OFFICIAL OPINION No. 7

OFFICIAL OPINION No. 7 Appropriations-Act No. 95-A, approved July 19, 1957-Department of Health- Interpretation of provision restricting grants under Local Health Administra- tion Law to counties participating as of effective date of Act No. 95-A-Consti- tution of Pennsylvania, Article III, Section 7-Act of August 24, 1951, P. L.1304. The General Appropriation Act of 1957 appropriated funds to the Department of Health for providing aid to county health departments in accordance with the Local Health Administration Law, Act of August 24, 1951, P. L. 1304. The appropriation provision restricted eligibility for such funds to those counties participating under the Local Health Administration Law as of the effective date of Act No. 95-A. This restriction is unconstitutional for it violates the clause of Article III, Section 7, of the Constitution of Pennsylvania forbidding the passage of a local or special law regulating the affairs of counties. Appropriations-Act No. 95-A, approved July 19, 1957-Department of Health- Funds for county health departments as provided in Local Health Administration Law. Any county which now or hereafter meets the requirements of the Local Health Administration Law, Act of August 24, 1951, P. L. 1304, to receive grants from the Commonwealth is entitled to receive the same from the appropriated funds in Act No. 95-A of the 1957 session. Harrisburg, Pa., September 18, 1957. Honorable Berwyn F. Mattison, Secretary of Health, Harrisburg, Pennsylvania. Sir: House Bill No. 1700, Printer's No. 1002, of the 1957 session of the General Assembly, signed by the Governor on July 19, 1957, as Act No. 95-A, contains the following provision among those appro- priating sums to the Department of Health: OPINIONS OF THE ATTORNEY GENERAL "Providing aid to counties in the establishment and mainte- nance of county health departments in accordance with the act of August 24, 1951 (P. L. 1304). Only those counties participating under the act of August 24, 1951 (P. L. 1304) as of the effective date of this act shall be eligible for assist- ance ......................................... 3,000.000" 57 You have requested our advice on the interpretation and effect of the second sentence in the above provision, noting that such sentence would appear to preclude state aid to counties which had not estab- lished a county health department as of July 19, 1957, the effective date of the act. The Act of August 24, 1951, P. L. 1304, 16 P. S. §§ 12001 to 12028, the "Local Health Administration Law," governs the establishment and operation of county health departments in all but first class counties. Section 25 of the act provides for state grants to county departments of health and to eligible municipalities. While that section conditions full payment of grants on the appropriation of sufficient funds1, neither it nor any other section imposes a limitation on the time within which counties must create their health departments in order to be eligible for the grants. Such limitation appears only in the provisions of Act No. 95-A quoted above. Nor is there any requirement that to be eligi- ble for assistance during a biennium a county must create its health department prior to the time the appropriation is made for the bien- nium by the legislature. Section 25 of the act contemplates eligibility to receive grants whenever the health department is created for it provides for an "initial grant" to cover operation of the department "from the date of its establishment to the end of the calendar year in which it is established2" and for "annual grants" during calendar years thereafter3• Several problems concerning the constitutionality of the questioned clause in Act No. 95-A arise. First, is the provision in violation of Article III, § 6, of the Pennsylvania Constitution which forbids amend- ment of a law by reference to its title only? Second, does the pro- vision transgress the requirement of Article III, § 15, that the general appropriation bill embrace only certain subjects of appropriation specified therein (a so-called "rider" being forbidden)? Third, is the clause, in effect, a local or special law regulating the affairs of counties in violation of Article III, § 7? Under the view we take of the prob- lem, we need not consider the applicability of §§ 6 and 15 of Article 1 If sufficient funds are not appropriated to permit maximum grants to be made, the Secretary of Health is to distribute the available funds on an equitable basis. 2 Act of August 24, 1951, P. L. 1304, § 25(a) , 16 P . S. § 12025(a). •Act of August 24, 1951, P. L. 1304, § 25(b) , 16 P . S. § 12025(b) . 58 OPINIONS OF THE ATTORNEY GENERAL III (i.e. first and second questions above). Therefore, we expressly refrain from passing upon those issues; and nothing said herein should be taken as an expression of our views on these questions. The restriction included in Article III, § 7-that the legislature shall not pass any local or special law regulating the affairs of counties -involves a problem of classification. This restriction does not pre- vent the classification of counties according to population in order that special consideration may be given to the varying problems of smaller and larger counties, and the enactment of legislation applying to a class or classes of counties based on population is valid4 • It does, however, prevent the legislature from arbitrarily singling out one or more counties for special treatment. Thus, the "Local Health Ad- ministration Law," supra, does not apply to counties of the first class; and the legislature could have limited its application to counties of the fourth, fifth and sixth classes were there reasonable grounds for so doing. The legislature could not, however, specifically restrict its application to named counties within a class or accomplish the same result in an indirect manner. And while it can condition applicability upon a county's meeting certain requirements if the requirements ap- plied similarly to all counties in the same class, it cannot arbitrarily impose conditions as to eligibility and, thereby, indirectly achieve the passage of a special or local law regulating the affairs of counties. In the present situation we believe that the legislature has enacted a discriminatory condition which falls within the proscription against a local or special law. Our views concerning the impropriety and the unreasonableness of the classification are supported both by case law and the nature of the discrimination. The Pennsylvania Supreme Court has stated that there can be no proper classification of counties except by population.5 Although this statement subsequently has been criticized as too restrictive6, it seems that a classification based on population as well as on any other basis is subject to the test of reasonableness7 ; that is, it must be rationally designed to secure a goal properly within the scope of legislative action. In the present case neither the method of classification nor its design is proper. The classification sets apart those counties which were •See Lloyd v. Smith el al., 176 Pa. 213, 218, 35 At!. 199 (1896) and cases cited therein. •Commonwealth ex rel Fertig et al. v. Patton et al., 88 Pa. 258 (1878); Com- monwealth ex rel Brown v. Gumbert et al., 256 Pa. 531, 100 At!. 990 (1917). 0 Haver ford Township et al. v. Siegel et al., 346 Pa. 1, 28 A. 2d 786 (1942). 7 See Loomi,s v. Philadelphia School District Board of Education, 376 Pa. 428 103 A. 2d 769 (1954); Terenzio el al. v. Devlin, Director, et al., 361 Pa. 602'. 65 A. 2d 374 (1949); Mason-Heflin Coal Co. v. Currie, 270 Pa. 221 113 A. 2d 202 (1921) . ' OPINIONS OF THE ATTORNEY GENERAL 5!J participating on July 19, 1957, from those which were not, population playing no part in the separation. It bears no reasonable relation to a possible goal of stimulating counties to create health departments since it cuts off an incentive to do so without warning. In this con- nection it should be noticed that the classification was not established by the "Local Health Administration Law" of 1951 (where no time limit for participation was set forth), but by the clause in Act No. 95-A of 1957. The classification must be viewed from the time it was created, and the fact that counties had ample time to participate prior to passage of the cutoff provision is irrelevant since during none of that time did any county have notice that there would be a cutoff. We need not consider the propriety of the legislature's establishing a time in the future as the cutoff date. It did not do so. Here, the date carries with it an inbred unreasonableness. A legislative attempt to restrict eligibility to counties specifically named in either Act No. 95-A or the "Local Health Administration Law" would be improper; in either of these cases the prohibition of Article III, § 7, would apply to strike down the provision. We feel that the operation of this section should be the same where the special and local character of the statute is of equal effect, though more in- directly worded. For this reason it is our opm10n that the provision of Act 95-A restricting eligibility for state grants to counties participating in the local health program as of the effective date of the act is unconstitu- tional. You are advised, accordingly, that this provision should be disregarded when making grants from the appropriated sum and that counties which now or hereafter meet the requirements of the Act of August 24, 1951, P. L. 1304, to receive grants from the Commonwealth are entitled to receive the same from the appropriated funds. Very truly yours, DEPAilL\1:E;s"T OF JUSTICE, HARRY J. RUBIN, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General. 60 OPINIONS OF THE ATTORNEY GENERAL