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HETHERINGTON v. MCHALE ET AL. (11/22/74)

decided: November 22, 1974.

HETHERINGTON
v.
MCHALE ET AL., APPELLANTS



Appeals from order of Commonwealth Court, Nos. 555, 559 and 560 C.D. 1973, in case of Burton Hetherington et al. v. James A. McHale et al.

COUNSEL

Larry Silver, Deputy Attorney General, with him Israel Packel, Attorney General, for appellants.

K. L. Shirk, Jr., with him Shirk, Reist and Buckwalter, for appellees.

Edward C. Hussie and Stephen C. MacNett, for amicus curiae.

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

Author: Roberts

[ 458 Pa. Page 481]

In these appeals from the Commonwealth Court, we are called upon to determine the constitutionality of a statute which grants to three private organizations absolute authority to designate a controlling number of the members of a Commonwealth committee responsible for the disbursement of substantial public funds. The Commonwealth Court determined that the statute is valid. Because we conclude that the power to appoint persons to conduct governmental functions cannot be delegated to private organizations, we hold the selection procedures of the challenged statute unconstitutional. We reverse.

The challenged statutory provision is an amendment to section 16(e) of the Pennsylvania Harness Racing Act.*fn1 It became law on September 20, 1972, when the

[ 458 Pa. Page 482]

General Assembly enacted the amendment over the Governor's veto.

Section 16 provides for the allocation of revenue collected pursuant to the Pennsylvania Harness Racing Act. After mandating certain disbursements, subsection (e) provides that half the remaining funds of $400,000, whichever is greater, shall be allocated for agricultural research projects selected by a committee of seventeen including six persons designated by the Pennsylvania Council of Farm Organizations, one person designated by the Pennsylvania Canners and Fruit Processors Association and one person designated by the Pennsylvania Association of County Fairs.

Following enactment of the amendment, the Secretary of Agriculture notified the Pennsylvania State Council of Farm Organizations of a scheduled meeting of the committee. The Council selected appellees as its designees. On April 4, 1973, one day prior to the scheduled session, the Pennsylvania Attorney General

[ 458 Pa. Page 483]

    issued Official Opinion No. 30 in which he advised the Secretary of Agriculture that the mandate of section 16(e) to include on the committee eight designees of private groups is unconstitutional. He further advised the Secretary that "you must refuse to recognize these persons as members of the Committee." In compliance with this opinion, the Secretary of Agriculture refused to seat these designees.

Appellees filed three actions in the Commonwealth Court: an action in equity to enjoin the committee from meeting or taking action in appellees' absence and separate actions in quo warrantor and mandamus to obtain judicial enforcement of their appointments. Appellants filed preliminary objections in the nature of a demurrer in each of the actions.

The Commonwealth Court overruled appellants' objections.*fn2 It held (1) that the statute did not violate the Constitution (2) that the Attorney General lacked the authority to unilaterally implement his opinion as to the unconstitutionality of a statute.*fn3 These appeals ensued.*fn4

In adjudicating the merits of these appeals, the standard of review is clear. "'An Act of [the General] Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution.'" Daly v. Hemphill, 411 Pa. 263, 271, 191

[ 458 Pa. Page 484]

A.2d 835, 840 (1963); see also Absentee Ballots Case, 431 Pa. 178, 181-82, 245 A.2d 265, 267 (1968). The ...


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