Robert P. Kane, Atty. Gen., Lawrence Silver, Howard M. Snyder, Deputy Attys. Gen., Harrisburg, for petitioner.
Thomas A. Beckley, William J. Madden, Jr., Harrisburg, for respondent.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion in which Jones, C. J., and O'Brien, J., joined.
This is an original action in quo warrantor filed by the Attorney General of the Commonwealth of Pennsylvania. The action was commenced by the filing of a Suggestion for a Writ of Quo Warrantor; this, in effect, was a complaint. See Rule 1111 Pa.R.C.P. The Suggestion alleged that the defendant, Alex J. McKechnie, Jr., was occupying the office of a member of the State Dental Council and Examining Board (Board). The Attorney General
sought to remove the defendant from that office. The defendant filed what was termed a "Motion to Quash the Suggestion." In effect, this was a preliminary objection in the nature of a demurrer to the complaint. See Rule 1111 Pa.R.C.P. Defendant's preliminary objection was denied. Defendant thereafter filed an answer and new matter. After the pleadings were closed, the plaintiff moved for judgment on the pleadings. Oral arguments were heard.
The pleadings reveal no factual disputes between the parties. Pursuant to the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, art. IV, Sec. 414, 71 P.S. § 124, the defendant became a member of the Board following his election by the members of the Pennsylvania State Dental Society as president of that organization. The Administrative Code provides, in pertinent part, that:
"The State Dental Council and Examining Board shall consist of the president of the Pennsylvania State Dental Society [and eight other members]. . . ."
We conclude that this matter is controlled by Hetherington v. McHale, 458 Pa. 479, 481, 329 A.2d 250, 251 (1974), in which we held a similar statute unconstitutional because ". . . the power to appoint persons to conduct governmental functions cannot be delegated to private organizations. . . ."
The defendant seeks to distinguish Hetherington because in that case the governmental committee had the authority to expend large sums of money whereas in this case the only funds "expended by [the Board] are the funds appropriated for the [Board's] own operating budget." The amount of money expended by the governmental agency, however, was not the controlling factor in Hetherington. Whether one dollar or one million dollars of ...