OPINION BY MR. CHIEF JUSTICE JONES, January 16, 1961:
Clarence P. Bowers, the plaintiff, was appointed by the Governor on June 20, 1955, as a member of the Pennsylvania Labor Relations Board for a term to expire on June 2, 1959. The appointment was made under authority conferred upon the Governor by Section 4(a) of the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, No. 294, as amended, 43 PS § 211.4(a), and was duly confirmed by the State Senate
Bowers instituted this action of mandamus in the Court of Common Pleas of Dauphin County against the members of the Pennsylvania Labor Relations Board, the Secretary of Labor and Industry, the Auditor General and the State Treasurer, seeking to compel the members of the Labor Relations Board and the Secretary of Labor and Industry to recognize him as a member of the Labor Relations Board and to permit him to participate in the deliberations and actions of the Board and to perform the normal and lawful functions of a member of the Board until the expiration of the term specified in the Commission evidencing his appointment. The plaintiff also sought judgment in his favor requiring the Secretary of Labor and Industry to continue to certify to the Auditor General and the State Treasurer the amount of salary due him as a member of the Labor Relations Board and requiring the Auditor General to cause warrants to be drawn for the payment of such salary and the State Treasurer to pay the salary so warranted.
The defendant officials, represented by the Attorney General of the Commonwealth, filed preliminary objections to the complaint on the ground that it failed to state a cause of action for the assigned reason, inter alia, that the Governor had acted in strict compliance
The court below filed an opinion holding that the Governor could not dismiss the plaintiff as a member of the Pennsylvania Labor Relations Board without cause and, accordingly, entered an order dismissing the preliminary objections and giving the defendants thirty days in which to answer the complaint, thus leaving for further litigation the question whether or not the plaintiff had been dismissed for cause.
The defendants then filed a responsive answer to the complaint, averring new matter to which the plaintiff filed a reply. By agreement of counsel the case was tried to the court without a jury.
The trial judge concluded that the defendants had failed to prove that the plaintiff was removed for cause and, thereupon, entered an order giving judgment for the plaintiff against the defendants and directing that the plaintiff be paid the emoluments of the office due him. To this order, the defendants filed exceptions which, pursuant to stipulation of counsel, were subsequently dismissed without argument and judgment was then entered in favor of Clarence P. Bowers, the plaintiff, and against the defendants, from which judgment the defendant officials have now appealed.
All public officers are, of course, removable for cause. In McSorley v. Pennsylvania Turnpike Commission, 390 Pa. 81, 86, 134 A.2d 201 (1957), we so recognized in pointing out that: "The initial enjoinder of Article VI, Section 4, is that `All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous
However, in the instant case, the defendants have acquiesced in the conclusion of the court below that they failed to prove cause as the motivating impetus of the Governor's attempted removal of the plaintiff. The sole question of law, therefore, on this appeal, is, as stated in appellants' brief: "May the Governor of Pennsylvania, at his pleasure, remove a member of the Pennsylvania Labor Relations Board from office?" To that question we shall now address ourselves.
In Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 123, 125 A.2d 354 (1956), we declared it to be ". . . established in this State beyond respectable controversy that, where the legislature creates a public office, it may impose such terms and limitations with reference to the tenure or removal of an incumbent as it sees fit. There is nothing in the Constitution prohibiting such action while, on the other hand, Article XII, Section 1, expressly admits of it." See, in accord: Marshall Impeachment Case, 360 Pa. 304, 310-11, 62 A.2d 30 (1948); Suermann v. Hadley, 327 Pa. 190, 200, 193 Atl. 645 (1937); Weiss v. Ziegler, 327 Pa. 100, 104, 193 Atl. 642 (1937); Milford Township Supervisors' Removal, 291 Pa. 46, 49-51, 139 Atl. 623 (1927); Commonwealth ex rel. Vesneski v. Reid, 265 Pa. 328, 333, 108 Atl. 829 (1919); Bowman's Case, 225 Pa. 364, 368, 74 Atl. 203 (1909). Confirmation of this
For example, by Section 201 of the Milk Control Law of April 28, 1937, P.L. 417, 31 PS § 700j-201, the legislature, after creating "an independent administrative commission to be known as the Milk Control Commission", composed of three members to be appointed by the Governor and confirmed by the State Senate, for staggered terms of six years each, specifically prescribed that "The Governor may remove any commissioner for inefficiency, neglect of duty or misconduct in office: Provided, That he is given a copy of the charges against him and an opportunity to be publicly heard in person or by counsel in his own defense upon not less than ten days' notice, and that the Governor file with the Department of State a complete statement of all charges made against such commissioner, together with a complete record of the proceedings and his findings thereon."
It is too plain for argument that, by this provision of the Milk Control Law, the legislature deliberately and effectively banished any thought of power in the Governor to remove, at his pleasure, a member of the Milk Control Commission. Obviously, if the Governor could also remove such a commissioner at his pleasure by virtue of Article VI, § 4, of the Constitution, he would not need trouble himself to make charges of inefficiency, neglect of duty or misconduct in office against an incumbent commissioner, whom he desired to remove, and follow the detailed procedure meticulously spelled out by § 201 of the Milk Control Law. See, also, Section 4 of the Act of March 31, 1937, P.L. 160, 66 PS § 455, which enumerates the specific causes for which the Governor may remove a member of the Pennsylvania Public Utility Commission and provides for the filing of charges, notice, and a public hearing
It is manifest, therefore, that whether the legislature in creating an appointive office has evidenced by its enactment an intention that the tenure of the appointee shall not be subject to termination at the pleasure of the appointing power presents a pure question of statutory construction which is peculiarly and exclusively the function of the judiciary to resolve. Such is the problem with which we dealt in the Watson case, supra, and such is, likewise, the scope of our present responsibility.
The Pennsylvania Labor Relations Act,
The appellants would have us treat the emphasized portion of the foregoing statutory provision as a complete nullity and of no significance whatsoever. According to their contention, the specified provision might just as well have not been included in the carefully worded Act, notwithstanding that we are admonished by long established and firmly entrenched
Watson v. Pennsylvania Turnpike Commission, supra, was concerned with the attempted removal by the Governor, without cause, of a member of the Pennsylvania Turnpike Commission. We there had occasion to interpret the statutory provision contained in Section 4 of the Act of May 21, 1937, P.L. 774, No. 211, 36 PS § 652d, which provided that members of the Turnpike Commission should be appointed to ten-year terms, the expiration dates of which were fixed at staggered intervals. We interpreted the legislative intent evidenced by this arrangement as follows: "The purpose of the foregoing provision as to the terms of office of the Commissioners (i.e., those first to be appointed and
The legislature by providing in the Pennsylvania Labor Relations Act staggered expiration dates for fixed terms of Board members of a duration which, if fulfilled, would extend beyond the incumbency of the appointing Governor, thereby evidenced a desire and intent (just as in the case of the Act creating the Pennsylvania Turnpike Commission) that this important Board should at all times be in position to benefit from the counsel of experienced members who have acquired over the years of their tenure a knowledge and understanding of the Board's work so essential to a thoughtful and prudent solution of the many complex problems
The legislature has shown that, when it creates an administrative agency and provides that its members shall be appointed for fixed terms with staggered expiration dates, the intent thereby evidenced is that such members are not removable by the appointor at his pleasure. For instance, where, in a statute so phrased, the legislature has desired that the appointor may remove appointees at his pleasure, it has incorporated an express provision to that effect. Thus it is that, when Section 8(a) of the Parking Authority Law of June 5, 1947, P.L. 458, as amended, 53 PS § 348(a), was enacted providing that the powers of a municipal parking authority shall be exercised by a Board composed of five members, that each of such members shall be appointed for a term of five years, and that such terms shall expire at staggered intervals, the legislature expressly included a provision that "Members of the board may be removed at the will of the appointing power." If the fixed five year terms with staggered expiration dates, provided by the Parking Authority Law, did not imply, as a matter of statutory construction,
The instant case is not to be distinguished, in principle, from Watson v. Pennsylvania Turnpike Commission, supra, upon which the court below properly relied in entering judgment for the plaintiff and against the defendants.
The foregoing is the decisional basis upon which the judgment for the plaintiff entered by the court below will be affirmed.
The writer is of the further opinion, which he feels duty-bound to express, that there is an additional compelling reason why the Governor may not remove, at his pleasure, a member of the Pennsylvania Labor Relations Board.
It is implicit in the American form of government, as ordained by the Constitution of both the United States and Pennsylvania, that the government consist of three co-ordinate branches, legislative, executive and judicial, and that one branch should not impinge on the province of another. Any interference by a member of the executive department of government with the tenure of an incumbent member of a quasi-judicial board or commission would plainly offend against this basic constitutional concept. The Supreme Court has twice declared that the President of the United States lacks power to remove without cause an appointed member of an administrative agency which possesses and exercises judicial powers: Wiener v. United States,
In Humphrey's Executor v. United States, supra, the plaintiff's decedent had been appointed to the Federal Trade Commission by President Hoover, pursuant to Section 1 of the Federal Trade Commission Act of September 26, 1914, 38 Stat. 717, as amended, 15 U.S.C.A. § 41, which provides for the appointment of five members of the Commission for fixed seven-year terms with staggered expiration dates. President Roosevelt removed Humphrey from the Commission on the ground that "the aims and purposes of the administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection." The Supreme Court was unmoved by the argument that a power vested in the President to remove an appointee at his pleasure would be conducive to more responsible and more efficient government. On the contrary, the court found merit in the opposite view. After noting that the Federal Trade Commission is, in part, a quasi-legislative and quasi-judicial body, the Supreme Court declared (pp. 629-630) that "The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require
"The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings `should be free from the remotest influence, direct or indirect, of either of the other two powers.' Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice STORY in the first volume of his work on the Constitution, 4th ed., § 530, citing No. 48 of the Federalist, said that neither of the departments in reference to each other `ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.' And see O'Donoghue v. United States, supra [289 U.S. 516], at pp. 530-531.
"The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department,
That the Pennsylvania Labor Relations Board possesses judicial powers and performs duties of such nature is too plain for question. See §§ 7, 8 and 9 of the Pennsylvania Labor Relations Act, as amended, 43 PS §§ 211.7, 211.8 and 211.9. Specifically, § 8(c) provides that at a hearing on a charge of unfair labor practice, — "If, upon all the testimony taken, the board shall determine that any person named in the complaint has engaged in or is engaging in any such unfair labor practice the board shall state its findings of fact, and issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such reasonable affirmative action, including reinstatement of employes discharged in violation of clause (c) of subsection (1) of section six of this act, with or without back pay, as will effectuate the policies of this act. Such order may further require such person to make reasonable reports, from time to time, showing the extent to which the order has been complied with. If, upon all the testimony, the board shall be of the opinion that the person or persons named in the complaint has not engaged in or is not engaging in any such unfair labor practice, then the board shall make its findings of fact and shall issue an order dismissing the complaint." And, on appeal from a decision of the Board to any common pleas court (County Court in Allegheny County), § 9(a) of the Pennsylvania Labor Relations Act, 43 PS § 211.9(a), provides that "The findings of the board as to the facts, if supported by evidence, shall be conclusive." (Emphasis supplied). Such conclusiveness has the adjudicatory quality of a finding by a court of first instance.
In Wiener v. United States, supra, the plaintiff had been appointed to membership on the War Claims Commission by President Truman pursuant to authority granted by Section 2(a) of the War Claims Act of 1948, as amended, 62 Stat. 1240, 50 App. U.S.C.A., § 2001(a). Wiener was subsequently removed, without cause, by President Eisenhower for the assigned reason, — "I regard it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection." The Supreme Court, noting that the Commission was a quasi-judicial body, held that the President was without any such power of removal, saying (at page 356), "If, as one must take for granted, the War Claims Act precluded the President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing."
The constitutional debates, to which the appellants' brief makes extensive reference, while interesting as always, are not persuasive as to the meaning of Article VI, § 4. It is highly questionable, moreover, whether such debates are even relevant upon a judicial inquiry as to the meaning of a particular constitutional provision. We have held a number of times that the debates on the floor of the legislature on a pending bill are not relevant in ascertaining the legislative meaning of the eventuating statute. See Martin Estate, 365 Pa. 280, 283, 74 A.2d 120; National Transit Company v. Boardman, 328 Pa. 450, 454, 197 Atl. 239; Tarlo's Estate, 315 Pa. 321, 324-25, 172 Atl. 139. In Duplex Printing Press Company v. Deering, 254 U.S. 443, 474, the Supreme Court of the United States said, "By repeated decisions of this court it has come to be well established
Inasmuch as the Pennsylvania Labor Relations Board performs judicial functions, inter alia, the Governor should be held to be without constitutional power to remove a member of the Board at his pleasure.
Briefly stated, the ratio decidendi of our affirmance in this case of the judgment for the plaintiff entered by the court below is that the plain language of § 4(a) of the Pennsylvania Labor Relations Act requires the same judicial construction that we placed upon similar language in the Act creating the Pennsylvania Turnpike Commission. See Watson v. Pennsylvania Turnpike Commission, supra.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
I join in the able, in fact, magnificent, Dissenting Opinion written by my brother BENJAMIN R. JONES in this case. The purpose of this separate dissent is merely to say that while Justice JONES disagrees with the Watson case,
DISSENTING OPINION BY MR. JUSTICE BENJAMIN R. JONES:
I dissent from the conclusion reached by a majority of this Court that the Governor of the Commonwealth lacked the power to remove Clarence P. Bowers as a member of the Pennsylvania Labor Relations Board. The basis of my dissent is that the statute which created the Pennsylvania Labor Relations Board does not reveal any legislative intent that a member of the Pennsylvania Labor Relations Board shall not be subject to removal at the pleasure of the Governor.
This appeal presents a narrow, but highly important,
On June 20, 1955, Clarence P. Bowers was appointed by the then Governor, George M. Leader, to membership on the Pennsylvania Labor Relations Board "with the advice and consent of two-thirds of all the
Bowers then instituted a mandamus action in the Court of Common Pleas of Dauphin County against the Pennsylvania Labor Relations Board (herein called Board), the two remaining members of said Board, the Secretary of Labor and Industry, the Auditor General and the State Treasurer to compel them to recognize him as a member of said Board and to pay him the salary attached to that office. Preliminary objections filed on defendants' behalf were dismissed. An answer, inclusive of new matter, and a reply thereto having been filed, the parties were heard, by agreement, before the court without a jury; after hearing, the court below entered judgment in favor of Bowers and against the defendants. From the entry of that judgment this appeal was taken.
Bowers' status as a "public officer" is beyond question (Smiley v. Heyburn, 389 Pa. 594, 133 A.2d 806) and the power of the Governor, at will, to remove Bowers from his office must arise, if at all, from the second sentence of Article VI, § 4 of the Pennsylvania Constitution which Article reads as follows: "All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed officers, other than judges of the courts of record and the Superintendent of Public
Resolution of the present issue depends upon an interpretation of the language of this Article of the Constitution.
I am convinced that it was the intent of the Convention of 1873 which framed Article VI, § 4, that all appointed public officers with the two named exceptions, were to be subject to removal at the pleasure of the appointing power. This conviction arises from an examination and study of the debates in and the action of the Convention of 1873:
The construction and interpretation of the provisions of Article VI, § 4 have been before this Court on numerous occasions. Unfortunately, some of our decisions appear to have resulted in some confusion and uncertainty, particularly in two areas: (1) the right of the legislature, if any, in the creation of non-constitutional or legislative offices, to restrict or limit the "appointing power" (which appoints the incumbents of
Houseman v. Commonwealth, 100 Pa. 222 — the first case which arose under Article VI, § 4 — held that the term "officers" in Article VI, § 4 included municipal, as well as state, officers and that an appointed municipal officer (a collector of delinquent taxes in Philadelphia and a nonconstitutional officer) was removable at the will and pleasure of the appointing power. Lane v. Commonwealth, 103 Pa. 481, upheld the right of the Governor to remove at his pleasure the recorder of Philadelphia (a nonconstitutional officer) who had been appointed by a previous Governor for a statutorily fixed term of ten years.
Bowman's Case, 225 Pa. 364, 74 A. 203, involved the removal of an elected constitutional officer — a justice of the peace — by a statutorily authorized method and the sole question therein was whether such statutory provision was in conflict with the third sentence of Article VI, § 4 dealing with elected officers. In holding invalid this statutory method of removal, the Court, venturing beyond the immediate issue, stated: ". . . for, though others filling purely legislative offices may be without the constitutional provision as to removal, he [a justice of the peace] is clearly within it." (p. 368). This judicial insinuation that the constitutional provision was inapplicable to the removal of certain legislative officers, i.e., officers in legislatively created offices, although dicta, has been construed as a determination or a ruling that, despite the provisions of Article VI, § 4, the legislature has the right to create nonconstitutional offices the incumbents of which are subject
In Seltzer v. Fertig, 237 Pa. 514, 85 A. 869, the power of a register of wills to remove an assistant clerk of the Orphans' Court (a constitutional officer) at his pleasure was upheld and in Commonwealth ex rel. Lowell v. Hoyt, 254 Pa. 45, 98 A. 782 (a per curiam opinion), the power of county commissioners to remove at pleasure an inspector of weights and measures (a nonconstitutional officer) was upheld and the following language in the lower court's opinion approved (p. 53): "It is entirely settled that when the Constitution has declared the grounds or the mode of removal the legislature has no power to authorize removal for any other reason or in any other mode; it cannot provide additional causes, restrict or lessen the causes, or alter the method". (Emphasis supplied). Hoyt is consonant with both the expressed intent of the framers of Article VI, § 4 and the language thereof.
In Commonwealth ex rel. Vesneski v. Reid et al., 265 Pa. 328, 108 A. 829, a borough council had attempted to remove an elected burgess (a nonconstitutional officer) and we held that he could be removed only by the methods provided under Article VI, § 4, relying on Commonwealth v. Weir, 165 Pa. 284, 30 A. 835.
In Georges Township School Directors, 286 Pa. 129, 133 A. 223, certain taxpayers, proceeding under the provisions of the School Code of 1911, sought the removal of school directors (elected officers) in the court of common pleas. The sole issue was the constitutionality of the statute under which these proceedings were instituted. The school directors argued that they were subject to removal only if convicted of some misbehavior or crime and in the manner prescribed by Article VI, § 4, and that the statutory provision providing another method of removal was invalid. The actual ruling in Georges was that the statutory provision in the School Code of 1911 was simply an amendment of a statute which antedated the Constitution of 1874 and was not in conflict therewith. The Court stated: "The constitutional method of removal must be resorted to, where applicable, for it is `exclusive and prohibitory of any other mode which the Legislature may deem better or more convenient': Com. v. Benn, 284 Pa. 421, 428". (p. 133), and, referring to appointive officers, the Court recognized that the appointing power had the right to remove at its pleasure those officers — state, county and municipal — which it had appointed. After distinguishing between constitutional officers (those which the Constitution expressly provides shall be chosen) and legislative or non-constitutional officers (those provided by acts of assembly, passed either before or after the Constitution), the Court then indicated there was a difference between such officers in the following respect: "But where no provision has been made by the legislature for the manner of removal of such an officer [that is, a non-constitutional officer]. . . then he must be deposed, if at all, in the way provided by the fundamental law. If, however, the position has been specifically provided for by the Constitution
Muir v. Madden, 286 Pa. 233, 133 A. 226 — decided nine days after Georges — involved the right of a board of school directors to remove the school board treasurer at their pleasure. Madden was named treasurer (an appointed and non-constitutional officer) for a term of one year under the provisions of the School Code of 1911. Within the year he was removed from his office without cause. The School Code provided for the removal of "officers, employees and appointees" only after due notice and after hearing, if demanded, and then only for certain specified causes. This Court held that Madden, despite the removal provision in the statute, was removable under Article VI, § 4 by the appointing power, i.e., the school board, at its pleasure. The Court stated: ". . . so it cannot be doubted that article VI, section 4, of the Constitution, making such officers removable only at the pleasure of the appointing power, applies to [appointed officers] . . .", relying on Commonwealth v. Sulzner, 198 Pa. 502, 48 A. 476.
In Milford Township Supervisors' Removal, 291 Pa. 46, 139 A. 623, certain taxpayers petitioned the quarter sessions court of Somerset County, under the General Township Act of 1917, to declare vacant the offices of township supervisors (elected non-constitutional officers) because of certain alleged derelictions of duty on the part of the supervisors. The lower court held that the removal provision of the Township Act was invalid because it conflicted with the provisions of Article VI, § 4. On appeal, this Court reversed the court below on the ground that the removal provision in the Township Act was simply an implementation of the constitutional authority of removal for misconduct under
In Milford the Court further said: ". . . it may not be amiss to call attention to the fact that, under the clause last quoted [the second sentence of Article VI, § 4], despite its seeming exclusiveness, the legislature would appear to have the right to regulate the `pleasure'
Lastly, the Court in Milford stated: ". . . although article VI, section 4, is not limited to what are frequently termed constitutional officers, it is not applicable where the legislature, having the right to fix the length of a term of office, has made it determinable, by judicial proceedings, on other contingencies than the mere passage of time" (p. 52). Milford recites no case law in support of this proposition.
Commonwealth ex rel. v. Davis, 299 Pa. 276, 149 A. 176, involved the ousting of an elected mayor imposed as part of a judicial sentence upon his conviction for misbehavior in office and we upheld this method
In Commonwealth ex rel. v. Hiltner, 307 Pa. 343, 161 A. 323, the treasurer of the Borough of Norristown had been appointed by the town council pursuant to the town's charter and under an act of 1831 which provided for an annual term and removal only for cause. In referring to Article VI, § 4, the Court stated: "The language of this section is clear and unequivocal, and it is obvious that it is inconsistent with an existence of a right to remove from office only for cause" and held that the treasurer could be removed at the pleasure of the town council. See also: Commonwealth ex rel. v. Kelly et al., 322 Pa. 178, 185 A. 307.
In Weiss v. Ziegler et al., 327 Pa. 100, 193 A. 642, a board of school directors had appointed Weiss as superintendent of schools for a four year term under a statute which created the office, set a fixed term thereof and provided for removal only for cause. The school board removed Weiss for a cause which the lower court found unjustified. However, the lower court dismissed Weiss' bill in equity upon the ground that under Article VI, § 4, the board had the right to remove Weiss at its pleasure. This Court affirmed solely upon the ground that equity lacked jurisdiction. However, the Court stated: "The legislature may very well say that it is desirable that certain officers should be appointed but, for reasons which it deems sufficient, they should not be subjected to removal at pleasure and, if so minded, the legislature may of course provide for such officers, the Constitution containing no provision to the contrary" (p. 104). See: Commonwealth ex rel. Smillie v. McElwee et al., 327 Pa. 148, 158, 159, 193 A. 628.
In Commonwealth ex rel. Kelley v. Clark et al., 327 Pa. 181, 193 A. 634, the Court passed upon the validity of a statute and amendment thereto which purported
In Commonwealth ex rel. Schofield v. Lindsay, 330 Pa. 120, 198 A. 635, we held that the city council of Pittsburgh could remove a city clerk which it had appointed at its pleasure despite the fact that, under the statute creating the office, a fixed term had been established and removal for misbehavior provided. The court stated, inter alia, ". . . Any day after the relator was appointed city clerk he could have been removed by the appointing power regardless of either phrase because the Constitution lodges the power of removal in the appointing power, and what the Constitution lodges no legislature can dislodge or diminish" (p. 122).
In Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59, the Court upheld the right of Allegheny County Commissioners to remove at will a member of the Board of Property Assessment, Appeals and Review prior to the expiration of his statutorily fixed term. The Court said (p. 105): "The Constitutional method of removal prescribed by Article VI, section 4, is exclusive, except where the legislature in creating the office expressly or impliedly designates a different method within the scope of Article XII, section 1". (Emphasis supplied.) Houlahen is noteworthy in several respects: (1) relying on Milford and Weiss, Article XII, § 1 is once again held to restrict the application of Article VI, § 4: (2) impliedly, at least, Houlahen recognized as the sole exception to Article VI, § 4, an instance where the legislature in creating the office has both fixed the term and made it determinable by judicial proceedings; (3) even though the statute provided for rotated or staggered terms the Court found therein no legislative intent to circumvent Article VI, § 4. In Ruch v. Wilhelm, etc., et al., 352 Pa. 586, 43 A.2d 894, in upholding the dismissal at will of a state policeman (an employee and not a public officer) Mr. Justice (later Chief Justice) STERN, in a footnote stated: "If the members of the State Police Force were to be considered `officers' within the meaning of Article
In Commonwealth ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751, Reinhardt, claiming to have been duly appointed as a member of the Philadelphia Housing Authority, instituted quo warranto proceedings to oust Randall as a member of that Authority. The statute which created the Authority provided a system of rotated or staggered terms involving initial appointments for terms of varying duration, subsequent appointments for full terms and the filling of irregular vacancies only for an unexpired term. The city controller had appointed Randall for a five year term beginning September 1944 and in June 1946 removed him without cause and appointed Reinhardt his successor. We upheld the right of the city controller to remove at pleasure and, after quoting Article VI, § 4, stated: ". . . The respondent, appointed by the city controller, was an appointed officer and directly within the provision authorizing removal at the pleasure of the appointor, the city controller. When the controller removed the respondent in June, 1946, his right to the office was terminated. His removal created a vacancy in the office to which the city controller was authorized to appoint for the unexpired term. Nothing could be plainer. . . ." (p. 305). In Marshall Impeachment Case, 360 Pa. 304, 309, 310, 62 A.2d 30, the court set forth certain principles defining the manner of removing public officers, whether their offices were created by the Constitution or by the legislature: (1) relying on Bowman, that a constitutional officer, whose office the legislature did not create and cannot abolish, cannot be removed in any other way than in the manner provided in the Constitution; (2) relying on Georges, "if an office has been provided for by the Constitution but a method of removal different from the constitutional
In 1956, Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354, was decided by this Court. On May 4, 1952 Watson was appointed by the then Governor, John S. Fine, as a member of the Pennsylvania Turnpike Commission for a term expiring June 4, 1961 and this appointment was duly confirmed by the Senate. On December 6, 1955 Governor Leader, acting in reliance upon the authority he believed vested in him as the appointing power under Article VI, § 4, removed Watson from office. Watson then instituted an action of mandamus against the Commission. The Court stated: "The sole question involved is whether the Governor had the power under the Constitution and laws of the Commonwealth to remove from office, at his pleasure, a member of the Pennsylvania Turnpike Commission during the fixed term of office for which he was appointed and confirmed" (p. 120). We held that the Governor did not have the power, at pleasure, to remove Watson as a member of the Turnpike Commission. Relying on Bowman, Milford, Weiss and Marshall, the Court said (p. 123): "It is therefore established in this State beyond respectable controversy that, where the legislature creates a public office, it
In Mitchell v. Chester Housing Authority, 389 Pa. 314, 132 A.2d 873, we upheld the right of the Chester Housing Authority, the appointing power, to remove the secretary and executive director of the Housing Authority and in Buell v. Union Township School District, 395 Pa. 567, 150 A.2d 852, we upheld the right of school directors to remove, at their pleasure, the secretary and treasurer of the board.
From a review of all our prior decisions on this subject certain conclusions are inevitable. An appointed constitutional officer (i.e., the incumbent of an office expressly named in the Constitution) is subject to removal at the will of the appointing power in accord with the provisions of Article VI, § 4, with one exception: if, prior to the adoption of the Constitution, there was in effect a method for the removal of such officer,
The real difficulty arises — readily apparent from a study of our prior case law — in determining whether in the statute creating the office the legislature did intend to provide a different method of removal and, in so determining, the wording of the statute must prevail.
Appellee's position is that the statute which created the instant Board evidenced an implied intent on the part of the legislature to provide a different method of removal for Board members and that such intent is to be implied from that provision of the statute which provides that the Board members shall have staggered or rotated terms. Reliance is placed by appellee on Watson, supra, which held that such legislative intent might be implied from a statutory provision for staggered or rotated terms.
The statute which created this Board is silent as to any method of removal of Board members and a legislative intent that Board members were to be subject to removal by a method, other than by Article VI, § 4, must arise, if at all, by implication rather than by expression, of such intent. The statute which created the Turnpike Commission, considered in Watson, and the statute which created this Board are virtually identical in that both provide for staggered or rotated terms and make no specific provision for removal. Unless
Several reasons, reluctantly, compel me to disagree with Watson. In the first place, Houlahen, supra, and Randall, supra, dealt with statutes, creating legislative offices, which contained provisions for rotated or staggered terms; from such statutory provisions — virtually identical with the statutes in Watson and in the instant case — no legislative intent as to the manner of removal was gleaned in Houlahen and Randall. Houlahen and Randall cannot coexist with Watson. In the second place, if a staggered or rotated term provision is indicative of a legislative purpose to condition the terms or tenure of appointees to a legislative office, then certainly a statutory provision fixing a definite term for such appointees or a provision permitting the removal of such appointees for cause reflects such legislative aim with greater strength and force. However, our prior case law had rejected the implication of any such legislative purpose in both instances: Houseman, supra, Lane, supra, Likeley, supra, Madden, supra, Hiltner, supra, Clark, supra, Lindsay, supra, Kraus, supra, Houlahen, supra, and Randall, supra, permitted the removal of nonconstitutional officers whose terms of office were definitely fixed by legislative enactment; Hoyt, supra, Arthur, supra, Hiltner, supra, Lindsay, supra, Kraus, supra, and Beattie, supra, permitted the summary removal of legislative officers even though the statutes creating such offices provided for removal for cause.
Our prior case law reveals a strong judicial reluctance, in the absence of a clear and unequivocally expressed legislative intent, to deprive the appointing power of a legislative officer of the right to remove from such office at will. This judicial reluctance is fully justified. Inherent in the clear and plain language of Article VI, § 4, is the intendment that generally
Watson, supra, expressed the apprehension that, if the right of the Governor to summarily remove a Turnpike Commissioner were recognized, he might remove all the Commissioners at one time and thus hamper the work of this important governmental body. From such apprehension it does not follow that the legislature, by the provision for staggered or rotated terms, intended that the Governor could not at any time remove any Commissioner. The legislature could have provided a method of removal if it intended to thwart any such occurrence as apprehended in Watson. The failure of the legislature to provide for any different method of removal of the Commissioners is eloquently indicative of the legislative purpose that such removal could be
In Houlahen, supra, even though the statute contained a provision for staggered or rotated terms, the late Mr. Justice STEARNE, speaking for this Court, said (p. 104): "The terms of the members of the board are not made determinable, by judicial proceedings, on other contingencies than the mere passage of time. The legislature did not stipulate that a special procedure of removal from office was to be followed. We are therefore unable to hold that [Houlahen] is an exception to the operation of the general rule enunciated in Article VI. Nor are we able to read into the appointing statute any implication that the legislature intended to forbid dismissal without cause. The words of the statute are direct and unambiguous. The letter of it is not to be disregarded, therefore, under a pretext of pursuing its spirit."
My reconsideration of Watson indicates that it should not be followed.
I would reverse the judgment entered in the court below.
As I read the opinion of the Court, I understand the conclusions there reached to be as follows:
(1) The state legislature may limit the appointing power's power to remove at pleasure the incumbent of a legislatively created public office;
(2) Provision for staggered terms of office in the statute creating a public office impliedly reveals a legislative intent to prohibit exercise of a power to remove at pleasure; and
(3) (As a conclusion of the writer of the opinion only) appointed public officers in Pennsylvania exercising quasi-judicial powers may not be removed by the appointing power under any circumstances.
Before proceeding to analyze each of these conclusions, we should review our action in this area so that the full impact of the majority opinion will be recognized. First, although Article VI, § 4 of our state Constitution, promulgated in 1874, has remained intact for eighty-six years and throughout several dozens of cases involving removals, it was not until Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), (also written by Chief Justice CHARLES ALVIN JONES) that this Court held improper an attempted removal of an appointed public officer. This was so throughout the many cases — as summarized in the present dissenting opinion of Justice BENJAMIN R. JONES — that came before our Court on this subject. Second, the Constitutional Debates are perfectly clear that no restriction on the pleasure of the appointing power to remove was intended. Third, the doctrine that the legislature might restrict the pleasure of the appointing power to remove first arose as dicta and was repeated only in very limited terms in cases dealing solely with elected officers. These cases are discussed below. Fourth, we have many times approved removal of public officers appointed to statutorily-created offices
I know of no doctrine of law which states that a "constitution" is written only for the age in which it is promulgated. And so, I assume that the provisions of Article VI, § 4, of our present state Constitution, including the provision for removal of appointed public officers, are as applicable today as they were in 1874. I find nothing in the second sentence of that section limiting its applicability to constitutional officers only, and the debates at the Constitutional Convention of 1873 are absolutely clear that no such limitation was intended. The opinion of the majority ignores these debates, recognizing their lack of support for its position, in appalling fashion. We deal here not with the interpretation of ambiguous statutory language, where we find little help in the Legislative Journal and where, in fact, by our past decisions we are prohibited from referring to the Journal, but with an extensive, fullscale discussion of constitutional language heatedly debated at Constitutional Convention and unambiguously set forth in explicit language — an authority long recognized
The explicit language and original intent of the constitutional provision in question being so clear to the contrary, how have we arrived at the present state of confusion in which we pay homage to a legislative power to restrict removal? In my opinion we have done so through a series of judicial glosses, usually irrelevant to the case at hand and never examined with care. The doctrine was first expressed in Bowman's Case, 225 Pa. 364, 74 Atl. 203 (1909), where the validity of the removal under a statute of an elected justice of the peace (a constitutional officer) was questioned, the statutory removal method being different and easier than the method provided for elected officers in the third sentence of Article VI, § 4. The Bowman Court held the statutory method invalid and, in bad dictum, ventured beyond that precise issue to say that nonconstitutional officers may not be within the constitutional provisions for removal. This dictum, needless to say, is the heart of the present problem; and we might question why Bowman's Court would even bother to make such a statement under the circumstances.
To my mind, it was exactly "the circumstances" of Bowman's Case which influenced the Court to say what it did. The third sentence of Article VI, § 4, provides for removal of elected officers, for cause, by the Governor,
Additionally, this third sentence is a protective provision, guaranteeing
Contrast the position of an appointed officer. Unlike the conflict between a cumbersome constitutional method of removal and statutory attempts to ease the burden where an elected officer is involved, the simple constitutional method for removal of appointed officers is always posed against legislative attempts to make the removal more difficult or impossible.
The contradictions found in the subsequent case-by-case history are well summarized in the dissenting opinion of Justice BENJAMIN R. JONES and can best be explained by recognizing that in no case was a careful reappraisal made. However, one case is so important that it must be examined. Milford Township Supervisors' Removal Case, 291 Pa. 46, 139 Atl. 623 (1927), again involved an attempt to remove elected officials, this time nonconstitutional ones. Under the applicable 1917 statute a petition was brought in the local court of quarter sessions to remove township supervisors allegedly guilty of derelictions of duty. The Milford Court upheld this resort to the statutory proceedings;
Now, Article XII, § 1, is a perfectly innocuous and reasonable provision. It gives to the General Assembly power to provide for the election or appointment of officers whose selection is not provided for in the Constitution. As Buckalew pointed out,
The observation in the Milford case that, where the legislature has provided for selection of an officer for a definite term and has set forth a removal method in the statute, such legislative expression supersedes Article VI, § 4, because otherwise Article XII, § 1, would be transgressed, is untenable. That a statute may provide for the election or appointment of an officer is a matter wholly distinct from removal. Our Constitution itself is replete with provisions for selection of officers — all separate from its removal provisions. These two powers obviously may conflict — as where a person serving a fixed term is removed for misbehavior before the expiration of his term — but this is a conflict required by our governmental structure and principles, not a conflict to be avoided and abhorred.
Other aspects of the Milford case are equally puzzling. The chief precedents relied upon to sustain the Court's position in that case were Commonwealth ex rel. Braughler v. Weir, 165 Pa. 284, 30 Atl. 835 (1895),
The Milford Court's treatment of the Arthur case is even more disquieting. Arthur is cited as authority for the proposition that the legislature may limit the removal power under the second sentence of Article VI, § 4. In fact, the Arthur case can be cited for only two principles, both of which lead to a conclusion completely contrary to its use in the Milford opinion. First, Arthur recognized the power of the legislature to regulate dismissals of "employees" who properly qualified under statutory civil service provisions. Second, Arthur held that the legislature could not limit the appointor's power to remove persons appointed by him who qualified as "officers" under the Constitution by including those persons in the civil services. The actual result in the Arthur case was a holding that a bureau chief, an "officer," could be dismissed at the pleasure of the appointing power notwithstanding the statute in question and that insofar as the statute attempted to restrict his removal, it was unconstitutional. These conclusions, clearly, are exactly the opposite of the expression appearing in Milford.
The final and crowning mystery of the Milford case appears in the Court's concluding language: ". . . although article VI, Section 4, is not limited to what are frequently termed constitutional officers, it is not applicable where the legislature, having the right to fix the length of a term of office, has made it determinable, by judicial proceedings, on other contingencies than the mere passage of time. . . ." 291 Pa. 46, 52, 139 Atl. 623, 625. Considering that we are now concerned with legislative limitations upon removal by resort to fixed terms, staggered terms, cause provisions, etc., we may well wonder how any court could arrive at the present result by relying upon the Milford case. Even Milford, in ceding power to the legislature to restrict removals, did so only in the above-quoted terms: where the legislature provides a method of removal which requires a judicial proceeding. To understand this very restricted legislative power, we need go back only a few sentences in the opinion where the Court
Thus, the Milford case concludes with principles not even remotely justifying the present use made of that case, a use which has led to the current confusion without any reappraisal of Article VI, § 4. My own view is that we should and must restore to that section its original meaning rather than create the confusion that is occasioned by the majority opinion.
The created confusion is aggravated by the majority's attempt to seek refuge in the Milk Control Law to sustain the view that the legislature may limit the power to remove an appointee. First, the fact that the legislature, in that law, actually has exercised such a power simply begs the question since the issue before us is whether it enjoys the constitutional right to exercise the power. Second, the majority again either overlooks or ignores the established case law which has given the Milk Control Commission the same status as the Public Utility Commission; that is, both are legislative agents subject solely to the will of the legislature. In fact, the legislature is the appointing power as we pointed out in Commonwealth ex rel. Woodruff v. Benn, 284 Pa. 421, 131 Atl. 253 (1925), a Public Utility Commission case.
That the Milk Control Commission has similar status has already been clearly determined. In upholding the constitutionality of the Milk Control Act initially, in Rohrer v. Milk Control Board, 322 Pa. 257, 186 Atl. 336 (1936), this Court adopted the dissenting opinion of then President Judge KELLER of the Superior Court who flatly stated that the Milk Control Board was "the legislature's agent" and that he saw
Thus, I conclude that there exists no legislative power to restrict the pleasure of the appointing power to remove an appointed officer. On this conclusion alone I am content to hold that the present appellee's removal was proper. However, the majority's opinion requires some additional comment.
Justice BENJAMIN R. JONES' dissenting opinion treats carefully and extensively the question of legislative intent to restrict removal once we assume its power to do so exists. On this assumption only — with which I, of course, disagree — I am in complete accord with his views and would add only a few words.
First, as is pointed out, the "staggered term" doctrine overrules both Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 (1943), and Commonwealth ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751 (1947). Yet, the majority's opinion makes no mention of these prior decisions, as indeed they were ignored in the Watson opinion. This fact, I find, contributes to my feeling that the majority's opinion is hardly the result of careful thought and reflection.
Second, I find it incredible that we now hold staggered terms to reveal an implied legislative intent to prevent removal when we have held so often previously that explicit legislative language forbidding removal
Third, I have not yet discerned what magic the majority finds in staggered terms as a matter of good administration which imparts such a powerful effect to their use. True, the hope must be that staggered terms will permit a certain continuity in governmental offices; but this hope presupposes that the powers of office will be properly and effectively exercised. I am sufficiently committed to the theory of executive responsibility that I cannot attribute to the use of staggered terms the power to insulate an executive appointee from removal as a matter of good governmental administration any more than I can do so as a matter of constitutional doctrine.
Beyond the issues of legislative power and legislative intent, the writer of the majority opinion has added certain gratuitous observations to his opinion which have the support neither of a majority of this Court nor of existing law. Neither of the parties to this case presented a single word to us — orally or in briefs — which would indicate that either considered the federal cases remotely helpful; yet the writer of the majority opinion presents them to substantiate his otherwise unsupportable opinion. The parties' nonreliance is justified — until now no Pennsylvania case has ever referred to the federal cases.
My shock at this approach is epitomized best by reference to a single sentence in the opinion, "Nor is it of presently material significance that the Constitution of the United States, under which the cases above cited arose, does not contain a provision, such as Article VI, Section 4, of the Pennsylvania Constitution." To this, I ask hopelessly, "why isn't it?" It is precisely because
The opinion goes on to imbue the Pennsylvania Labor Relations Board with unusual qualities: Unquestionably, part of its functioning is quasi-judicial in nature just as part is purely executive.
Finally, we have in the past upheld the removal of quasi-judicial officers without even questioning the removals because of their quasi-judicial status. Commonwealth ex rel. Houlahen v. Flynn, supra, involved removal of a member of a Board of Property Assessment Appeals and Reviews; and both Commonwealth ex rel. Kelley v. Clark, 327 Pa. 181, 193 Atl. 634 (1937) and Suermann v. Hadley, 327 Pa. 190, 193 Atl. 645 (1937), support the same conclusion. The constitutional protection from removal given to judges of courts of record involves far different considerations, for such judges are not appointed other than to fill a vacancy
In summation, therefore, I find myself at odds with the opinion of the Court in every respect, including the personal observations of its writer which are not adhered to by a majority of the Court. Its failure to deal with the cogent history of Article VI, § 4, its studied avoidance of existing precedent
For the reasons stated, I would reverse the order of the court below and enter judgment for appellants.