Commonwealth ex rel. Kelley v. Clark

• Decision Date: 07 July 1937
• Docket Number: 256
• Citation: 193 A. 634,327 Pa. 181
• Parties: Commonwealth ex rel. Kelley v. Clark et al., Appellants
• Court: Pennsylvania Supreme Court

193 A. 634

327 Pa. 181

Commonwealth ex rel. Kelley v. Clark et al., Appellants

No. 256

Supreme Court of Pennsylvania

July 7, 1937

Argued June 8, 1937

Appeal, No. 256, Jan. T., 1937, from judgment of C.P. No. 3 Phila. Co., March T., 1937, No. 3425, in case of Commonwealth ex rel. Charles F. Kelley, District Attorney for County of Philadelphia, v. Jas. P. Clark et al. Judgment of ouster affirmed.

Quo warranto proceeding.

The opinion of the Supreme Court states the facts.

Demurrer by relator to respondent's answer sustained and judgment of ouster against respondents entered, opinion by DAVIS, P.J Respondents appealed.

Error assigned, among others, was judgment.

The judgment of ouster is affirmed.

Joseph Sharfsin, City Solicitor, with him Abraham Wernick and Ernest Lowengrund, Assistant City Solicitors, for appellants.

Wm. A. Schnader, of Schnader & Lewis, with him Gilbert W. Oswald, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE DREW:

Under section 5 of Article XIX of the Act of June 25, 1919, P.L. 581, as amended by the Act of April 13, 1927, P.L. 203, the Civil Service Commission of the City of Philadelphia consisted of three commissioners elected by the city council for a term of four years. By virtue of the authority vested in it by the statute the city council elected three commissioners on January 6, 1936, to serve for the statutory period.

On March 30, 1937, the Governor approved Act No. 41 of the General Assembly of 1937, P.L. 158. ^[1]

By April 5, 1937, the mayor and the city controller, in pursuance of the act, had each appointed two commissioners and the latter in turn had selected a fifth commissioner. The present proceeding in quo warranto was then instituted to determine the legal rights of the new commissioners to their offices. On May 18, 1937, the court below filed an opinion in which it declared the act to be unconstitutional and void; judgment of ouster was entered, and an injunction was issued restraining defendants from interfering with the members of the commission as previously constituted. An appeal was immediately taken to this court, and on the following day, May 19, 1937, we refused appellants' application for a supersedeas. On the same day the Act of May 19, 1937, P.L. 722, was approved by the Governor. ^[2]

By agreement of counsel, and with our approval, the record was amended in this court to include within the scope of the appeal the question of the constitutionality of the later act. Being but an amendment, that act must be treated as if written into the Act of March 30, 1937, supra, for the purpose of determining the effect of both: Com. v. Barrett, 304 Pa. 13; cf. West v. Lysle, 302 Pa. 147.

The legislation under review is attacked as violative of Article III, section 13, of the Constitution, providing that "No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment." It is further urged to be in conflict with Article VI, section 4, providing that ". . . Appointed officers . . . may be removed at the pleasure of the power by which they shall have been appointed. . . ." The Act of March 30, 1937, supra, is also said to be unconstitutional because of a defective title, in violation of Article III, section 3: "No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title."

The court below had before it only the Act of March 30, 1937, supra, which it found to be violative of Article III, section 3, in that it failed "to give notice that the Act is intended to remove the duly elected civil service commissioners in office upon the effective date of the Act." Having concluded that the act was intended to remove the incumbent commissioners, the court was of opinion that it was also unconstitutional under Article VI, section 4, "as the incumbents at the time of the passage of the Act of 1937 were not removed either by the express words of the Act or by the power by which they were appointed," and in conflict with Article III, section 13, "as 'diminishing' the salaries of the said commissioners after their election or appointment."

It is our duty to determine the intention of the legislature in the passage of the Acts of March 30 and May 19, 1937, and, if possible, make it effective. The acts considered together, as they must be, make it plain that the intention was to oust the commissioners elected by the city council and put in their places commissioners appointed by the mayor, the controller, and their appointees. There was no intention to abolish the office; language in the Act of May 19, 1937, supra, that it is abolished is mere subterfuge. The intention to the contrary is too obvious. The best that can be said is that the legislature attempted to abolish and continue the office at one and the same time, an impossible thing. Such a device cannot succeed, and while the question is a new one for this court, various other courts have so declared. State ex rel. v. Baldwin, 45 Conn. 134, is very similar to the instant case. It involved the validity of a statute which, at one and the same time, purported to abolish the board of county commissioners of New Haven County and to create a new board, to be appointed by the legislature. The statute was held invalid, the court saying, at pages 142 ff: "If the law under which the relators were appointed was in fact repealed and the office actually abolished, then the relators could not successfully claim that they were county commissioners, for, as we have already seen, the legislature may repeal any law, with the exception before stated [not here relevant], passed by its predecessors, and may abolish any office created by legislative enactment. But has the legislature by the passage of this act accomplished either of the above results?

We have then this condition of things -- an act of the legislature repeals by its terms a certain section of the General Statutes and abolishes a board of officers appointed under it, and the same act creates precisely the same board and clothes them with the same powers and duties enumerated in the section repealed. Can this be done? We think not. The act in question contains the elements of its own destruction. It attempts to kill and make alive at the same instant, an impossibility." See also: McChesney v. Trenton, 50 N.J.L. 338; Hunziker v. Kent, 111 N.J.L. 565; State ex rel. v. Leonard, 86 Tenn. 485. An early case in point is Case of Gibbes, 1 Desaussure's Eq. Reports 587 (S.C.). Under the constitution of that state the only method of removing a "master in equity" was by impeachment. The legislature passed a new judiciary law, substituting a "commissioner and register in equity" for a "master in equity." The court in declaring the act unconstitutional, said, at page 588, "If the bare changing of the name, and not the duty of the officer was sufficient to deprive him of his office, the legislature might thus get rid of any officer, and thereby render the clause in the Constitution respecting impeachments a mere nullity."

An office not constitutional exists by the will of the legislature only, and may be abolished at any time, and the incumbent has no standing to complain: Com. v. Weir, 165 Pa. 284. It does not follow, however, that the legislature can, by direct or indirect means, continue the office and remove an incumbent whom it has not appointed. And it may not, for such purpose, change the appointing power, thereby shifting the power of removal. The right to remove "appointed officers" (and civil service commissioners "elected" by city council fall within that classification: see Com. ex rel. v. Likeley, 267 Pa. 310) is conferred, not upon the appointing power, but upon "the power by which they shall have been appointed." [Italics added.] That the constitutional method of removal provided in Article VI, section 4, is exclusive and prohibitory of any other mode which the legislature may deem better or more convenient is no longer open to question (Bowman's Case, 225 Pa. 364; Com. ex rel. v. Hoyt, 254 Pa. 45; Com. ex rel. v. Reid, 265 Pa. 328; Com. ex rel. v. Benn, 284 Pa. 421; Com. ex rel. v. Kelly, 322 Pa. 178), except where the legislature in creating the office prescribes a different method: Georges Township School Directors, 286 Pa. 129; Milford Township Supervisors' Removal, 291 Pa. 46. It follows, since there was no real abolishment of the office, that the attempted removal of the then existing commissioners was beyond the power of the legislature. Under the Constitution they could be removed only by the power which appointed them.

These acts are also violative of Article III, section 13. Here again the abolition of an office is not prohibited; clearly forbidden, however, is the diminution of an incumbent's salary or emoluments during the term if the office continues. This constitutional provision applies as well to statutory officers as to constitutional officers: Com. ex rel. v. Moffitt, 238 Pa. 255; Com. ex rel. v. Moore, 266 Pa. 100. Since the effect of the acts would be to deprive the former commissioners of all compensation for the balance of the terms for which they were appointed, without abolishing the office, the constitutional restraint is a complete bar.

Though our conclusions seem self-evident, appellants insist however, that the legislation is valid. There is little force in their position because they have not been able to find a single case to support them. The cases they cite are not in point. Some of them had nothing to do with abolishing an office or removing an incumbent, and were decided under the Constitution of 1838. ^[3] The rest have to do...