Pennsylvania Advisory Opinions March 26, 1895: AGO 15

Advisory Opinion Text

RE.CORDER OF DEEDS OF PHILADELPHIA-POWER OF EXECUTIVE TO REMOVE THE INCUMBENT HOLDING BY APPOINTMENT OF A FC1RMER EXECUTIVE.

Section 8 of article IV. Section 4 of article VI. Section 1 of article XIV of Constitution. Act of 15 May, 1874.

The clause in the Constitution. giving the power to the Executive to remove ·"appointed officers" means officers holding offices that are appointed in character and not elective.

An appointee to the office of recorder of deeds at Philadelphia, to fill a vacancy caused by death. cannot be disturbed in his office except for reasonable cause, after due notice and after hearing on the address of two-thirds of the Senate.

OFFICE OF THE ATTORNEY GENERAL

DANIEL H . HASTINGS, Governor:

Sir: I am in receipt of your communication dated March 8, 1895, inquiring as to the power of the Executive to remove the present incumbent of the office of the recorder of deeds of the city of Philadelphia, and in reply thereto I beg leave to submit the following as my views upon this subject:

John J. Curley, who now holds the office of recorder of deeds of the city of Philadelphia, was appointed by Governor Pattison, on the 29th day of September, 1894, and was commissioned to hold the office from that date until the first Monday of January, 1890. The appointment was made to fill a vacancy caused by the death of the officer elected by the people at the November election, 1893. The authority for such appointment is found in section 8 of article IV of the Constitution, which reads as follows:

"He (the Governor) shall have power to fill any vacancy that may happen during- the recess of the Senate in the office of the Auditor General, State Treasurer, Secretary of Internal Affairs or Superintendent of Public Instruction, in a judicial office, or in any other elective office which he is, or may be authorized to fill: if the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy, but in any such case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three (3) calendar months immediately preceding such election, in which case the election of said office shall be held at the second succeeding general election."

It will be seen that the vacancy occurred less than three months before the general election in 1894; hence the appointee was commissioned to serve until the first Monday of January, 1896, at which time the person elected by the people at the general election in 1895 will be entitled to the office.

The question is: Has the Executive the power to create a vacancy by the removal of the present incumbent and fill such vacancy by appointment until the first Monday of January, 1896?

The power given the Executive to remove officers is contained in section 4, article VI of the Constitution, and reads as follows:

"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. All officers elected by the people except Governor, Lieutenant Governor, members of the General Assembly and judges of the courts of record learned in the law, shall be removed by the Governor for reasonable cause, after due notice and full hearing on the address of two-thirds of the Senate."

It will be observed that under the section last above quoted, appointed officers, except judges and Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed. If John J. Curley is "an appointed officer" within the meaning of the Constitution, there can be no doubt that full power is vested in the Executive to remove him. If he is not such "appointed officer," but is an officer "elected by the people," although filling the office ad interim by appointment, then he can only be removed by the Governor for reasonable cause on the address of two-thirds of the Senate.

I am not aware that this exact question has ever received judicial determination. By section 8 of article IV, above cited, the Governor is given power to fill any vacancy in any "elective office which he is, or may be, authorized to fill," and the same section provides "But in any such case of vacancy in an elective office a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election."

By act of Assembly, approved May 15, 1874 (P. L. 205), it is provided that "In case of a vacancy happening by death, resignation or otherwise, in any office created by the Constitution or laws of this Commonwealth, and where provision is not already made by said Constitution and laws to fill said vacancy, it shall be the duty of the Governor to appoint a suitable person to fill such office, who shall be confirmed by the Senate if in session, and who shall continue therein and discharge the duties thereof till the first Monday of January next succeeding the first general election which shall occur three or more months after the happening of such vacancy." This act of Assembly was evidently passed for the purpose of authorizing the Governor to fill vacancies in offices where provision was not already made by the Constitution or laws to fill such vacancies and expressly provides that the person so appointed to such office "Shall continue therein and discharge the duties thereof, until the first Monday of January next succeeding the first general election which shall occur three or more months after the happening of such vacancy." This act, by its very terms, refers only to elective officers, and, while it cannot, of course, control any constitutional power given to the Executive relating to removals from office, yet it would appear to be at least a very clear expression of the understanding the General Assembly had of the Constitution of 1874, immediately after its adoption. The officer appointed to fill a vacancy, they declare, shall continue in office and discharge the duties thereof until his successor is duly elected.

The officers provided by the Constitution and the laws are either appointive or elective; as to the former-except those specifically excepted-there can be no doubt of the Governor's power to remove; as to the latter-excepting those as to whom specific provision is made- they can be removed only on the address of two-thirds of the Senate. Does the present incumbent of the office of recorder of deeds of the city of Philadelphia become an "appointed officer," within the meaning of the Constitution, because he was appointed to fill a vacancy in an elective office?

By section 1 of article XIV of the Constitution "County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, etc.," and by section 2 of the same article these county officers are required to be elected at the general elections and hold their offices for three years, beginning on the first Monday of January next after their election and until their successors be duly qualified. The same section provides that "All vacancies (in these offices) not otherwise provided for, shall be filled in such manner as may be provided by law."

In the case of Commonwealth v. King , 85 Pa., 103, it is held that "The right of appointment of the Governor to fill a vacancy in a county office, under the eighth section of the fourth article of the Constitution, extends only to the period between the death, resignation or removal of the incumbent, and the beginning of the new term by regular succession." The commission issued by Governor Pattison to John J. Curley extends to the first Monday of January, 1896. If the office had become vacant by death, or otherwise, in the last year of the term of the incumbent, even if such vacancy occurred less than three months before the general election, the appointee of the Governor could have held the office only until the beginning of the new term by regular succession, as was held in Commonwealth v. King, above cited. But in the case under consideration, the vacancy having occurred in the first year of the term to which the officer was elected, and less than three months before the general election of 1894, that provision of the Constitution becomes operative which extends the term of the appointee to the first Monday of January succeeding the second general election occurring after the vacancy.

Some light is thrown upon this question by the case of Commonwealth v. Waller, 145 Pa., 257, in which the Supreme Court use the following language:

"It will be noticed, however, that there are two classes of vacancies to be filled by appointment by the Governor, viz: those that relate to elective offices, and those that are non-elective. In the former, the Governor can only fill a vacancy until such time as the people can ,fill it by an election, as provided by law. Hence the commission of the Governor can run no further. In the other case, non-elective offices, no time is designated during which his appointee can hold, except the single provision that, if a vacancy shall occur during the recess of the Senate, he shall be commissioned until the expiration of the next session."

My attention has been called to the case of Lane v. The Commonwealth, 103 Pa., 481, as an authority which would justify the removal of the incumbent of this office, and it has received careful examination at my hands. In that case David H. Lane was appointed by Governor Hoyt to the office of recorder of the city of Philadelphia on January 30, 1879. He entered upon his duties and continued to discharge them until February 1, 1883, when he was removed by Governor Pattison. The power of the Governor to remove him was denied by Mr. Lane, and quo warranto proceedings were commenced by the Attorney General before Judge Pinletter, who gave judgment in favor of the Commonwealth. The defendant took a writ of error to the Supreme Court and the decision of the court below was affirmed; the court holding that there was a clear constitutional right of removal vested in the Governor. The case of Lane, however, is not an authority in the matter now under consideration, for the reason that the office of recorder of the city of Philadelphia-the office to which Mr. Lane had been appointed-was one that was non-elective. The Governor, by the terms of the act creating the office (act of 18th April, 1878, P. L. 26), had the power to appoint by and with the advice and consent of the Senate for the term of ten years, and no right of election by the people was given by the-statute. The office of recorder of the city of Philadelphia, created by the act of 1878, was widely different from the office of recorder of deeds. The former had none of the duties of recorder of deeds assigned to it, was purely a statutory office, and the incumbent held the office by appointment only. It came directly within that provision of the Constitution which gives the Governor the power to remove where he has power to appoint.

It has been suggested that the language of section 4 of article VI of the Constitution, inferentially confers the power upon the Executive to remove the appointee to an elective office. The language referred to, and already quoted, is as follows: "Appointed officers, other than judges of 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." The argument is made that the phrase "other than judges of courts of record" necessarily implies that all other appointees to elective offices are removable by the power appointing them, because the office of judge of a court of record is elective and not appointive. I am persuaded, however, that, although it may be difficult to give force and meaning to the phrase excepting judges from the power of removal in connection with the phrase "appointed officers," the power of removal is not thereby necessarily given in the case of appointees to all other elective offices. By reference to the Constitutional Convention Debates it would seem that the phrase "other than judges of courts of record" appeared in this article of the Constitution, and was discussed at a time when it was in contemplation by the judiciary committee of the convention to make judges appointive and not elective. Mr. Bid-die, a delegate, in discussing this, said, Vol. 3, page 233: "If, when our labors come ultimately to be reconsidered and revised, there is no occasion for it (the phrase above referred to) it may be left out. But there is a propriety in having it here now, and I trust that the committee will adopt it." And again, at a later stage of the convention proceedings (Vol. 5, page 374), Mr. Dallas, a delegate, in speaking of the phrase "other than judges of courts of record," uses the following language: "I assume that, as the only article we have reported on the subject of the judiciary provides exclusively for the election of judges, this clause, which relates to their appointment, should be stricken from the section." The article was, subsequently, referred to the committee on revision and adjustment, and whether the phrase was retained in the article unnecessarily or by inadvertence, I, of course, do not undertake to say. It seems, however, to be a wholly unnecessary provision, because section 15 of article V, provides that judges may be removed by the Governor on the address of two-thirds of each house of the General Assembly "for any reasonable cause which shall not be sufficient ground for impeachment."

To hold that there exists in the Executive the right to remove the appointee to an elective office might lead to an intolerable abuse of power, and result in great detriment to the public service. That section of the Constitution which confers upon the Governor the power to appoint to the vacancy in the office of recorder of deeds, confers also the power to fill vacancies in the office of Auditor General, State Treasurer, Secretary of Internal Affairs, and all other elective offices which he may he authorized by law to fill. If the power to remove exists, it must of necessity be a continuing power, not limited to one removal and one appointment to the same office, but successive removals and appointments could be made at the pleasure of the Executive, limited only by the time fixed by the Constitution for an election by the people. Extend this reasoning to the greater offices of Auditor General and State Treasurer, as to which the Governor has precisely the same power, and we see such possibilities as could not have been contemplated by the makers of the Constitution. I may be permitted to add that an examination of the records in the State department discloses no instances where the Executive has ever exercised this power or claimed the right to exercise it.

I reach the conclusion that the Executive has no power to remove John J. Curley, recorder of deeds for the city of Philadelphia, because it is an elective office, and because I am of the opinion that that clause of the Constitution, giving the power to the Governor to remove "appointed officers," means officers holding offices that are appointive in character and not elective. I am of the opinion, further, that the Constitution and the act of 1874, which I think not in conflict with the Constitution, fix the term of the appointee of Governor Pattison to the office, viz: until the first Monday of January, 1896, and that he cannot be disturbed in his office except "for reasonable cause, after due notice and after hearing on the address of two-thirds of the Senate."

HENBY C. McCORMICK, Attorney General.