are to be made upon the recommendation and requisition of certain trustees hereinafter referred to, and are to continue so long as said trustees may direct, provided the children, for whose partial support they are made, are attending school, if of proper age and physically able so to do, and provided further that, in no event, shall payments be made for the partial support of any child after such child shall have reached the age at which it may legally be employed under the laws of this Commonwealth. The proportion in which the payments allowed under the act shall be paid by the county and State respectively is not expressly stated, but presumably it is 50 per cent. each.

The administration of the act is committed to a board of not less than five, nor more than seven, women trustees, to be appointed by the Governor in each county desiring to avail itself of the provisions of the act. The trustees are to serve without compensation, but are to be paid their traveling expenses and the expenses incident to the maintenance of headquarters and the appointment of an investigator and a stenographer. A maximum amount to be paid for such expenses and salaries is fixed for counties containing cities of the first class, and lower amounts for counties containing cities of the second and third classes, and for all other counties. The act contains no express provision with relation to the manner in which these expenses and salaries are to be paid, nor does it appear from the language of the act whether these expenses and salaries are to be paid jointly by the State and the proper county, although that would seem to be the fair inference from the general scope of the Act.

Provision is made in Section 4 for the compiling of records of each family in receipt of payments under the act, and it would seem that, when the trustees have determined that a mother, within the terms of the act, is entitled to monthly payments thereunder, and have fixed the amount of the payments, an application for a warrant for the payment, monthly, of one-half the amount fixed is to be made to the Audtior General, and an application for the remaining half is to be made to the proper county treasurer, which applications or requisitions are to be accompanied by a copy of the record of the family, said copy to be verified by the oath of an investigator and approved by at least a majority of the trustees.

Notwithstanding some obscurity of expression both in the title and in the body of the act, its general purpose is discernible and may be said to be joint assistance by the State and proper county to indigent, widowed or abandoned mothers, to the end that they may be enabled to rear and educate their children of tender years in their own homes, and thereby avoid the necessity of committing such children to the care of private or public charitable institutions. This would seem to be a commendable purpose, and in line with the general policy of the Commonwealth to afford assistance to its indigent 4-23-1915

citizens. Large appropriations are made biennially for the maintenance and treatment in sanitoria and dispensaries of indigent persons afflicted with tuberculosis, and the State maintains a number of State hospitals for the maintenance and treatment of indigent residents physically or mentally afflicted.

Whether young children, whose widowed or abandoned mothers are unable to maintain them, are to be maintained and educated in charitable institutions or in their homes, as proposed by this act, would seem to be largely a question of public policy for the determination of the legislative branch of the government; but, inasmuch as this act expressly provides that after investigation by, and upon the recommendation of, the trustees, whose appointment is provided for therein, payments shall be made monthly, out of the public moneys in the State Treasury, directly to the mothers contemplated by the act, the question naturally arises whether this act contravenes Section 18 of Article III of the Constitution, which provides that "No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes, to any person or community, nor to any denominational or sectarian institution, corporation or association."

This section seems to be a limitation upon the general power of the legislature to make appropriations. It is a fundamental proposi tion of our Constitution that no money shall be paid out of the State Treasury except upon appropriations made by law and on warrants drawn by the proper officer in pursuance thereof. For many years appropriations have been made, both to charitable and educational institutions exclusively under the control of the Commonwealth, and to such institutions under private control; but it is provided in Section 17 of Article III, in substance, that no appropriation shall be made to an institution not under the absolute control of the Commonwealth (except Normal Schools), except by a vote of twothirds of all the members elected to each House.

By Section 19 of Article III, the General Assembly is authorized to make appropriations to institutions wherein the widows of soldiers are supported or assisted, or the orphans of soldiers are maintained or educated, but such appropriations must be applied exclusively to the support of such widows and orphans.

In addition to these constitutional provisions, the general Act of June 23, 1911 (P. L. 1119), prohibits the making of appropriations to unincorporated charitable, reformatory or correctional institutions, organized or established after the date of the approval of the act.

It is not entirely clear whether the Legislature, in appropriating $200,000.00 "in order to carry the provisions of this act into effect," and in directing this sum to be apportioned to the counties according

to population, intended the appropriation to be an appropriation to such counties as, being desirous of obtaining the benefit of the act, should severally provide amounts of money equal to the several sums so apportioned to the said counties, which joint sums should be expended for the purposes contemplated by the act, or whether the appropriation was intended to be an appropriation made directly to such mothers as might be recommended by the trustees, on condition that the county in which they were residents should also provide a sum equal to such county's apportionment of the State funds. Indeed, it is to be further observed that there is language in the second section of the act which might be construed to mean that the appropriation was intended to be an appropriation to the trustees when appointed. It is provided in that section that the amounts apportioned to the various counties shall be placed to the credit of the trustees upon the books of the State Treasury.

Plainly, therefore, the true and proper meaning and construction of the act is involved in doubt, and the question of its constitutionality is largely dependent upon the interpretation to be placed upon its language. After an Act of Assembly has been certified to the Governor as having been duly passed by both Houses and has received the approval of the Governor, this Department has, of course, no jurisdiction or authority to pronounce it unconstitutional-that power being exclusively vested in the judiciary. As every act duly passed and approved is presumed to be constitutional until a court of competent jurisdiction has pronounced it unconstitutional, an expression of the opinion of this Department at this time upon the constitutionality of this act could serve no good purpose, as such opinion would not be binding upon any individual or any department of the State Government.

You do not state in your communication whether the apportionment provided for by the act has been made, or whether the trustees have been appointed in any county, or whether any county of the State has provided an amount equal to the amount apportioned to it out of State funds for the purpose of the act, or whether any applications have been made to you by trustees, under Section 4 of the act. Until an application has been made, under Section 4 of the act, for a warrant, you are not required to take any official action, except to join with the State Treasurer in making the apportionment provided for in the second section.

You are accordingly advised that, if you have not already done so, you should join with the State Treasurer in making an apportionment of the appropriation of $200,000.00 to the counties of the Commonwealth, according to their respective population as shown by the census of 1910, which proportionate amounts should be set out on the books of your Department, and of the Treasury Department, to

the credit of the various counties, to be drawn against by the trustees of the respective counties. This is the only official action required of you until trustees have been appointed in such counties as have provided, for the purposes of the act, sums of money equal to the amounts apportioned to them.

If, upon receipt of an application for a warrant payable to a recipient of the benefits of the act, you have a substantial doubt as to the constitutionality of the act, and consequently as to the legality and propriety of the issuing of a warrant thereunder, you may decline to draw such warrant, and should, I respectfully suggest, co-operate with the trustees making application therefor, in the institution of mandamus proceedings for the purpose of securing a judicial construction of the act and a judicial decision upon the question of its constitutionality.

Yours faithfully,

JOHN C. BELL,
Attorney General.

SALARIES DE FACTO JUDGES.

The five judges in Philadelphia appointed under provision of the Act of March 29, 1913, were de facto judges and entitled to the salary for the time they served, notwithstanding said Act of Assembly was afterwards declared unconstitutional.

Office of the Attorney General,

Harrisburg, Pa., October 1, 1913.

Hon. A. W. Powell, Auditor General, Harrisburg, Pa.

Sir: Replying to your recent request, I am of opinion that the five persons, learned in the law, severally appointed by the Governor to each of the five Courts of Common Pleas of Philadelphia County, pursuant to the Act approved March 29th, 1913, entitled "An act providing for another judge in each of the Courts of Common Pleas of Philadelphia County," and who severally qualified and discharged the duties of their offices during the period of a month and upwards, were de facto judges and entitled to the salaries fixed by law incident to the said office.

In Volume 8 of American and English Encyclopedia of Law, page 800, under the title "De Facto Officers," the principle is laid down as follows:

"A person may be a de facto officer where he holds. and exercises an office which has an irregular or merely potential existence; as, for instance, an office which the legislature has given a city council power to create, but in creating which the city council did not follow the mode prescribed by the statute."

The analogy is obvious; the Legislature had the undoubted power under the Constitution to increase the number of judges in the Courts of Common Pleas of Philadelphia County, but, unfortunately, the Assembly "did not follow the mode prescribed by the Constitution." Each of the five appointments was regular on its face, and emanated from a source, to wit: the Legislature, which had the legal and constitutional power to provide for and authorize the appointments. In a word, therefore, under the principle of law above quoted, and the many authorities to be found in the foot notes supporting it, the appointees were de facto judges.

One of these authorities is so apposite that I shall refer to it somewhat at length. It is the case of in re Ah Lee, reported in 6 Sawyer (U. S., 410), (1878-1880). The pertinent facts were:

The constitution of Oregon authorized the Legislature, when the population should reach two hundred thousand, to district the state into designated circuits, and provide for the election of judges therein. The Legislature passed an act providing for the election of such judges at a general election to be held at a specified time thereafter, and also that the Governor should appoint such judges in the meantime; which was done. It developed, however, that the act was passed and the appointments made before the State had in fact attained the prescribed population. The appointments by the Governor were, therefore, held invalid, but the Court further decided that, although the act was unconstitutional and the appointments by the Governor invalid, still the persons so appointed under the act, and performing the duties of judges of said courts, were judges de facto. The principle of law announced by the court as arising out of the above facts, as stated in the syllabus of the case, is as follows:

"A person in office by color of right is an officer de facto, and his acts as such are valid and binding as to third persons; and an unconstitutional act is sufficient to give such color to an appointment to office thereunder."

Reverting to the case in hand, as I have before said, the persons appointed exercised the powers and discharged the duties incident to the office of Judge of the Courts of Common Pleas of Philadelphia County until the Supreme Court decided that the Legislature, notwithstanding its undoubted power in the premises, had nevertheless irregularly exercised the same in the Act of Assembly in question.