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BOWERS v. PENNSYLVANIA LABOR RELATIONS BOARD (01/16/61)

January 16, 1961

BOWERS
v.
PENNSYLVANIA LABOR RELATIONS BOARD, APPELLANT.



Appeal, No. 31, May T., 1960, from judgment of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1957, No. 406, in case of Clarence P. Bowers v. Pennsylvania Labor Relations Board et al. Judgment affirmed.

COUNSEL

Harry J. Rubin, Deputy Attorney General, with him Anne X. Alpern, Attorney General, for appellants.

Paul H. Rhoads, with him George B. Balmer, and Snyder, Balmer & Kershner, and Rhoads, Sinon & Reader, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 402 Pa. Page 543]

OPINION BY MR. CHIEF JUSTICE JONES.

Clarence P. Bowers, the plaintiff, was appointed by the Governor on June 20, 1955, as a member of the Pennsylvania Labor Relations Board for a term to expire on June 2, 1959. The appointment was made under authority conferred upon the Governor by Section 4(a) of the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, No. 294, as amended, 43 PS § 211.4(a), and was duly confirmed by the State Senate

[ 402 Pa. Page 544]

    pursuant to a requirement of the Act. On November 8, 1957, the Governor, in asserted reliance upon Article IV, § 4, of the Pennsylvania Constitution for his authority, purported to remove Bowers forthwith from his office and so notified him the same day both by telegram and by letter. The cited constitutional provision declares, inter alia, that "Appointed officers... may be removed at the pleasure of the power by which they shall have been appointed." Article XII, § 1, of the Pennsylvania Constitution provides that "All officers... shall be elected or appointed as may be directed by law."

Bowers instituted this action of mandamus in the Court of Common Pleas of Dauphin County against the members of the Pennsylvania Labor Relations Board, the Secretary of Labor and Industry, the Auditor General and the State Treasurer, seeking to compel the members of the Labor Relations Board and the Secretary of Labor and Industry to recognize him as a member of the Labor Relations Board and to permit him to participate in the deliberations and actions of the Board and to perform the normal and lawful functions of a member of the Board until the expiration of the term specified in the Commission evidencing his appointment. The plaintiff also sought judgment in his favor requiring the Secretary of Labor and Industry to continue to certify to the Auditor General and the State Treasurer the amount of salary due him as a member of the Labor Relations Board and requiring the Auditor General to cause warrants to be drawn for the payment of such salary and the State Treasurer to pay the salary so warranted.

The defendant officials, represented by the Attorney General of the Commonwealth, filed preliminary objections to the complaint on the ground that it failed to state a cause of action for the assigned reason, inter alia, that the Governor had acted in strict compliance

[ 402 Pa. Page 545]

    with the authority vested in him by Article IV, § 2, and Article VI, § 4, of the Pennsylvania Constitution, whereby it was the Governor's absolute right to remove, at his pleasure, the plaintiff as a member of the Pennsylvania Labor Relations Board.

The court below filed an opinion holding that the Governor could not dismiss the plaintiff as a member of the Pennsylvania Labor Relations Board without cause and, accordingly, entered an order dismissing the preliminary objections and giving the defendants thirty days in which to answer the complaint, thus leaving for further litigation the question whether or not the plaintiff had been dismissed for cause.

The defendants then filed a responsive answer to the complaint, averring new matter to which the plaintiff filed a reply. By agreement of counsel the case was tried to the court without a jury.

The trial judge concluded that the defendants had failed to prove that the plaintiff was removed for cause and, thereupon, entered an order giving judgment for the plaintiff against the defendants and directing that the plaintiff be paid the emoluments of the office due him. To this order, the defendants filed exceptions which, pursuant to stipulation of counsel, were subsequently dismissed without argument and judgment was then entered in favor of Clarence P. Bowers, the plaintiff, and against the defendants, from which judgment the defendant officials have now appealed.

All public officers are, of course, removable for cause. In McSorley v. Pennsylvania Turnpike Commission, 390 Pa. 81, 86, 134 A.2d 201 (1957), we so recognized in pointing out that: "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

[ 402 Pa. Page 546]

    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."

However, in the instant case, the defendants have acquiesced in the conclusion of the court below that they failed to prove cause as the motivating impetus of the Governor's attempted removal of the plaintiff. The sole question of law, therefore, on this appeal, is, as stated in appellants' brief: "May the Governor of Pennsylvania, at his pleasure, remove a member of the Pennsylvania Labor Relations Board from office?" To that question we shall now address ourselves.

In Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 123, 125 A.2d 354 (1956), we declared it to be "... 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." See, in accord: Marshall Impeachment Case, 360 Pa. 304, 310-11, 62 A.2d 30 (1948); Suermann v. Hadley, 327 Pa. 190, 200, 193 Atl. 645 (1937); Weiss v. Ziegler, 327 Pa. 100, 104, 193 Atl. 642 (1937); Milford Township Supervisors' Removal, 291 Pa. 46, 49-51, 139 Atl. 623 (1927); Commonwealth ex rel. Vesneski v. Reid, 265 Pa. 328, 333, 108 Atl. 829 (1919); Bowman's Case, 225 Pa. 364, 368, 74 Atl. 203 (1909). Confirmation of this

[ 402 Pa. Page 547]

    constitutionally unassailable principle does not reside alone in judicial pronouncement. The legislature itself has exercised its power so to enact.

For example, by Section 201 of the Milk Control Law of April 28, 1937, P.L. 417, 31 PS § 700j-201, the legislature, after creating "an independent administrative commission to be known as the Milk Control Commission", composed of three members to be appointed by the Governor and confirmed by the State Senate, for staggered terms of six years each, specifically prescribed that "The Governor may remove any commissioner for inefficiency, neglect of duty or misconduct in office: Provided, That he is given a copy of the charges against him and an opportunity to be publicly heard in person or by counsel in his own defense upon not less than ten days' notice, and that the Governor file with the Department of State a complete statement of all charges made against such commissioner, together with a complete record of the proceedings and his findings thereon."

It is too plain for argument that, by this provision of the Milk Control Law, the legislature deliberately and effectively banished any thought of power in the Governor to remove, at his pleasure, a member of the Milk Control Commission. Obviously, if the Governor could also remove such a commissioner at his pleasure by virtue of Article VI, § 4, of the Constitution, he would not need trouble himself to make charges of inefficiency, neglect of duty or misconduct in office against an incumbent commissioner, whom he desired to remove, and follow the detailed procedure meticulously spelled out by § 201 of the Milk Control Law. See, also, Section 4 of the Act of March 31, 1937, P.L. 160, 66 @PS § 455, which enumerates the specific causes for which the Governor may remove a member of the Pennsylvania Public Utility Commission and provides for the filing of charges, notice, and a public hearing

[ 402 Pa. Page 548]

    at which the incumbent commissioner has an opportunity to be heard in person or by counsel.

It is manifest, therefore, that whether the legislature in creating an appointive office has evidence by its enactment an intention that the tenure of the appointee shall not be subject to termination at the pleasure of the appointing power presents a pure question of statutory construction which is peculiarly and exclusively the function of the judiciary to resolve. Such is the problem with which we dealt in the Watson case, supra, and such is, likewise, the scope of our present responsibility.

The Pennsylvania Labor Relations Act,*fn1 which created the office to which Bowers was appointed by the Governor, provides, in Section 4(a) as follows: "There is hereby created... the 'Pennsylvania Labor Relations Board'... which shall be composed of three members who shall be appointed by the Governor, but with the advice and consent of two-thirds of all the members of the Senate.... One of the original members shall be appointed for a term of two years, one for a term of four years, and one for a term of six years, but their successors shall be appointed for terms of six years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he is to succeed..." (Emphasis supplied).

The appellants would have us treat the emphasized portion of the foregoing statutory provision as a complete nullity and of no significance whatsoever. According to their contention, the specified provision might just as well have not been included in the carefully worded Act, notwithstanding that we are admonished by long established and firmly entrenched

[ 402 Pa. Page 549]

    rules of statutory construction that "Every law shall be construed, if possible, to give effect to all its provisions" and that the legislature, in the enactment of a law, is to be presumed to have intended the entire statute to be effective and certain: §§ 51 and 52(2) of the Statutory Construction Act of May 28, 1937, P.L. 1019, 46 PS §§ 551 and 552(2). None the less, the appellants argue, in effect, that Bowers' fixed term of office which, according to the express stipulation of the gubernatorial commission evidencing his appointment, was to expire June 2, 1959, was a mere fiction; that, in reality, what Bowers was appointed to, despite his commission's specification, was merely an indefinite term which would last no longer than it pleased the Governor that the appointee should continue in office. In short, the appellants interpret the statutory provision that members of the Pennsylvania Labor Relations Board shall be appointed for fixed terms to mean that such members shall be appointed for only so long, not exceeding six years, as shall please the Governor, and they construe the provision for staggered expiration dates for the terms of the members of the Board as being of no effect whatsoever and, consequently, meaningless.

Watson v. Pennsylvania Turnpike Commission, supra, was concerned with the attempted removal by the Governor, without cause, of a member of the Pennsylvania Turnpike Commission. We there had occasion to interpret the statutory provision contained in Section 4 of the Act of May 21, 1937, P.L. 774, No. 211, 36 PS § 652d, which provided that members of the Turnpike Commission should be appointed to ten-year terms, the expiration dates of which were fixed at staggered intervals. We interpreted the legislative intent evidenced by this arrangement as follows: "The purpose of the foregoing provision as to the terms of office of the Commissioners (i.e., those first to be appointed and

[ 402 Pa. Page 550]

    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 balance 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."

The legislature by providing in the Pennsylvania Labor Relations Act staggered expiration dates for fixed terms of Board members of a duration which, if fulfilled, would extend beyond the incumbency of the appointing Governor, thereby evidenced a desire and intent (just as in the case of the Act creating the Pennsylvania Turnpike Commission) that this important Board should at all times be in position to benefit from the counsel of experienced members who have acquired over the years of their tenure a knowledge and understanding of the Board's work so essential to a thoughtful and prudent solution of the many complex problems

[ 402 Pa. Page 551]

    encountered. This is especially true with respect to the administration of the Pennsylvania Labor Relations Act, involving, as it does, technical and delicate questions of labor-management relations. It is plain enough that, in the public interest, such Board members were not to be made amenable to political influence or discipline in the discharge of their official duties. Since we may not properly assume that the legislature intended to enact a meaningless and ineffectual (although carefully worded and clearly expressed) statutory provision, § 4(a) of the Pennsylvania Labor Relations Act must rightly be held to intend that duly confirmed members of the Pennsylvania Labor Relations Board possess tenure for the fixed terms for which they are appointed and may not be removed by the Governor except for cause.

The legislature has shown that, when it creates an administrative agency and provides that its members shall be appointed for fixed terms with staggered expiration dates, the intent thereby evidenced is that such members are not removable by the appointor at his pleasure. For instance, where, in a statute so phrased, the legislature has desired that the appointor may remove appointees at his pleasure, it has incorporated an express provision to that effect. Thus it is that, when Section 8(a) of the Parking Authority Law of June 5, 1947, P.L. 458, as amended, 53 PS § 348(a), was enacted providing that the powers of a municipal parking authority shall be exercised by a Board composed of five members, that each of such members shall be appointed for a term of five years, and that such terms shall expire at staggered intervals, the legislature expressly included a provision that "Members of the board may be removed at the will of the appointing power." If the fixed five year terms with staggered expiration dates, provided by the Parking Authority Law, did not imply, as a matter of statutory construction,

[ 402 Pa. Page 552]

    that the tenure of appointed members should endure for their fixed terms, without being subject to removal at the pleasure of the appointing power, then why did the legislature expressly add that members of the Board may be removed at the will of the appointing power? The appellants' contention would make this provision a useless and meaningless exertion on the part of the legislature.

The instant case is not to be distinguished, in principle, from Watson v. Pennsylvania Turnpike Commission, supra, upon which the court below properly relied in entering judgment for the plaintiff and against the defendants.

The foregoing is the decisional basis upon which the judgment for the plaintiff entered by the court below will be affirmed.

The writer is of the further opinion, which he feels duty-bound to express, that there is an additional compelling reason why the Governor may not remove, at his pleasure, a member of the Pennsylvania Labor Relations Board.

It is implicit in the American form of government, as ordained by the Constitution of both the United States and Pennsylvania, that the government consist of three co-ordinate branches, legislative, executive and judicial, and that one branch should not impinge on the province of another. Any interference by a member of the executive department of government with the tenure of an incumbent member of a quasi-judicial board or commission would plainly offend against this basic constitutional concept. The Supreme Court has twice declared that the President of the United States lacks power to remove without cause an appointed member of an administrative agency which possesses and exercises judicial powers: Wiener v. United States,

[ 402 Pa. Page 553]

    them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will.

"The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings 'should be free from the remotest influence, direct or indirect, of either of the other two powers.' Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice STORY in the first volume of his work on the Constitution, 4th ed., § 530, citing No. 48 of the Federalist, said that neither of the departments in reference to each other 'ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.' And see O'Donoghue v. United States, supra [289 U.S. 516], at pp. 530-531.

"The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department,

[ 402 Pa. Page 555]

    but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments."

That the Pennsylvania Labor Relations Board possesses judicial powers and performs duties of such nature is too plain for question. See §§ 7, 8 and 9 of the Pennsylvania Labor Relations Act, as amended, 43 PS §§ 211.7, 211.8 and 211.9. Specifically, § 8(c) provides that at a hearing on a charge of unfair labor practice, - "If, upon all the testimony taken, the board shall determine that any person named in the complaint has engaged in or is engaging in any such unfair labor practice the board shall state its findings of fact, and issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such reasonable affirmative action, including reinstatement of employes discharged in violation of clause (c) of subsection (1) of section six of this act, with or without back pay, as will effectuate the policies of this act. Such order may further require such person to make reasonable reports, from time to time, showing the extent to which the order has been complied with. If, upon all the testimony, the board shall be of the opinion that the person or persons named in the complaint has not engaged in or is not engaging in any such unfair labor practice, then the board shall make its findings of fact and shall issue an order dismissing the complaint." And, on appeal from a decision of the Board to any common pleas court (County Court in Allegheny County), § 9(a) of the Pennsylvania Labor Relations Act, 43 PS § 211.9(a), provides that "The findings of the board as to the facts, if supported by evidence, shall be conclusive." (Emphasis supplied). Such conclusiveness has the adjudicatory quality of a finding by a court of first instance.

[ 402 Pa. Page 556]

The excessive effect which the appellants ascribe to Article VI, § 4, of the State Constitution, if adopted, would thwart a permissible exercise of legislative will and preclude a quasi-judicial board from employing that degree of fairness, impartiality and objectivity which should and, in good conscience, must attend the exercise of judicial power. "For," as the Supreme Court observed in the Humphrey case (p. 629), "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." It is implicit as well as inherent in any just system of law that a party complaining of, or charged with, the commission of wrongs legally redressable, be entitled, at the very least, to a determination by a tribunal independent of the influence of powerful personages, political or otherwise.

In Wiener v. United States, supra, the plaintiff had been appointed to membership on the War Claims Commission by President Truman pursuant to authority granted by Section 2(a) of the War Claims Act of 1948, as amended, 62 Stat. 1240, 50 App. U.S.C.A., § 2001(a). Wiener was subsequently removed, without cause, by President Eisenhower for the assigned reason, - "I regard it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection." The Supreme Court, noting that the Commission was a quasi-judicial body, held that the President was without any such power of removal, saying (at page 356), "If, as one must take for granted, the War Claims Act precluded the President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing."

[ 402 Pa. Page 557]

The fundamental constitutional principle thus recognized and applied by the Supreme Court in the Humphrey and Wiener cases, supra, was actually written into Article VI, § 4, of our State Constitution wherein "judges of the courts of record" are expressly excluded from the appointor's power to remove at his pleasure. While this inhibition does not mention, eo nomine, members of quasi-judicial boards or commissions as being within the exclusion, the restraint as to them is inherent, none the less, in the very fabric of our Constitution. The reason why quasi-judicial boards or commissions were not specifically named in the exclusory clause of Article VI, § 4, expressly applicable to "judges of the courts of record," is patent. Such agencies were entirely unknown to this State's political customs and usages at the time of the drafting and adoption of ...


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