tools and materials of any and every kind incident to or necessary in the construction, building, rebuilding and maintenance of the State Highways hereinafter described, including the right to employ all necessary labor." Section 11 provides that: "The expense of the construction, improvement and maintenance of State Highways provided for in this act, when properly certified by the State Highway Commissioner, shall be audited by the Auditor General, and when audited and allowed shall be paid out of moneys specifically appropriated for this purpose by warrants drawn therefor by the Auditor General upon the State Treasurer." Section 33 provides as to the State-aid Highways that: "The total cost of the improvement and maintenance of the State-aid Highways constructed under the provisions of this act, as provided by the terms of the contract, or otherwise as herein provided, when properly certified by the State Highway Commissioner, shall be audited by the Auditor General and when audited and allowed shall be paid out of moneys specifically appropriated for this purpose, by warrants drawn therefor by the Auditor General upon the State Treasurer." By section 37 the sum of $3,000,000, or so much thereof as may be necessary in establishing and carrying on the work of the Department. is hereby appropriated for the purpose of maintenance, I understand the facts to be that the duty thus enjoined upon the State Highway Commissioner by the mandatory provisions of this act, of properly and economically doing the work of maintaining the State and State-aid Highways established by the said act, necessitates the employment of a maintenance engineer, and that the services covered by the requisition in question are services rendered by Mr. Biles as such maintenance engineer, in the performance of the said maintenance work-services without which it would be impossible to do the work and perform the duty which the statute imposes upon the Highway Department, in order that this great vast highway improvement of the greatest public importance may be accomplished in accord with the legislative intent. "Where the law commands anything to be done, it authorizes the performance of whatever may be necessary for executing its commands." II Lewis' Sutherland Statutory Construction, 508; "Whenever a power is given by statute everything nes- II Lewis' Sutherland Statutory Construction, 508; Duarris on Statutes, 514-17; Commonwealth v. Conyng- This being a salutary and remedial statute, enacted to provide, in the interest of the public welfare (pro bono publico) a great public improvement, the above quoted provisions thereof should, under well settled principles of law, be given a liberal construction, so as to carry the evident purpose of the enactment into effect. Giving the statute, therefore, that liberal construction which, under the law, should be given to all statutes of its kind, and with proper regard to the context, the subject matter, the effects and consequences and spirit and reason of this act, I am of opinion that the requisition submitted, if it be for maintenance engineering services, which were necessary to the performance of the duty of properly maintaining the State Highways, which, as we have seen, is clearly imposed upon the Highway Department by the above quoted provisions of the Sproul Act, is a requisition for the compensation of "necessary labor," within the meaning of that act, such as the Highway Commissioner is not only given the implied, but the express, power to employ. It therefore follows that said requisition may be lawfully honored. Very truly yours, WM. N. TRINKLE, Third Deputy Attorney General. GENERAL APPROPRIATION BILL. The State Highway Department is a branch of the Executive Department. An appropriation for the construction of highways is an ordinary expense of the State Highway Department and may properly be included in the General Appropriation Bill. Office of the Attorney General, Harrisburg, Pa., July 23, 1913. Hon. A. W. Powell, Auditor General, Harrisburg, Pa. Sir: Your communication of the 22nd inst., addressed to this Department, is at hand, and the questions therein raised, by reason of their importance, require prompt consideration and disposition. After directing attention to Section 15 of Article III of the Constitution, which reads as follows: "The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the Commonwealth," etc. and to Section 1 of Article IV, which reads: "The executive department of this Commonwealth shall consist of a Governor, Lieutenant Governor, Secretary of the Commonwealth, Attorney General, Auditor General, State Treasurer, Secretary of Internal Affairs and a Superintendent of Public Instruction," you ask to be advised whether "payments can legally be made out of appropriations made by items in the general appropriation bill to the departments other than those specifically mentioned in the last quoted paragraph-for example: The Department of State Police, the Highway Department, and others," and you further inquire "whether or not expenditures for the constrution of highways, etc. may be considered ordinary expenses of the Executive Department, within the meaning of Article III, Section 15, above quoted." In this connection, you addressed to the State Highway Commissioner, under the same date, a letter which has been referred by him to this Department. This letter reads as follows: "I am not at present fully satisfied that appropriation to your Department, by an item of the General appropriation Bill only, is a constitutional method. The matter is of such importance, and the expenditures so large, 3-23-1915 |