OPINION BY MR. JUSTICE COHEN, March 16, 1965:
In Commonwealth ex rel. Hanson v. Reitz, 403 Pa. 434, 170 A.2d 111 (1961), Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 (1961), and Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), we held that where the legislature creates a public office and provides that the holders of that office shall be appointed for fixed terms with staggered expiration dates, the presence of staggered terms indicates a legislative intent that the holders of the office are not removable by the appointor at his pleasure.
Here the lower court relied for its decision on Reitz, Bowers and Watson. It did so improperly since the officer involved in this litigation was appointed to the Board for the Assessment and Revision of Taxes for a fixed term expiring simultaneously with the terms of the other appointees to the Board and thus does not come within the staggered term rule of the above cases. The Board of Commissioners for a Third Class County is empowered by Article VI, § 4 of the Pennsylvania Constitution to dismiss a member of the Board for the Assessment and Revision of Taxes at its pleasure and neither the staggered term doctrine nor Article XII, § 1 of our Constitution insulates him from such dismissal.
CONCURRING OPINION BY MR. JUSTICE JONES:
Believing that the Board of Commissioners of Erie County had the power to dismiss at pleasure Schluraff, an appointed member of the Board for the Assessment and Revision of Taxes of Erie County, I concur in the result reached in the majority opinion.
However, I must disassociate myself from the reasoning in the majority opinion which seeks to differentiate between the impact of a staggered or rotated term provision in a statute and a definite or fixed term provision in a statute as indicative of a legislative purpose to condition the terms or tenure of appointees to a legislatively created office. Despite our previous rulings to the contrary in Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 and Commonwealth ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751, our Court held in Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354, Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 and Commonwealth ex rel. Hanson v. Reitz, 403 Pa. 434, 170 A.2d 111: "that where the legislature creates a public office and provides that the holders of that office shall be appointed for fixed terms with staggered expiration dates, the presence of staggered terms indicates a legislative intent that the holders of the office are not removable by the appointor at his pleasure."
In Bowers and Reitz I dissented on the ground that such staggered term provisions do not indicate any such legislative intent and to that view I still adhere. In Bowers, in dissenting, I stated (576): "if a staggered or rotated term provision is indicative of a legislative
I believe that under our Constitution and our case law, prior to Watson, Bowers and Reitz, it is clear beyond any question that neither a staggered or rotated term statutory provision nor a fixed or definite term statutory provision reflects any legislative intent contraindicating the right of the appointing power to remove the appointed officer at pleasure. In the following cases, even though the statute creating the offices set fixed terms for the appointed officers, we held that such statutory provisions setting fixed terms did not reflect any legislative aim or purpose to protect such appointed officers from dismissal at the pleasure of the appointing power: Weiss v. Ziegler, 327 Pa. 100, 193 A. 642; Commonwealth ex rel. Schofield v. Lindsay, 330 Pa. 120, 198 A. 635; Kraus v. Philadelphia, 337 Pa. 30, 10 A.2d 393.
The majority errs in attempting to distinguish between the effect of a statutory provision creating a staggered or rotated term for an appointed officer and a statutory provision providing for a fixed term for such appointed officer. In my opinion, in neither instance has the legislature by its definition of the terms of the appointed officers intended to protect such appointed officers from removal at the pleasure of the appointing power.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
I disagree with the conclusion of the majority that a member of the board of assessment, duly appointed for a full four year term, may be dismissed without cause by the board of county commissioners at any
Even the most elementary student of civics or political science is fully aware of the evils of a politically motivated, non-merit system of governmental employment. The extravagant wastefulness, inefficiency and complete undesirability of permitting public governmental positions to be utilized as part of a system of rewards and discipline based on non-merit considerations has long been recognized as a practical and effective deterrent to good governmental administration. Fortunately, in many important areas of government the use of public positions for political purposes has been completely discredited and rejected as an acceptable or permitted practice in modern administration of public affairs.
I believe the statute involved in this case manifests such a rejection in regard to the positions with which it deals. It is, therefore, disturbing to witness the majority's haste to give its approval to the restoration of unsound and repudiated spoils practice. To achieve this unsound and undesirable result, the majority deliberately ignores clear statutory language and holds that a term of four years does not mean a term of four years but a tenure terminable at the will of the appointing power.
The Board of County Commissioners on July 20, 1962, appointed three members to the Board for the Assessment and Revision of Taxes "to serve for terms
The majority accords no meaning whatever to the statutory language directing appointees "to serve for terms of four years each." It seems indeed almost impossible to read the statute as having precisely the same meaning as though the Legislature had not specified four year terms.
The court below, in a comprehensive and persuasive opinion based on the authority of Reitz,
With the appointment of members to the board of assessment for the legislatively specified four year term, the power of the county commissioners over the board members for purposes of this controversy ended.
To allow the county commissioners the unlimited removal power which they here exercised requires that the language of the Legislature be ignored and that the Legislature be regarded as impotent to effectuate the realities and the prevailing principles of good governmental service. The whole trend of modern governmental structure has been to insure, particularly in quasi-judicial offices, independence and freedom from homage to the appointing power.
I dissent also from the cavalier fashion in which the majority attempts to dismiss not only the sound reasoning of the court below, but also the binding effect of the controlling decisions of Reitz, Bowers and Watson. The majority assumes the correctness of its conclusion by merely asserting that the four year term here "does not come within the staggered term rule of" Reitz, Bowers and Watson. What the majority actually does is to squarely overrule these cases without saying so.
To attach to a staggered four year term a tenure of office for four years, but to deny such tenure to a fixed four year term, is to engage in a futile search for legislative significance which obviously does not exist. Nor does the staggered term rule in any way justify the conclusion that a fixed four year term does not mean a definite term of four years but means rather an uncertain and indefinite term whose duration is determined solely by the fancy of the appointing power.
I fail to see how there is any difference in the actual period of time between the beginning and end of a four year term, staggered or otherwise. Both involve
I am in full agreement with the logic and force of the observation made by Mr. Justice JONES in his dissenting opinion in Bowers which is especially pertinent here: "[I]f 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." 402 Pa. at 576, 167 A. 2d at 496.
I cannot conceive that the Legislature intended its direction "to serve for terms of four years each" to be meaningless and wasted verbiage. Since the direction for a four year term is in clear language, its plain meaning should be given effect.
I dissent and would affirm the court below.
Mr. Chief Justice BELL and Mr. Justice O'BRIEN join in this dissenting opinion.
Chief Justice JONES quotes from Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874 (1935): "[I]t is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will."