I do not like to see any official power exercised arbitrarily, as the Commissioner exercised his power when he summarily dismissed Major William J. Ruch from the State Police Force, without specifying any charges against him or affording him an opportunity to answer charges. Such "absolutism" is not the "American way". Policemen and firemen in our cities are protected by law against summary removal without cause, and in the nation neither the President of the United States nor the Chief of Staff of the Army nor anyone else can either in peace or war summarily remove officers from the service or reduce them in rank. In the Army a superior officer *Page 594 can summarily remove a subordinate officer from hiscommand, but he cannot summarily deprive him of his rank or of the emoluments thereof.1
But the question before us is not whether we approve or disapprove of Commissioner Adams' arbitrary action in this matter. The question is: Did he have the power so to act? It is clear to me that he did. That the power to remove an officer is incidental to the power to appoint him, is a principle as long established and as well known as is the principle of the "presumption of innocence" in criminal cases. This power to remove does attach to a "legislatively created office" as well as to any other office, unless the Constitution or the Legislature provides to the contrary. Practically all public offices, except those created by the Constitution, are legislatively created, and we have repeatedly held (applying both the Common Law rule and Article 6, Sec. 4 of the State Constitution) that "appointed officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed." See Commonwealth ex rel.v. Likeley, 267 Pa. 310, 110 A. 167.2
There is no doubt about the power of the Legislature to enact laws to protect members of the State Police Force from summary removal, but unfortunately for this appellant, the Legislature did not do so. I think that when the Legislature declared in the statute invoked by this appellant that the Commissioner "shall make rules *Page 595 and regulations, subject to the approval of the Governor, prescribing qualifications prerequisite to, or retention of, membership in the force; for the enlistment, training, discipline, and conduct of the members of the force, for the selection and promotion of such members on the basis of merit; for the filing and hearing of charges against such members, and such other rules and regulations as are deemed necessary for the control and regulation of the Motor Police Force" it had a nebulous intention to protect State Police officers from summary removal, but it did not carry out its intention. When the Legislature decreed that the Commissioner should make rules and regulations "for the filing and hearing of charges against such members", it seems to have had in contemplation the American idea of "due process of law", and it apparently intended that when any charges were made against a member of the State Police, by anybody, either by superior officers or by subordinates, or by civilians, the accused should be apprised of the charges and have an ample opportunity to meet them. But the Legislature did not carry out its "apparent intention", and for this court to supply this legislative deficiency would be to indulge in judicial legislation and would be, therefore, an usurpation of the functions of the Legislature.
When we contrast the statutory provisions just quoted with the Civil Service Acts which protect city policemen from summary removal, the inadequacy of the 1937 Act appellant invokes for his protection becomes too obvious to be judicially ignored. For example, the Act of March 7, 1901, P. L. 20, which applies to cities of the second class, provides in Article III, Sec. 1 at page 24: "No policeman or fireman appointed under this act shall be dismissed without his written consent, except by the decision of a court either of trial or inquiry, duly determined and certified in writing . . ., which court shall be composed of persons belonging to the police or fire force, equal or superior in official position therein to the accused. Such decision shall only be determined by trial *Page 596 of charges, with plain specifications made by or lodged with the director of the department of public safety, of which trial the accused shall have due notice, and at which he shall have the right to be present in person." There are many other acts which protect policemen and firemen in all our cities, from summary removal.
Pursuant to the power given to the Commissioner by the Administrative Code of 1929, as amended in 1937, that official promulgated General Order No. 20. Section 4 of that General Order declares that: "No member of the Pennsylvania Motor Police Force shall be discharged, reduced in rank, or lose any pay except by order of the Commissioner, or pursuant to sentence of court martial, approved by the Commissioner." The section just quoted clearly gives the Commissioner his choiceof two methods in removing a State Police officer. He can summarily order his dismissal or he can subject him to a court martial, the sentence of which court martial is subject to the Commissioner's approval. In the instant case the Commissioner chose the former method. In doing so he exercised a power which he unquestionably had. Whether such arbitrary power is one which should be possessed by a Commissioner of the State Police is a question for the Legislature and not for the courts to decide.
The enlistments in the State Police Force are for only two years, and the State is under no obligation to renew them. Whether or not longer enlistments, with protection against summary removal during the period of enlistment, would increase the efficiency of the State Police personnel is a matter exclusively for the determination of the Legislature. That question is not a judicial one and is certainly not before us.
Terming the two year enlistment of officers and others in the State Police a "contract", has no bearing on the determination of this case. At the most, it is a contract which under the law is terminable at will by the state's representative, the Commissioner of State Police. It is *Page 597 so terminable because the law is that the appointing power may remove the appointee at will, unless the Constitution or the Legislature have decreed otherwise. There is no such decree otherwise.
It is elementary that all contracts are subordinate to the applicable law, or, to express it differently, the law of the land at a time a contract is made is a part of the contract and every other part of the contract must conform to that law. It may be unfair that Article 6 of General Order No. 20 provides that "resignation of the members of the Force will be accepted only for cause", while Article 6 of the same General Order recognizes the right of the Commissioner to discharge "by order", but since the Commissioner possessed the legislative authority to promulgate, with the Governor's approval, General Order No. 20, the unfairness of any portion of that General Order does not affect its validity.
The decision In re Grimley, Petitioner, 137 U.S. 147, is not at variance with the majority view in the instant case. It was decided in that case that an enlisted soldier cannot avoid a charge of desertion by showing that at the time he enlisted, he had passed the age at which the law allows enlisting officers to enlist recruits. It did not lay down any law that since an enlisted soldier is held to service for the period of his enlistment, he cannot be discharged summarily from service in the absence of an enactment protecting his tenure of enlistment.
In the case before us no statute protected the appellant's two year tenure of service and therefore he was lawfully subject to the summary removal of whose moral injustice he complains.
1 The Articles of War may be found in Title 10 U.S.C.A., Article 108 applying to enlisted men and 118 to officers.
2 In Commonwealth v. Black, 201 Pa. 433, 50 A. 1008, we held that "a policeman is a subordinate ministerial agent or employee" and that, therefore, he can, despite Article 6, Sec. 4, be legislatively protected against summary removal by the power which appointed him. This ruling made it possible for the Legislature to protect policemen and firemen, by Civil Service Acts and other acts against summary removal, without impinging on the constitutional provision above cited.