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NAEF v. ALLENTOWN (03/21/67)

decided: March 21, 1967.

NAEF, APPELLANT,
v.
ALLENTOWN



Appeals from judgments of Court of Common Pleas of Lehigh County, June T., 1966, Nos. 222 and 223, in cases of Bernard B. Naef, Jack I. Kaufman and Paul M. Eyster v. City of Allentown; and Same v. City of Allentown, Ray B. Bracy, Mayor, William S. Ritter et al.

COUNSEL

O. Jacob Tallman, with him John R. Hudders, and Butz, Hudders & Tallman, for appellants.

Harry A. Kitey, Assistant City Solicitor, for City of Allentown, appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 424 Pa. Page 598]

The question posed by these appeals is, whether or not the city solicitor and assistant city solicitors of a third class city in Pennsylvania may be removed from office and deprived of the emoluments thereof at the pleasure of the city council, and, without cause shown, at any time prior to the expiration of the four-year terms for which the appointments were made.*fn1 The lower court answered the question in the affirmative. We agree and affirm.

Article VI, § 4 of the Constitution of Pennsylvania provides in part: "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."

In a multitude of decisions, this Court has ruled that, under the above constitutional provision, appointed

[ 424 Pa. Page 599]

    public officers are removable from office at the pleasure of the appointive power even though the appointments were made for a statutorily fixed term. See, Philadelphia v. Sacks, 418 Pa. 193, 210 A.2d 279 (1965); Schluraff v. Rzymek, 417 Pa. 144, 208 A.2d 239 (1965); Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 (1943); Commonwealth ex rel. Schofield v. Lindsay, 330 Pa. 120, 198 A. 635 (1938); Commonwealth ex rel. v. Hiltner, 307 Pa. 343, 161 A. 323 (1932); Muir v. Madden, 286 Pa. 233, 133 A. 226 (1926); and, Lane v. Commonwealth, 103 Pa. 481 (1883). Moreover, in Mitchell v. Chester Housing Authority, 389 Pa. 314, 132 A.2d 873 (1957), such right of removal was upheld, even though the statute under which the appointments involved (secretary and executive director of a public housing authority) were made provided for a system of rotated or staggered terms.

However, in Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), this Court held that Article VI, § 4 of the Pennsylvania Constitution, supra, must be read in conjunction with Article XII, § 1 thereof, which provides in part as follows, "all officers, whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law . . .," and ruled that where the legislature creates a public office, it may impose such terms and limitations with reference to tenure or removal of an incumbent as it sees fit. In Watson, supra, the Court concluded that where public officers are appointed to a legislatively created commission or board, for a statutorily fixed term with staggered expiration dates, the presence of the staggered term provision indicates a legislative intent that the holders of the office are not to be removed at the pleasure of the appointor. This ruling in Watson was subsequently followed in Bowers v. Penna. Labor Relations Board, 402 Pa. 542,

[ 424 Pa. Page 600167]

A.2d 480 (1961); and, Commonwealth ex rel. Hanson v. Reitz, 403 Pa. 434, ...


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