Commonwealth ex rel. Specter v. Vignola

Dissenting Opinion by

Mr. Justice Eagen :

The nub of the majority opinion is that Section 16 (i) of the Schedule to the Judiciary Article provides specifically for the (1) appointment, (2) tenure, and (3) removal of the President Judge of the Traffic Court and therefore these specific provisions of Section 16 (i) must prevail over the general removal power (Article VI, Section 7) because of the command of Article VI, Section l.1

*8Close scrutiny of the instant provisions together with our decisional law in this area amply demonstrates that such a holding does not withstand analysis. Hence, I share the view of Mr. Justice Roberts that the words . . for a term of five years or at the pleasure of the Governor” define a term of service and that only. I cannot find any implicit hint of purpose concerning the Governor’s removal power in Section 16 (i), much less an explicit statement circumscribing it. For this reason I would hold that the general removal power continues to operate in the same field of force as Section 16(i) and that it must of necessity follow that the present Governor had the constitutional right to remove Judge Walsh from his administrative position as President Judge.

At the outset it is curious to note that the phrase “at-the pleasure” was used in both constitutional provisions critical to this dispute.2 If it could be demonstrated that such phrase means the same thing in both provisions the argument of the appellee and of the majority here, which asserts that Section 16 (i) deals with the question of removal rendering Article VI, Section 7 superfluous, would be irresistible.

However, the case law does not warrant or justify such a view in my estimation. In Commonwealth ex rel. v. Hiltner, 307 Pa. 343, 161 A. 323 (1932), this Court construed the immediate predecessor of Article VI, Section 7 (then Article VI, Section 4, since renumbered without substantial change and with no change in the *9phrase now under discussion) to provide for removal without cause.3 Accord, Buell v. Union Twp. School Dist., 395 Pa. 567, 150 A. 2d 852 (1959).

If the phrase “at the pleasure” meant without cause in Article VI, Section 4 as this Court said it did [and if it continues to hold such meaning in renumbered Article VI, Section 7] then I submit that it now tortures the English language to fit that same meaning into the context of Section 16 (i). Patently, the identical phrase in the two different sections was intended and must be construed to have two different meanings.

Hence, we come full circle to Mr. Justice Robert’s wise conclusion that the disjunctive phrase “or at the pleasure” is a temporal term relating to the length of the term of office as president judge and does not refer to the removal power even indirectly. Thus it follows that Article VI, Section 7 would still be operative and would serve as the source of power for the Governor’s action in removing Judge Walsh from his post as President Judge.

Amy other interpretation would depart from the guidelines reiterated by Mr. Chief Justice Bell in the recent decision of Rogers v. Tucker, 443 Pa. 509, 279 A. 2d 9 (1971), where he cited with approval Commonwealth v. Russo, 388 Pa. 462, 471, 131 A. 2d 83, 88 (1957). “We have no right to disregard or [unintentionally] erode or distort any provision of the Constitution, especially where, as here, its plain and simple language makes its meaning unmistakably clear. . . .”

*10Additionally, as was aptly pointed out, where those who amended the Constitution intended that the ordinary power of removal should not apply, they plainly and distinctly said so. For example, see Section 18(b) of Article V of the Constitution, adopted at the same time as Section 16 (i) of the Schedule to Article V, which provides with respect to members of the Judicial Inquiry and Review Board: “The members shall serve for terms of four years, provided that a member, rather than his successor, shall continue to participate in any hearing in progress at the end of his term. A vacancy on the board shall be filled by the respective appointing authority for the balance of the term. The respective appointing authority may remove a member only for cause. No member shall serve more than four consecutive years; he may be reappointed after a lapse of one year. Annually the members of the board shall elect a chairman. The board shall act only with the concurrence of a majority of its members.” [Emphasis supplied.]

I dissent!

Article VI, 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.”

Schedule Article V, 16(i) provides in pertinent part: “The Governor shaU appoint one of the judges of the traffic court as president judge for a term of five years or at the pleasure of the Governor.” [Emphasis supplied.]

Article VI, §7 provides in pertinent part: “Appointed civil officers, other than the judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed.” [Emphasis supplied.]

In Hiltner, the treasurer of the Borough of Norristown had been appointed by the town council pursuant to the town’s charter and under the Act of 1831 which provided for an annual term and removal only for cause. In referring to Article VI, §4, the court said at page 347: “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.