149 A. 176 | Pa. | 1930
Argued January 6, 1930.
During the term for which he was elected, Joseph Cauffiel, the mayor of the City of Johnstown, was indicted, tried and convicted, inter alia, of misbehavior in office, and a part of his sentence was that he "shall be and is hereby removed from the office of mayor of the City of Johnstown." On appeal, this sentence was affirmed by the Superior Court (
Immediately before his actual incarceration, Cauffiel gave written notice to the treasurer of the city not to *278 pay any warrants drawn upon the funds of the city, unless they were signed by him. The law expressly provides that all such warrants must be signed by the mayor, if there is one available for the purpose, and, if not, by the superintendent of accounts and finance of the city, who is declared by section 1 of the Act of April 6, 1917, P. L. 52, 54, to be the acting mayor, whenever there arises a "vacancy in the office of mayor by death, resignation or otherwise."
Warrants for wages due the employees of the city were duly signed by all the required public officials, including the acting mayor, but not by Cauffiel; the treasurer refused to honor them because of a fear that he might be made personally responsible for any payments made by him. The Commonwealth, at the relation of the attorney general, then applied for a writ of peremptory mandamus to compel him to act. This was the appropriate remedy: Muir v. Madden,
Both base their entire argument on section 4 of article VI of the state Constitution which provides as follows: "All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. 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 *279 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." Under this section the two appellants first contend that the sweeping language of the last sentence — "all officers elected by the people . . . . . . shall be removed by the governor," etc., etc., — means that "officers elected by the people" shall not be removed in any other way. To this we do not assent. If it were so, then neither impeachment nor quo warranto would be available, though the former is expressly provided for in the immediately preceding section of the same article of the Constitution, and it was admitted, at bar, that the latter was an available remedy in cases like the present.
The two appellants next contend that, in any event, we should hold that the constitutional provision is not self-executing, and hence, since the legislature has not acted, Cauffiel was not legally removed by the sentence of the court. To this also we do not agree. To so hold, would be to add to the "shall be removed" a provision in effect saying, "if the legislature provides a method for accomplishing that purpose, and if also the legislative mandate is carried into effect by the authority named by it." The word "shall" cannot be so minimized, and no authority has been found which suggests that it should be.
In Houseman et al. v. Commonwealth,
It would seem clear, also, that the able lawyers who composed, in large part, the Constitutional Convention of 1873, must have looked at the matter in exactly the same way. A careful reading of the debates in the convention shows that this part of the section was very little considered, probably because, as will be later pointed out, it is derived from the Constitution of 1838; but it was repeatedly said that the convention was "trying to provide a speedy remedy for the removal of incompetent men": 5 Convention Debates 373; 8 Conv. Deb. 124. Moreover, every lawyer in the convention knew that in practically all our crimes acts similar language appeared. These statutes, after defining the crime, say that the defendant "on conviction" shall be fined and/or imprisoned, the penalty being imposed by the court before whom the defendant was convicted. Naturally they would expect, therefore, as every one else would, that the constitutional provision providing for a specified punishment "on conviction" would be interpreted *281 in exactly the same way, — the court on conviction "shall" impose the specified punishment. Especially is this true since the Constitution by article V vested all the Commonwealth's judicial power in the courts, and the punishment to be imposed "on conviction" had been imposed by the courts from the earliest days of the common law; a practice, so far as we are aware, which has never been departed from except where arbitrary power was given to or usurped by some one connected with the executive branch of government.
No case has been pointed out to us, nor have we found one, in which the exact question under consideration has been decided by this court. As we have already said, this part of article VI, section 4, is derived from the Constitution of 1838, which provides in article VI, section 9, that "All officers for a term of years shall hold their offices for the terms respectively specified, only on the condition that they so long behave themselves well; and shall be removed on conviction of misbehavior in office or of any infamous crime." This court does not seem to have been required, even under that section, to determine the exact point now being considered but in Com. v. Shaver, 3 W. S. 338, 340, we said: "It is very clear that sheriffs, as well as all other officers holding their respective offices for a term of years only, are embraced within this provision of the Constitution, so that the respondent, though duly elected and commissioned to the office of sheriff, cannot claim to hold it after he has been convicted of misbehavior in it, or of any infamous crime." In Com. v. Harris, 1 Legal Gazette Reports 455 (1871), it was squarely determined, however. It was there said: "This section of the Constitution was before the Supreme Court of our state, in Commonwealth v. Shaver, 3 W. S. 338. In that case, KENNEDY, J., who delivered the opinion of the court, remarked as follows: 'The point to be decided in this case arises out of the 9th section of the 6th article of the Constitution of this state, which is in the following *282 words.' The judge then quotes the above article and continues: 'It is very clear that sheriffs, as well as all other officers holding their respective offices for a term of years only, are embraced within this provision of the Constitution, so that the respondent, though duly elected and commissioned to the office of sheriff, cannot claim to hold it after he has been convicted of misbehavior in it, or any infamous crime. From the foregoing provision of the Constitution, and the adjudication of the Supreme Court of our state, it is very clear that the conviction of defendant of misbehavior in office requires his removal from the office of county commissioner, and that the court shall adjudge that he be removed from office.' "
Our records disclose that that case never reached this court, but, in our judgment, it correctly interprets the Constitution. True, in Com. ex rel. v. Sanderson, 1 Pa. Dist. R. 714, 718, doubts are expressed as to the conclusion reached in it, and it is suggested that in some cases, as, for instance, where an incumbent is convicted of an infamous crime not connected with the office he holds, legislation may be needed to carry the constitutional provision into effect. That opinion is quoted and followed in Bowman's Case, 18 Pa. Dist. R. 326, but this was revised in Bowman's Case,
In an attempt to buttress their contention, the two appellants refer to general language appearing in certain of our opinions, which they seek to make available here, although the facts in those cases and the point *283
there involved, have no relation whatever to the present situation. We have many times said that the language used by us cannot thus be made applicable to facts essentially different from those being considered when the opinions were rendered: Com. v. Budd Wheel Co.,
Upon the point now being considered we are clear, therefore, that the penalty of removal was constitutionally imposed as a necessary result of the conviction, and hence was properly included in the sentence by the court before which the conviction was had.
The judgment of the court below is affirmed. *284