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MCSORLEY v. PENNSYLVANIA TURNPIKE COMMISSION. TORRANCE V. PENNSYLVANIA TURNPIKE COMMISSION. (06/28/57)

June 28, 1957

MCSORLEY
v.
PENNSYLVANIA TURNPIKE COMMISSION. TORRANCE V. PENNSYLVANIA TURNPIKE COMMISSION.



Original jurisdiction, Nos. 44 and 45, May T., 1957, sur special certiorari to Court of Common Pleas of Dauphin County, 1957, Commonwealth Docket Nos. 63 and 64, in cases of G. Franklin McSorley v. Pennsylvania Turnpike Commission and John F. Byrne et al. and James F. Torrance v. Pennsylvania Turnpike Commission and John F. Byrne et al. Complaints dismissed.

COUNSEL

James H. Booser, with him Samuel A. Schreckengaust, Jr., Sterling G. McNees, and McNees, Wallace & Nurick, and Harold E. McCamey, and Dickie, McCamey, Chilcote, Reif & Robinson, for plaintiff, G. Franklin McSorley.

Ernest S. Burch, with him James H. Stewart, Jr., and Nauman, Smith, Shissler & Hall for plaintiff, James F. Torrance.

Thomas D. McBride, Attorney General, with him Joseph L. Donnelly, Deputy Attorney General, Henry E. Harner, General Counsel, Pennsylvania Turnpike Commission, and Charles H. Stone, Legal Assistant, for defendants.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.

Author: Jones

[ 390 Pa. Page 82]

OPINION BY MR. CHIEF JUSTICE JONES

These two actions in mandamus are before us on original jurisdiction. The proceedings were instituted in the Court of Common Pleas of Dauphin County by the respective plaintiffs each of whom is a member of the Pennsylvania Turnpike Commission which, with the three other members of the Commission, are the defendants. After the complaints and answers had been filed, the plaintiffs requested us by petition (joined in by the Attorney General as counsel for the defendants) to certiorari the records for our original and final disposition. At the same time the one plaintiff and the defendants filed of record a stipulation of all material facts, the stipulation being in lieu of the pleadings theretofore filed. The other case is here on the pleadings,

[ 390 Pa. Page 83]

    but none of the material facts is disputed. Because of the public importance of the issue involved and the desirability of a conclusive decision at the earliest possible date, special certiorari were issued, and the cases have been argued before us. The legal question involved is the same in both cases and will be dealt with in this one opinion. It arose out of the following circumstances.

The plaintiffs, James F. Torrance and G. Franklin McSorley, were duly appointed and confirmed as members of the Pennsylvania Turnpike Commission for terms expiring respectively on June 4, 1957, and June 4, 1963. Presentments having been made by a special grand jury, which had investigated the administration of the affairs of the Pennsylvania Turnpike Commission, the regular grand jury for Dauphin County for the January Session 1957, on the basis of the presentments and evidence presented before it, returned true bills of indictment on January 23, 1957, against the plaintiffs, inter alia, charging James F. Torrance with willful misbehavior in his office as a Commissioner of the Pennsylvania Turnpike Commission and with criminal conspiracy to defraud the Commission and G. Franklin McSorley with willful misbehavior in his office as Commissioner.

On January 25, 1957, the Governor addressed to each, Torrance and McSorley, an identic letter wherein he stated that, inasmuch as the grand jury of Dauphin County had found true bills of indictment against them, he believed it proper for them to stand aside from their duties as members of the Pennsylvania Turnpike Commission and that accordingly, acting under the powers vested in him as Governor of the Commonwealth, he thereby suspended them from such duties, without pay, effective at the close of business January 30, 1957, until the charges against them are

[ 390 Pa. Page 84]

    decided in the courts. On and after January 31, 1957, the three remaining members of the Commission, acting on the authority of the Governor's order of suspension, excluded the plaintiffs from all meetings of the Commission and divested them of all authority to perform any official acts for or on behalf of the Commission as members thereof. Thereupon, the plaintiffs instituted the actions now before us seeking, thereby, judgments requiring the defendants to accord to them the duties, rights, privileges and emoluments of Commissioners of the Pennsylvania Turnpike Commission and for their unpaid salaries from January 31, 1957.

The plaintiffs contend that the Governor lacks power to suspend a member of the Pennsylvania Turnpike Commission in the circumstances here obtaining, basing their contention principally, if not solely, on our decision in Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354. It is evident that the plaintiffs seriously misapprehend what was before us for decision in the Watson case and what we there decided.

After reciting the material facts in the Watson case, we stated the matter for decision as follows: "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" (Emphasis supplied). Watson himself, as plaintiff, posed the question thusly, - "did the Governor of Pennsylvania have the power to remove him from office without cause, prior to the expiration of plaintiff's term of office?" (Emphasis supplied). Throughout his brief, Watson's attack on his removal from office was uniformly restricted to the fact that the Governor's action in the premises was taken "at his

[ 390 Pa. Page 85]

    pleasure" and not for cause. And, in the oral argument of counsel for the plaintiff, it was implicit, and understandably so, that a removal by the Governor of a Turnpike Commissioner for cause would present quite a different question. Our decision in the Watson case was, therefore, consonantly limited to the holding that, although the Turnpike Commissioners are appointed by the Governor pursuant to the Act of May 21, 1937, P.L. 774, "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" (Emphasis supplied).

It is clear that the plaintiffs' present contention is based upon a disregard of the restricted scope of our ruling in the Watson case and, if adopted, would place limitations upon the Governor's power and duty under Article VI, Section 4, of the Constitution which would operate to nullify the plain and necessary intendment of the Constitution.

Article VI, Section 4, in addition to ordaining that all officers "shall be removed on conviction of misbehavior in office or of any infamous crime", expressly provides that "Appointed officers ... may be removed at the pleasure of the power by which they shall have been appointed" and that "All officers elected by the people ... shall be removed by the Governor for reasonable cause,... on the address of two-thirds of the Senate" (Emphasis supplied). Thus, it is at once evident that while the removal of an elected officer for reasonable cause is expressly provided for by the Constitution, the power to remove an appointed officer for reasonable cause is necessarily to be inferred from the appointer's authority to remove an appointee at

[ 390 Pa. Page 86]

    his pleasure. Stated otherwise, the constitutional provision comprehends removal of an appointee for cause as coming within the appointor's broad power in the premises. If that were not so, then there is no constitutional provision for the removal of an appointed officer for cause although an elected officer may be so removed. Such a patently anomalous eventuality could result only from specious reasoning on the intent of the germane provisions of the Constitution.

The initial enjoinder of Article VI, Section 4, is that "All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime." The latter clause has been held to be self-executing: Commonwealth v. Davis, 299 Pa. 276, 279, 149 A. 176. It logically follows that if officers do not behave themselves well while in office, they are removable for cause. If their blamable conduct proves sufficient to convict them of misbehavior in office or any infamous crime, they are automatically removed by virtue of the self-executing provision of Article VI, Section 4, hereinabove quoted, but, until then, they are removable for cause in like connection at the pleasure of the appointor. The power to remove an appointee for cause, which is clearly implied in Article VI, Section 4, is all the more indicated when the Governor happens to be the appointor since, by Article IV, Section 2, of the Constitution, he is expressly invested with the "supreme executive power" of the Commonwealth and is specifically charged to "take care that the laws be faithfully executed. ..."

For what reason, then, would it be suggested that the Governor's power to remove a Turnpike Commissioner for cause has been inhibited? Only that in the Watson case, supra, we deduced a legislative intent from the Pennsylvania Turnpike Act of May 21, 1937,

[ 390 Pa. Page 87]

P.L. 774, that the terms for which Commissioners were appointed and confirmed were not to be foreshortened by the Governor without cause, i.e., merely at his whim or personal desire. We did not, however, deduce any legislative intent from the conditions annexed by the Act of 1937, supra, to the tenure of the four appointed Commissioners that they were to be immune from removal for cause and thus be elevated to a status superior to all other appointed officers. The Governor's power and duty to remove an appointed officer for cause stems from the constitutional provisions to which reference has been made hereinabove. It is questionable, indeed, whether the legislature could constitutionally impose any restraint on the Governor's power to remove an appointee for cause in any instance (compare Bowman's Case, 225 Pa. 364, 74 A. 203) which it did not attempt to do by the Turnpike Commission Act of 1937, supra.

The power of the Governor to remove an appointee for cause embraces the power to suspend for cause; the greater implies the less. Indeed, we recently had occasion to recognize that a public school superintendent possesses inherent power to suspend a teacher for cause even though the superintendent was admittedly without power to remove the teacher: see Kaplan v. Philadelphia School District, 388 Pa. 213, 130 A.2d 672. While there was a division of opinion in this court on the main question involved in the Kaplan case, we were unanimous that a superintendent of schools possesses the inherent power to suspend for cause a teacher who had tenure guaranteed him under a written contract with the School District. The Superior Court was likewise unanimously of the same opinion in the Kaplan case as was also the court below. Surely the Governor, who is invested with the supreme executive power of the Commonwealth, is not less qualified to suspend an

[ 390 Pa. Page 88]

    appointee for cause especially when action to that end is not otherwise provided for by law.

In any instance where cause is the basis for the Governor's action, whether it be removal or suspension that is indicated, it must depend upon the seriousness of the justification for the action. While no inference of guilt is to be drawn from the mere fact of the indictments against the plaintiffs, who will remain clothed with a presumption of innocence until their guilt is established, nevertheless the indictments do furnish probable cause for the Governor's belief that the plaintiffs have been guilty of wrongdoing in their offices which is sufficient to constitute just cause for suspending them from the duties of their offices until the charges against them are decided in the courts. The justification for the suspension of an appointed officer, not subject to removal without cause (i.e., a Turnpike Commissioner), must, of course, be substantial and not an offense consisting of a mere malum prohibitum. Article VI, Section 4, supplies the appropriate definition. The offense must be such that, if proven, will constitute guilt of misbehavior in office or any infamous crime for which, upon conviction, the offender would be removable from office automatically.

A brief for one of the plaintiffs cites the debates of the Constitutional Convention of 1873 (Vol. 3, p. 233) in an effort to prove that it was not the delegates' intention in Article VI, Section 4, of the Constitution to confer upon the Governor any power to suspend an officer temporarily. It is at once evident, however, upon reference to the cited colloquy, that what the delegates had in mind were elected officers. Thus, delegate Curtin's inquiry about the Governor's power to suspend officers of the State temporarily specifically mentioned the Auditor General and State Treasurer in identifying officers contemplated by his question. And,

[ 390 Pa. Page 89]

    under the applicable rule of ejusdem generis his descriptive inclusion of "any other officer" could mean only such as the Auditor General or State Treasurer, i.e., elected officers. It would do violence to the words employed to infer anything more. Of course, Article VI, Section 4, did not confer upon the Governor power to suspend elected officers. His power with respect to such is to remove them for reasonable cause on the address of two-thirds of the Senate. As to appointed officers, the power of the appointor under Article VI, Section 4, to remove appointees at his pleasure embraces at all times the power to remove for reasonable cause, as well, and that power includes the right to suspend for cause, as we have already seen.

The brief for the other plaintiff argues that, if the power to suspend a Commissioner for cause is accorded the Governor, he could by suspensions deprive the Commission of a quorum of active members and thus cause a breakdown of the Commission. The apprehension is, of course, speculative, where, as here, the question is whether two members of the Commission under formal charges of misbehavior in their offices should be required to stand aside from participation in the affairs of the Commission until the charges have been judicially disposed of. In any event, the law will not be found powerless to protect, manage and operate the properties of the Turnpike Commission, pending suspension of Commissioners, if the number suspended should at any time be such as to deprive the Commission of a quorum of its members - a situation with which we are not now confronted. See, e.g., Dalzell v. Kane, 321 Pa. 120, 123, 183 A. ...


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