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BURTON HETHERINGTON v. JAMES A. MCHALE (11/02/73)

decided: November 2, 1973.

BURTON HETHERINGTON, EARL STRITE, G. W. ROBINSON, DUANE HARTSELL, T. A. DOEBLER, AND JAY COBLE, PLAINTIFFS,
v.
JAMES A. MCHALE, INDIVIDUALLY AND AS SECRETARY OF AGRICULTURE OF THE COMMONWEALTH OF PENNSYLVANIA, BERNARD HAMMER, INDIVIDUALLY AND AS ACTING EXECUTIVE SECRETARY OF THE PENNSYLVANIA HARNESS RACING COMMISSION, HENRY NIXON, INDIVIDUALLY AND AS DIRECTOR OF PLANT INDUSTRY, THOMAS L. ROWLAND, INDIVIDUALLY AND AS DIRECTOR OF PLANNING, RESEARCH AND GOVERNMENTAL SERVICES, AND RAYMOND J. KERSTETTER, INDIVIDUALLY AND AS DEPUTY SECRETARY OF AGRICULTURE OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS. BURTON HETHERINGTON, EARL STRITE, G. W. ROBINSON, DUANE HARTSELL, T. A. DOEBLER, AND JAY COBLE, PLAINTIFFS, V. JAMES A. MCHALE, INDIVIDUALLY AND AS SECRETARY OF AGRICULTURE OF THE COMMONWEALTH OF PENNSYLVANIA, AND ROBERT P. CASEY, AS AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, AND GRACE M. SLOAN, AS TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS



Original jurisdiction in cases of Burton Hetherington, Earl Strite, G. W. Robinson, Duane Hartsell, T. A. Doebler and Jay Coble v. James A. McHale, Individually and as Secretary of Agriculture of the Commonwealth of Pennsylvania, Bernard Hammer, Individually and as Acting Executive Secretary of the Pennsylvania Harness Racing Commission, Henry Nixon, Individually and as Director of Plant Industry, Thomas L. Rowland, Individually and as Director of Planning, Research and Governmental Services, and Raymond J. Kerstetter, Individually and as Deputy Secretary of Agriculture of the Commonwealth of Pennsylvania, Nos. 555 and 559 C.D. 1973, and Burton Hetherington, Earl Strite, G. W. Robinson, Duane Hartsell, T. A. Doebler, and Jay Coble v. James A. McHale, Individually and as Secretary of Agriculture of the Commonwealth of Pennsylvania, and Robert P. Casey, as Auditor General of the Commonwealth of Pennsylvania, and Grace M. Sloan, as Treasurer of the Commonwealth of Pennsylvania, No. 560 C.D. 1973.

COUNSEL

K. L. Shirk, Jr., with him Shirk, Reist & Buckwalter, for plaintiffs.

Frank P. Lawley, Jr., for defendant, Robert P. Casey.

Lawrence Silver, Deputy Attorney General, with him Richard Orloski, Deputy Attorney General, and Israel Packel, Attorney General, for remaining defendants.

Edward C. Hussie, with him Stephen C. MacNett, for amicus curiae.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 10 Pa. Commw. Page 504]

Understandably perplexed as to the appropriate form of action to be employed in this bizarre case, six of seventeen persons appointed to a statutorily created committee charged with administering certain agricultural research programs financed by the Pennsylvania Fair Fund brought actions in equity (No. 560 C.D. 1973), in quo warrantor (No. 559 C.D. 1973) and in mandamus (No. 555 C.D. 1973), seeking to enjoin meetings of or action by the committee unless plaintiffs participate therein; seeking judicial determination that plaintiffs are proper members of the committee and that they be seated thereon and to enjoin the approval of any research project and the allocation or expenditure

[ 10 Pa. Commw. Page 505]

    of any funds for such projects unless plaintiffs participate in the committee action. Named as party defendants are the Secretary of Agriculture and sundry other state officials.

In the equity action, a preliminary injunction was sought but application therefor was withdrawn after an agreement was reached by the parties that no committee meetings would be held pending outcome of this litigation. The Auditor General, by stipulation, was dropped as a party defendant in the equity action. Defendants then filed preliminary objections in all three actions which were consolidated for argument.

The preliminary objections, in the nature of a demurrer, assert that plaintiffs have failed to state a cause of action because the statute in question is unconstitutional insofar as it provides for the appointment of private citizens as representatives of private organizations to approve and oversee the expenditure of public funds.

The facts are not in dispute but these cases raise an issue without clear decisional precedent and of great importance to all citizens of the Commonwealth.

The Act of December 22, 1959, P.L. 1978, 15 P.S. § 2601 et seq., commonly referred to as the Harness Racing Act, established a Pennsylvania Fair Fund into which certain excess proceeds flowing into the State Harness Racing Fund are to be paid and which proceeds are appropriated for designated purposes.

Subsection (e) of Section 16 of said statute, 15 P.S. § 2616(e), prior to its amendment by the Act of September 28, 1972, P.L. , Act No. 212, provided that a portion of the Pennsylvania Fair Fund should be used for agricultural research projects ". . . as determined by the Secretary of Agriculture, from the recommendations submitted by a committee appointed by him, such committee to include in its membership the dean of the college of agriculture at the Pennsylvania State University

[ 10 Pa. Commw. Page 506]

    and the dean of the school of veterinary medicine of the University of Pennsylvania."

The subsequent legislative history on this subject and the administration of its revised provisions afford the background for and put in focus the first issue confronting us.

On June 5, 1972, the General Assembly finally enacted and sent to the Governor H.B. No. 1343, Pr. No. 2824, Session of 1971, which bill contained almost identical provisions to those now found in Act No. 212 of 1972. On June 15, 1972, by Veto No. 5, the Governor did not approve that bill and so advised the General Assembly. In his veto message, the Governor expressed his reason for doing so but did not assert that the legislation was unconstitutional.

On September 20, 1972, the General Assembly overrode the Governor's veto and its action was so certified by the Speaker of the House and President of the Senate. Thus, it became Act No. 212 of 1972. As amended, subsection (e) of Section 16 of the Act of December 22, 1959, P.L. 1978, provides in pertinent part that the responsibility for administering agricultural research projects within the limits of the funds appropriated for such purposes shall be as determined by: "a committee to include in its membership, the Secretary of Agriculture, the chairman and a minority member of the Agriculture Committee of the Senate, the chairman and a minority member of the Agriculture Committee of the House of Representatives, six persons designated by the Pennsylvania State Council of Farm Organizations, the chairman of the State Harness Racing Commission or his designate, one person designated by the Pennsylvania Canners and Fruit Processors Association, one person designated by the Pennsylvania Association of County Fairs and three persons designated by the Secretary of Agriculture from his staff." 15 P.S. § 2616(e) (Supp. 1973-1974).

[ 10 Pa. Commw. Page 507]

After this legislation became law over the Governor's veto, it is averred by plaintiffs, which are to be taken as true for present purposes, that they are designees of the Pennsylvania State Council of Farm Organizations to the committee in question, that the Secretary of Agriculture, acting under the statute, called a meeting on March 23, 1973, to be convened on April 5, 1973, in which call an agenda was included as was a list of the membership of the committee and progress reports on research projects to be considered for renewal. On appearing for the purpose of attending the meeting called by the Secretary of Agriculture, he then advised the plaintiffs that they were not authorized to serve on the committee, assigning as the reason therefor that the Attorney General by Official Opinion No. 30 dated April 4, 1973 -- the day before the scheduled meeting date -- prohibited them from doing so.

Several of the constitutional issues raised by defendants' preliminary objections here as to the provisions of Act No. 212 of 1972 are treated in the Attorney General's Official Opinion in which he concludes that the legislation is unconstitutional in that "(1) it is a usurpation of the power of appointment which is vested in the executive, and (2) ...


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