State Forest Lands

"Public officers have and can exercise only such powers as are conferred upon them by law, and a State is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the Constitution, unless such unauthorized contracts have been afterward ratified by the Legislature; and a State cannot by estoppel become bound by the unauthorized contracts of its officers."

The Commissioner of Forestry is not a constitutional officer, and his powers, therefore, are exclusively derived from the Legislature. The only statute authorizing the sale of forest timber is the Act of February 25, 1901, P. L. 11, which creates your Department and generally defines its powers and duties. The first Section of this Act provides, inter alia, as follows:

"Be it enacted, etc., That there be and is hereby created a Department of Forestry, to consist of the Commissioner of Forestry and four other citizens of the Commonwealth, who together shall constitute the State Forestry Reservation Commission; each of whom shall be appointed and commissioned by the Governor, by and with the advice and consent of the Senate; the Commissioner of Forestry for a term of four years, two of the said citizens for a term of two years and two of said citizens for a term of four years; and thereafter all appointments shall be made by the Governor, by and with the advice and consent of the Senate for a term of four years. The persons so appointed, before entering upon the discharge of their duties shall each take and subscribe to the oath of office prescribed by article seven of the Constitution of Pennsylvania. The Commissioner of Forestry and the Forestry Reservation Commission, so appointed, shall be clothed with all the powers heretofore conferred by law respectively upon the Commissioner of Forestry and the Forestry Reservation Commission, as far the the same are consistent with the provisions of this act, and in addition shall have full power, by and with the consent of the Governor, to purchase any suitable lands in any county of the Commonwealth that in the judgment of said Commission the State should possess for forest preservation: Provided, That in no case shall the amount paid for any tract of land, purchased under the provisions of this act, exceed the sum of five dollars per acre. Said Commission shall also have full power to manage and control all the lands which it may purchase under the provisions of this act, as well as those that have heretofore been purchased and which are now owned by the State under existing laws. Said Commission is also empowered to establish such rules and regulations with reference to control, management and protec

State Forest Lands

tion of forestry reservations, and all lands that may be acquired, under the provisions of this act, as in its judgment will conserve the interests of the Commonwealth; and wherever it shall appear that the welfare of the Commonwealth, with reference to reforestration and the betterment of State Reservations, will be advanced by selling or disposing of any of the timber on forestry lands, the Commission is hereby empowered to sell such timber on terms most advantageous to the State."

This Section was amended by the Act of July 7, 1919, P. L. 727, but on subjects which have no bearing on the disposition of the question now under consideration.

It is obvious that the language above quoted confers the powers to sell and dispose of timber on forestry lands not on the Commissioner of Forestry, but upon the Forestry Commission. By the provisions of the statute the department is composed of two different entities; the Commissioner of Forestry, and the Forestry Reservation Commission. Section 1 after continuing the powers which had been by prior enactments respectively conferred upon the commissioner and the commission to such extent as they were consistent with the later statute, proceeding to define the authority of the Commission, as contra-distinguished from the commissioner. Certain powers are conferred on the Commission by express terms, and then the Section continues:

"And wherever it shall appear that the welfare of the Commonwealth, with reference to reforestation and the betterment of State Reservations will be advanced by selling or disposing of any of the timber on forestry lands, the Commission is hereby empowered to sell such timber on terms most advantageous to the State."

It is followed by other powers expressly conferred on the Forestry Commission. "Expressio unius est exclusio alterius" is a rule well known and often applied in statutory construction. It means that the naming of one person in a statutory provision is an exclusion of any other. Its application to the present statute is irresistible. The Act, having created the office of Commissioner of Forestry and the separate and distinct Forestry Reservation Commission, the conclusion must necessarily follow that powers separately conferred on the one were intended by the Legislature to be denied the other.

This conclusion is further substantiated by a consideration of the Act of 1901 in its entirety, and other legislation granting rights with regard to the state forests and forest lands. The plan of the Act of 1901 is apparent, and the subjects

State Forest Lands

contained are clearly demarked. The first Section, with the exception of the clause continuing consistent powers, above quoted, enumerates the authority of the commission; the third Section contains all the powers of the commissioner, while the remaining provisions deal with the conduct of individuals with regard to state forests and forest lands, the compensation, expenses and bond of the Commissioner, office supplies, appropriation, and certain details as to lands acquired under the authority of Section one.

Several other statutes authorizes the granting of rights with regard to state forests and forest lands, but none confers the power on the Commissioner of Forestry acting alone. Thus the Act of April 15, 1903, P. L. 200, authorizes the granting of certain privileges to street railways companies, but the power is jointly conferred on the commissioner and the Reservation Commission; the Act of March 27, 1919, P. L. 12, authorizes the leasing of portions of state forests for church, school, health and recreation purposes, but the power is conferred upon the department, which means the commissioner and the commission act jointly; the Act of June 4, 1915, P. L. 816, empowers the granting of rights of way to other state forests, but the authority is likewise conferred on the department. No statute has been found giving to the commissioner the authority to grant privileges in, or to dispose of property connected with, the state forest, which is strongly indicative of a policy on the part of the commonwealth that such authority was intended to be withheld from this officer.

From the foregoing, I am of the opinion that the Commissioner of Forestry has no authority to sell timber on state forest lands, and that contracts made by him for this purpose are absolutely void, notwithstanding the party or parties who undertook to thus purchase the timber have entered on the forest lands and have incurred expenses pursuant thereto.

I note your statement that the "contractors" have given bonds, proceeded with their work and have made revenue returns to the department, and also that under the provisions of the purported contracts, which you transmitted with your communication, only such timber can be cut and removed as shall be marked for destruction by the local forester. Unless it clearly appears that these alleged contracts were not made in good faith, and unless the facts disclose it to be absolutely subversive of the welfare of the state, I am of the opinion that it would be consistent with the dignity of the commonwealth for the State Forest Commission to enter into new and valid contracts with the above parties whereby the latter may be permitted to cut and remove such timber as your local

Brillhart's Nomination

forester shall mark, at least to such an amount as may be necessary to reimburse them for the expenses which they have incurred. Persons who have expended money under an honest belief that the contracts were valid should not be compelled to suffer unless the paramount welfare of the state precludes any relief.

In Re: Nominating Petition of G. E. Brillhart as a candidate for member of the Democratic State Committee.

Nomination of candidates-Nominating petition—Amendment When a nominating petition has been found to be defective and there is nothing from which the court could find that there was wilful misrepresentation or any corrupt practice, an amendment will be

allowed.

Objections to nominating petition. C. P. Dauphin County, No. 268, June Term, 1920.

B. B. McGinnis and W. J. Brennan for objections.

Henry, P. J., 52nd Judicial District, specially presiding, April 20, 1920.

There are 112 names upon this nominating petition, the requisite number being 100. The party making the affidavit with respect to the signers admits that he secured only 44 of the signatures and knows nothing of the others. The petition shows on its face that a large number signed the petition subsequent to the making of the affidavit, and therefore the affidavit could not apply to them. The nominating petition is erroneous and defective in these respects. There is nothing about this case from which the Court should conclude wilful misrepresentation or any corrupt practice, and it may well be that a mistake was made in adding names after the making of the affidavit, and the amendment will be allowed.

And now, April 20, 1920, the objections filed to the above nominating petition are sustained, with leave to amend to meet the material error and defect in the petition, such amendment to be filed in the office of the Secretary of the Commonwealth on or before 12 o'clock noon of Friday, April 23, 1920. In default of such amendment the nominating petition is set aside. The Prothonotary is directed to certify this order to the Secretary of the Commonwealth.

Murray's Nomination

In Re: Nominating Petition of H. M. Bulger as a candidate for member of the Democratic State Committee.

Nomination of candidates-Nomination petition-Amendment

In the absence of fraud or wilful msrepresentation, a defective nomination petition may be amended.

Objections to nominating petition. C. P. Dauphin County, No. 269, June Term, 1920.

B. B. McGinnis and W. J. Brennan for objections.

Henry, P. J., 52nd Judicial District, specially presiding, April 20, 1920.

The evidence offered in support of the objections to the above nominating petition, is under the third paragraph of the objecting petition, which charges that the party who made affidavit with respect to the signers, secured only 44 of the names, and that he knew nothing with respect to the signers on lines 69 to 112. The evidence sustains this objection, and the affidavit itself discloses that signatures from 69 to 112 were made on the 6th day of April while the affidavit was made on the 5th and could not have extended to the names subsequently added. There is no evidence of wilful fraud or misrepresentation and an amendment of this apparent defect will be allowed.

And now, April 20, 1920, the 3rd paragraph of the objecting petition is sustained, with permission to file in the office of the Secretary an amended affidavit to correct this defect, on or before 12 o'clock noon of Friday, April 23, 1920. In default of such amendment being filed, the nominating petition is set aside. The Prothonotary is directed to certify this order to the Secretary of the Commonwealth.

In Re: Nominating Petition of James E. Murray as a Candidate for Member of the Democratic State Committee.

Nomination of candidates-Nominating petition-Fraud-Amendment Where the affidavit to a nominating petition is fraudulent and a forgery, no amendment will be allowed.

Objections to nomination petition. C. P. Dauphin County, No. 271, June Term, 1920.

B. B. McGinnis and W. J. Brennan for objections.

Henry, P. J., 52nd Judicial District, specially presiding, April 20, 1920.

The number of signatures on the nominating petition in this case is 134. The requisite number is 100. One sheet of