Watson v. Pennsylvania Turnpike Commission

Opinion By

Mr. Justice Jones,

This matter is before us on plaintiff’s complaint, defendants’ separate answers and a stipulation of facts. The action is in mandamus and was instituted in the Court of Common Pleas of Dauphin County. It was pending there when, because of the evident public importance of the issue involved and the desirability of a conclusive decision thereon at the earliest possible date, the Attorney General, representing all of the defendants, requested us by petition to certiorari the record here for our original and final disposition. Counsel for the plaintiff having joined in the Attorney General’s request, a special certiorari was accordingly issued. The case has since been ably argued before us by respective counsel. The material facts which gave rise to the question of law involved are undisputed and may be briefly stated.

The plaintiff, David E. Watson, was appointed on March 4, 1952, by the then Governor of the Commonwealth as a member of the Pennsylvania Turnpike Commission for the term expiring on June 4, 1961. The appointment was duly confirmed by the Senate. The appointee was sworn in as a member of the Commission and thereupon assumed the discharge of the duties of his office. On or about December 7, 1955, the other members of the Turnpike Commission (being the individual defendants herein) excluded the plaintiff from all meetings of the Commission and divested him of all authority to perform any official acts for or on behalf of the Commission as a member thereof. They averred that they had so acted because, on December 6, 1955, the Governor, acting in reliance on the authority vested in him, as the appointing power, by Article VI, Section 4, of the Constitution of Pennsylvania and, in the absence of any other provision in the law relating to the removal of a Commissioner, had removed the plaintiff from office and had given written notice thereof to the plaintiff who had acknowledged in writing his receipt of the notice. On December 20, 1955, the plaintiff instituted the present action in an effort to obtain a judgment against the defendants requiring them to accord to him the duties, rights, privileges and emoluments of a commissioner for the term for which he was appointed and also a money judgment against the Turnpike Commission for the amount of his unpaid salary from December 1, 1955.

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.

Article VI, Section 4, of the State Constitution provides, inter alia, 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.” Article VI, in one or another of its provisions, has been before this court a number of times.

In Bowman’s Case, 225 Pa. 364, 74 A. 203 (1909), which was concerned with a legislatively prescribed method of removing, in a certain contingency, justices of the peace — an elective office which, as this court there noted, the legislature did not create and could not abolish — it was -held that the legislatively prescribed method of removal was unconstitutional, being in conflict with that portion of Article VI, Section 4, which provides for the removal of elected officers. Although an incumbent of a legislatively created office was not involved in Bowman’s Case, supra, the plain implication of this court’s opinion is that the constitutional provisions for the removal of elected or appointed officers are exclusive and prohibitory of any other method, which the legislature may deem better, only where the office is a constitutional one. The opinion concluded with the words that “though others filling purely legislative offices may be without the constitutional provision as to removal, [a constitutional officer] is clearly within it.”

However, a few years later, in Commonwealth v. Hoyt, 254 Pa. 45, 98 A. 782 (1916), where the removal of the incumbent of a legislatively created office (viz., county inspector of weights and measures) was involved, this court affirmed per curiam a ruling of the court below that the legislature was without power to prescribe a method for the removal of such an officer other than the method provided in Article VI, Section 4, of the Constitution. The fallacy inherent in the lower court’s reasoning in the Iloyt case is obvious. While the opinion discussed at considerable length several constitutional provisions, it failed even to mention, let alone consider, Article XII, Section 1, of the Constitution which provides that “AH officers, whose selection is not provided for in this Constitution, shall be elected or appointed os may be directed by law . . .” (Emphasis supplied). As was to be expected, the holding in the Hoyt case was impliedly but nonetheless effectively overruled a decade later.

Thus, in 1927, in Milford Township Supervisors’ Removal, 291 Pa. 46, 49-50, 139 A. 623, after observing that “Township supervisors not being ‘provided for in this Constitution’ (of 1873), article XII, section 1, says they ‘shall be elected or appointed as may be directed by law’ ”, this court declared that “A necessary implication from this provision ... is that [the legislature] had the right to provide that their election or appointment should be for a definite or an indefinite term, absolutely or conditionally, and this might be set forth in a single section, or in two or more sections, which, of course, would be construed together. ... It follows, if a fair construction of the statute, providing for their election or appointment, results in the conclusion that, under it, they were only intended to be conditionally elected for a specified term, that effect must be given to the legislative intent, notwithstanding the provisions of curtióle VI, section 4, for not otherwise can they ‘be elected or appointed, as may be directed by law’ ” (Emphasis supplied).

Then followed Weiss v. Ziegler, 327 Pa. 100, 104, 193 A. 642 (1937), where the foregoing statement from Milford Township Supervisors’ Removal was quoted with approval, Mr. Justice Linn adding “But that provision [referring to Article VI, Section 4] must be read in connection with other provisions in the Constitution. Article XII, section 1, provides ‘All officers, whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law. . . .’ The authority so conferred to provide for the election or appointment of other officers necessarily involves and implies legislative power to annex conditions of tenure. 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.” No extended reasoning is required to make plain that legislatively annexed conditions of tenure may determine the method of removal of an appointee of the related legislatively created office.

In like connection, our late Brother Steabnk, in Commonwealth v. Beattie, 364 Pa. 572, 574-575, 73 A. 2d 664, quoted with approval from both Weiss v. Ziegler and Milford Township Supervisors’ Removal, supra. And, in Marshall Impeachment Case, 360 Pa. 304, 309-310, 62 A. 2d 30, Chief Justice Maxey said with reference to the Milford Township case, “we held that if an office is the creature of the Legislature, the latter can establish a method for the incumbent’s removal.” For a well-considered editorial note, entitled Removal of Public Officers in Pennsylvania: The Constitutional Provisions, see 99 Univ. of Pa. Law Review 829, 837-840.

It is therefore 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. Of course, where the legislature, in creating a public office, imposes no terms or limitations on the duration of an incumbent’s tenure or the mode of his removal, the method of removal preseribd by Article YI, Section 4, of the Constitution applies: See Marshall Impeachment Case, supra, and Commonwealth v. Beattie, supra.

The question,, then, as to whether the tenure or removal of an appointee of a legislatively created office has been so conditioned by the legislature as to exempt the incumbent from removal by the Governor at his pleasure, under his constitutional power, is one of intent to be gleaned from the statute creating or regulating the office.

The Turnpike Commissioners are appointed by the Governor, by and with the advice and consent of two-thirds of the members of the Senate, pursuant to the Act of May 21, 1937, P.L. 774 (No. 211), 36 PS §652a et seq. But, the Act expressly and definitely annexed conditions to the tenure of the four appointed members of the Commission (the Secretary of Highways is ex officio the fifth member) with the result that they are not removable at the pleasure of the Governor under the power conferred on him by Article VI, Section 4, of the Constitution. Section 4 of the Pennsylvania Turnpike Act, cit. supra, provides, in presently material connection, that “The commission shall consist of five members, and the 'Secretary of Highways shall be a member ex officio. The four remaining members shall be appointed by the Governor by and with the advice and consent of two-thirds of the members of the Senate. . . . The appointed members of the commission shall continue in office for terms of four, six, eight and ten years, respectively, from the dates of their appointment and until their respective successors shall be duly appointed and qualified, the term of each appointd member to be designated by the Governor at the time of his appointment; but their successors shall each be appointed for a term of ten years, except that any person appointed to fill a vacancy shall serve only for the unexpired term, and any member of the commission shall be eligible for reappointment.”

The purpose of the foregoing provision as to the terms of office of the Commissioners (i.e., those first to be appointed and thereafter their successors) is patent. It was designed so that, by the prescribed rotation, the terms of three of the four appointed members of the Commission would always be current. The Act expressly provides that three members of the Commission shall constitute a quorum who, for all purposes, shall act unanimously. Were the Commissioners to be held removable at the pleasure of the Governor, the carefully expressed scheme of term rotation would be effectually nullified. If it be countered that the Governor, in appointing to a vacancy created by his dismissal of a Commissioner, would respect the spirit of the Act and appoint a successor for the balanee of the unexpired term, of the dismissed Commissioner, the answer is that the power so attributed to the Governor would still violate the plain intendment of the Act. He could render all of the offices vacant at one time which, obviously, the Act was specifically designed to make impossible. To urge that such a situation would never be provoked is irrelevant to the question of the power of the Governor in the premises as affected by the Act creating the office and prescribing the tenure therefor. It follows that the attempted removal of the plaintiff from his office was without warrant of law and that he must, therefore, be restored to the position.

So much disposes of the instant controversy, and we would need say nothing more were it not for the fact that an erroneous idea appears to have grown up to the effect that, in the case of a legislatively created office which has, inter alia, some legislative function to perforin, the legislature is the appointive power in all such instances even though the Act creating the office provides for appointment thereto by the Governor. Indeed, this very case was argued to us mainly on whether the Turnpike Commission exercises legislative powers, the plaintiff contending that it did and the Attorney General arguing that its powers are largely executive. The fact is that the Commission exercises some of each, and it would be difficult, if not impossible, to appraise with any reasonable degree of accuracy which function is the more extensively exercised. As stated in Suermann v. Hadley, 327 Pa. 190, 201, 193 A. 645, “it is difficult to draw the line between legislative, executive and judicial functions . . . .” For us to pass over the mistaken conception in silence, after it has been so earnestly pressed upon us, could lead only to future speculative uncertainty and confusion.

The. error has apparently resulted from a misinterpretation of the rationale of Commonwealth ex rel. Attorney General v. Benn, 284 Pa. 421, 131 A. 253. In Suermann v. Hadley, supra, we made a direct effort to dispel the misconception when we said, — “But, appellant proceeds upon a mistaken theory as to the Benn case, and to carry that theory to its logical conclusion would imperil the Governor’s power to remove executive appointees by broadening the definition of legislative function to include practically all governmental agencies created by the legislature.”

In the Benn case, which arose under the Public Service Company Law of July 26, 1913, P. L. 1374, it was held that the Governor lacked power to remove from office, at his pleasure, a Public Service Commissioner who had been appointed by the Governor “by and with the advice and consent of the Senate.” The Act expressly provided, with respect to the removal of a Commissioner, that “The Governor, by and with the consent of the Senate, may remove any Commissioner or any of the counsel to the commission, for inefficiency, neglect of duty, or misconduct in office . . . .” The Attorney General argued that this provision was but another method of removal in addition to the Governor’s right to remove a Commissioner, at his pleasure, under the power vested in him by Article VI, Section i, of the Constitution. However, the decision in the Benn case was that the Commissioners were veritably the deputies of the legislature for the more efficient exercise of the purely legislative function of regulating public service companies; that the legislature was the real appointive power, the Governor merely acting as a convenient agent of the legislature in nominating them; and that, in the Act of 1913, supra, the legislature evidenced an intention to retain control over the removal of the Commissioners when it provided that they could be removed by the Governor by and with the consent of the Senate for cause. It seems plain enough that, had the legislature intended that the Governor, as the designated appointor of the Commissioners, could also remove them at Ms pleasure by virtue of Article VI, Section 4, of the Constitution, the provision prescribing the method of their removal for cause would in practical effect be a superfluity.

The Public Service Commission is a legislative instrumentality performing principally and predominantly the legislature’s exclusive function of exercising the sovereign police power in the regulation of public service companies with respect to their rates and services : cf. Suermann v. Hadley, supra. And, day in and day out, the Commission exercises such power. Thus, the Benn case was truly sui generis because of the Public Service Commission’s special relationship to the legislature as its continuing and active agent. The legislature was not, therefore, to be deemed to have abdicated to the Governor control of the removal of its deputies from their exercise of the State’s police power,, in relevant regard, which only the legislature or its authoritatively designated agent, the Public Service Commission, was competent to exercise. We note, in passing, that the Public Service Company Láw of 1913 likewise provided for a rotation in the terms of office of the Commissioners which was not referred to in the opinion in the Berm case, being unnecessary to the decision.

Nor does Commonwealth ex rel. Smith v. Clark, 331 Pa. 405, 200 A. 41, cited in the plaintiff’s brief, support the proposition that the Governor lacks power to remove a gubernatorial appointee to a commission, legislatively created, merely because it has duties to perform some of which are legislative in character. The members of the Delaware River Joint Commission in the Clark case, who were held not to be removable at the pleasure of the Governor under Article VI, Section 4, were so positioned because they had been expressly appointed by the statute which superseded prior legislation under which they had first been appointed by the Governor. Stated otherwise, the legislature actually made the appointments and, of course, the Governor was powerless to remove such appointees at his pleasure. The mention in the opinion for this court in the Clark case that “The Commission has duties that are legislative in character” was merely an incidental refutation of the appellee’s assertion that the Commission’s duties were exclusively executive. The appellee’s argument was that the legislature could not create a commission with such duties “and then . . . name the individual members thereof.” All that the reference to the Commission’s legislative functions was intended to show was that the appellee’s contention was based on a controverted distinction which did not control the decision.

The record herein will be remanded to the court below for the entry there of the judgment which we are about to pronóuácé. It is- unlikely that a' formal' writ of execution will need' bé issued. ■'

The defendant members of the Pennsylvania Turh: pike Commission are ordered and directed to accord forthwith to David E. Watson, the plaintiff, the duties', rights, privileges and emoluments of a member of the Commission for the term expiring June 4,1961, and the Commission is ordered and directed to pay to the plaintiff so much of his salary from December 1, 1955, as remains unpaid at the time of his restoration to office; the costs of this proceeding to be borne by the Commission.