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STROUP ET AL. v. KAPLEAU. STROUP ET AL. (12/28/73)

decided: December 28, 1973.

STROUP ET AL., APPELLANTS,
v.
KAPLEAU. STROUP ET AL., APPELLANTS, V. LINDSEY. STROUP ET AL., APPELLANTS, V. MCNAIR. STROUP ET AL., APPELLANTS, V. SCHONEK



Appeals from orders of Commonwealth Court, Nos. 35 to 38, inclusive, C.D. 1972, in re Stanley G. Stroup et al. v. Harry E. Kapleau; Same v. Richard W. Lindsey; Same v. Earl P. McNair; same v. Wilbur E. Schonek.

COUNSEL

Bruce E. Cooper, with him Wm. A. Kramer, 2d, and Edward C. Hussie, for appellants.

Lawrence J. Beaser, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Kapleau, appellee.

Harold E. Kohn, Special Attorney, with him Lawrence J. Beaser, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Lindsey, McNair and Schonek, appellees.

Lewis H. Van Dusen, Jr., and Drinker, Biddle & Reath, for Philadelphia Judicial Council, amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this concurring opinion. Concurring Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissenting opinion.

Author: Manderino

[ 455 Pa. Page 173]

After the 155th Session of the General Assembly of the Commonwealth of Pennsylvania adjourned sine die on December 28, 1971, the following appointments to office were made by the Governor of the Commonwealth of Pennsylvania, Milton J. Shapp. Appellee, Richard W. Lindsey, was appointed as a member and chairman of the Pennsylvania Board of Probation and Parole; appellee, Harold E. Kapleau, was appointed as a member and chairman of the Pennsylvania Milk Marketing Board; appellee, Earl P. McNair, was appointed as a member of the State Tax Equalization Board of Pennsylvania; and appellee, Wilbur E. Schonek, was appointed as a member of the Pennsylvania Harness Racing Commission. Appellees, Kapleau, Lindsey, and McNair, were appointed on December 29, 1971. Appellee, Schonek was appointed on January 4, 1972.

The appellants, Senators Stanley G. Stroup, Richard C. Frame, and Richard A. Tilghman, members of the Senate of the Commonwealth of Pennsylvania, brought actions in quo warrantor in the Commonwealth Court challenging the right of the appellees to hold their appointed offices without the advice and consent of the Senate pursuant to article IV, section 8(b), of the Pennsylvania Constitution. Preliminary objections filed by the appellees were sustained and the appellants' complaints were dismissed. Stroup v. McNair, 5 Pa. Commonwealth Ct. 244 (1972); Stroup v. Schonek, 5 Pa. Commonwealth Ct. 257 (1972); Stroup v. Lindsey, 5 Pa. Commonwealth Ct. 338 (1972); Stroup v. Kapleau, 5 Pa. Commonwealth Ct. 362 (1972). The cases were consolidated for the appeals which followed to this Court.

[ 455 Pa. Page 174]

The first issue raised is whether the appellants had standing to commence this action in quo warrantor. The Commonwealth Court held that they did and we agree. An action in "[q]uo warrantor can be instituted to determine the title to public office only by the Attorney General, the District Attorney or a private individual who has a special interest as distinguished from the interest of the public generally." Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 108, 232 A.2d 729, 733 (1967) (emphasis added). In Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933), this Court stated: "To invoke the issuance of a writ of quo warrantor the relator, therefore, must show in himself an interest in the controversy . . . . He must possess some peculiar, personal interest aside from his general interest as a member of the public." Id. at 345, 166 A. at 879 (emphasis added). Article IV, section 8(a), of the Pennsylvania Constitution provides: "The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate." (Emphasis added.)

Under the above constitutional provision, each member of the Senate has an individual right to confirm or reject certain gubernatorial appointments. Each Senator has an interest in such appointments aside from that Senator's interest as a member of the general public. We, therefore, conclude that the appellants in this case, all members of the Senate of the Commonwealth of Pennsylvania, had standing to commence this action in quo warrantor.

The second issue before us concerns the circumstances under which the Governor may exercise his

[ 455 Pa. Page 175]

    constitutional authority under article IV, section 8(b), to make temporary recess appointments which do not require confirmation by the Senate of Pennsylvania. The appellants contend that since the Governor did not attempt to make permanent appointments to those offices which had become vacant prior to the Senate's final adjournment, he could not make, thereafter, temporary recess appointments.

Prior to the final adjournment of the 155th General Assembly on December 28, 1971, three of the offices involved in this case were vacant in the sense that they were not occupied by permanent gubernatorial appointees. These were the offices to which appellees, Lindsey, Kapleau, and McNair, were appointed, and only these appointments are involved in this part of our discussion. Appellee Schonek's appointment was to an office which was not vacant prior to the Senate's final adjournment. The Governor did not submit any nominees for permanent appointment to the three offices vacant prior to the Senate's final adjournment. A permanent appointment requires the submission of a nominee to the Senate under the second sentence of article IV, section 8(b). After the Senate's final adjournment, the Governor made temporary appointments to these offices. Such appointments under the first sentence of article IV, section 8(b), do not require the submission of nominees to the Senate. The relevant part of article IV, section 8(b), provides: "(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, [the Governor] may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session and fill vacancies happening in the office of Auditor General or State Treasurer or in any other elective office he is authorized to fill. If the vacancy happens during the session of the Senate (except as otherwise

[ 455 Pa. Page 176]

    provided in this Constitution) he shall nominate to the Senate, before its final adjournment."

The above section of the Pennsylvania Constitution and another section relating to gubernatorial appointments to judicial vacancies have been before this Court on prior occasions. In Commonwealth ex rel. Lafean v. Snyder, 261 Pa. 57, 104 A. 494 (1918), decided over a half century ago, it was held that the Governor had the constitutional authority to make a temporary recess appointment, even though the office was vacant prior to the recess of the Senate which began at the time of its final adjournment. More recently, in Ritenour v. Peirce, 442 Pa. 1, 272 A.2d 900 (1971), in an alternate ground for the decision, the rationale of Lafean was followed. See Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 491 n.2, 281 A.2d 57, 60, n.2 (1971). In Ritenour, a temporary recess appointment was upheld to an office which was vacant prior to the Senate's final adjournment. The appellants have not questioned the rationale or holdings of either Lafean or Ritenour. They point out, however, that in both Lafean and Ritenour, the Governor had submitted a nominee to the Senate prior to the Senate's final adjournment. In Lafean, the Senate rejected the nominee and in Ritenour the Senate failed to act; whereas in the cases before us, the Governor did not submit nominees to the Senate prior to its final adjournment. The lack of any nominations, according to the appellants, should preclude temporary recess appointments, after the Senate's final adjournment, to offices which were vacant prior to the final adjournment.

The appellants argue that the words "shall nominate" in the second sentence of article IV, section 8(b), are mandatory and it therefore follows that the Governor's failure to nominate before final adjournment precludes a temporary recess appointment under the first sentence of article IV, section 8(b). While it is generally

[ 455 Pa. Page 177]

    true, that the word "shall" in a constitution is interpreted as a mandatory provision, it does not follow that non-submission of a nominee under the second sentence precludes the Governor from exercising the authority separately granted under the first sentence which contains no specific limitation on the authority granted except as to the time limit of the temporary recess appointment. Article IV, section 8(b), does not say that submission of a nominee under the second sentence is a prerequisite to the exercise of the authority granted in the first sentence. We would have to read such a provision into the Constitution.

The appellants, as members of the legislative branch of government, have asked the judicial branch to declare an act of the executive branch to be in violation of the Constitution. In the face of constitutional challenges we have frequently said that the legislative acts of the legislative branch, the General Assembly, in which the supreme legislative power is vested (article II, section 1), are to be presumed constitutional unless clearly shown to be otherwise. The judicial branch must apply that same restraint and that same test in the face of constitutional challenges to the executive acts of the executive branch, the Governor, in whom the supreme executive power is vested (article IV, section 1). Such acts must be presumed constitutional unless clearly shown to be otherwise. In Lafean, this Court refused to read into article IV, section 8(b), any limitation on the Governor's explicit authority to make temporary recess appointments. The rationale of Lafean is applicable to this case.

In Lafean, the Governor's nominee was rejected by the Senate. The same person was then given a temporary recess appointment. The argument was made that if the Governor could make a temporary recess appointment of a person already rejected by the Senate, the constitutional provision requiring the consent of the

[ 455 Pa. Page 178]

Senate would be meaningless. Lafean, nonetheless, refused to read any limitation into the constitutional authority of the Governor to make temporary recess appointments, saying that: "[t]he constitutional provision places no express limitation upon the choice of the Governor in appointing to fill vacancies." 261 Pa. at 62, 104 A. at 495. Lafean rejected the argument that: "the people, in adopting the constitutional provision in question [placed] an implied limitation upon the power of the Governor to fill vacancies by reason of also having provided that appointments for regular terms of service, or unexpired terms, should require the approval of the Senate." Id. Lafean distinguished between the Governor's authority to fill vacancies for a temporary period and his authority to permanently fill vacancies for a full or unexpired term. The temporary appointment authority does not require the consent of the Senate under any circumstances, because there is no such provision in the Constitution. The authority to appoint permanently for a full term, or the balance of an unexpired term, is the only executive authority requiring Senate consent. Lefean said: "It thus appears the Governor is authorized to fill a vacancy temporarily . . . but not for a full or unexpired term. . . ." Id.

Lafean concluded that the Governor's temporary appointment authority was separate and distinct from his permanent appointment authority. The former does not require Senate consent. The latter does. Lafean thus held that the Senate's rejection of a person for a permanent appointment did not have any effect on the Governor's authority to make a temporary appointment.

No persuasive reason has been presented as a basis for rejecting the rationale of Lafean. The arguments presented now are the same as those presented and rejected in 1918. Since that time, article IV, section 8(b),

[ 455 Pa. Page 179]

    has been amended and the wording changed with no indication in the changes that the Governor's authority to make temporary appointments was limited by the provision which subjects permanent appointments to Senate confirmation. In fact, the 1967 amendment to article IV, section 8(b), appears to strengthen the rationale of Lafean -- the executive authority to appoint temporary appointees is distinct and separate from the authority to appoint permanent appointees. The 1874 Constitution said that the Governor "shall have the power to fill all vacancies that may happen, in offices to which he may appoint, during the recess of the Senate, by granting Commissions . . . ." (Emphasis added.) In the 1967 amendment, the wording of the comparable provision is that the Governor " may, during the recess of the Senate, fill vacancies happening in offices to which he appoints, by granting Commissions . . . ." (Emphasis added.)

The wording of the 1874 provision and the rewording under the 1967 amendment are almost identical if the two provisions are read omitting the words, during the recess of the Senate. The key change appears to be the relocation of the phrase, during the recess of the Senate. In the 1874 provision, that phrase arguably modified the phrase, all vacancies that may happen. The Lafean case specifically pointed out that possibility. The two phrases read together arguably meant that a vacancy had to happen during the recess in order for the Governor to exercise his authority to make temporary appointments. That argument has been considerably weakened, if not destroyed, by the 1967 amendment. The phrase, during the recess of the Senate, was relocated and now can only modify the words, [ the ...


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