265 Pa. 328 | Pa. | 1919
Opinion by
At the election held November 6, 1917, Louis D. Vesneski was elected burgess of Dickson City Borough for a term of four years beginning the first Monday of January, 1918, at which date he duly qualified and entered on the duties of his office. Written charges having been preferred against him, alleging neglect of duty, habitual drunkenness and bribery, the borough council adopted a resolution requiring him to show cause why he should not be removed from his office. He filed an answer denying the charges and also the jurisdiction of the council, but refused to appear personally. It tried him, adjudged him guilty, and by resolution declared “the said Louis D. Vesneski is now removed from the office and duties of the office of burgess of Dickson City Borough, Pennsyl
This conclusion was based upon early English cases, which have been followed by some of the courts of this country, — generally, if not always, by way of obiter dicta, —and has been approved in various text-books, as applicable in states where the common council “exercises all the corporate powers and functions.” With us, however, éven if we assume the existence of such incidental right in the corporation itself, it would not aid appellees, for a borough council does not “exercise all the corporate powers and functions” of the borough.
By Chapter 5, Article I, Section 2 of the General Borough Act of May 14, 1915, P. L. 312, it is provided “the powers of the borough shall be vested in the corporate officers” included among which, under chapter 8, article I, are also the burgess, the high constable and the auditors or controller, and there is nothing elsewhere in the statute qualifying that enactment, or showing an intention to vest the corporate powers in the common council alone. Appellees’ only other suggestion that a power of
Nor is there any such incidental right in the borough itself. With us municipalities have no powers save such as are expressly conferred by statute, or are reasonably to be implied from the powers actually granted. In Wimer v. Worth Township, 104 Pa. 317, 320, we said: “An act done by a municipal corporation in an attempt to exercise power not possessed by it, is void. There is no distinction in reason between the cases of entire absence of enactment conferring power, and a prohibition of its exercise beyond a certain limit. In one case it is not granted, in the other it is expressly withheld, and in each there is a total absence of authority.” In Commonwealth v. Moir, 199 Pa. 534, 541, we said: “Municipalities are agents of the State, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed and the extent of their powers determined by the legislature, and subject to change, repeal, or total abolition at its will.” In McCormick v. Hanover Township, 246
There is, moreover, a fundamental reason antagonistic to the view taken by the court below. When the Constitution of the United States, the Constitution of this State, and the acts of assembly relative to municipalities, provided that the executive and legislative departments should be coordinate and independent branches óf government, each elected by and answerable to the people, and each bound by the provisions of the Constitution and the laws passed in pursuance thereof, all possibility of incidental powers existing in one department over the other, as distinguished from such as are expressed in or reasonably to be implied from such constitution or laws, at once necessarily ended, even if it properly existed under the English system of government. If this were not so, one of the coordinate branches of government could transcend the powers given to it by the instrument which created them both, the other would suffer an equivalent loss of power, and, instead of the two being coordinate, one would be dominant and the other servient to the extent of the alleged incidental power. As it is, the people are entitled to the services of the officer during the entire term for which they elected him (Lloyd v. Smith, 176 Pa. 213), unless he be removed in the way prescribed by the Constitution, if the officer is a constitutional officer (Bowman’s Case, 225 Pa. 364), or by the legislature or under its authority in the manner provided by Constitution or statute, if the officer is not a constitutional officer: Com. v. Weir, 165 Pa. 284, 288. If no
A recognition of this fundamental distinction between the two systems of government, explains the fact that when this court (3 Binney 533 et seq.), in compliance with the requirements of the Act of April 7, 1807, P. L. 163, reported to the legislature the various British statutes in force in this Commonwealth, none of those so reported had any relation to the political subdivisions of the State or to any of the officers thereof; and this applies also to all the other British statutes, from time to time held applicable notwithstanding the changed conditions arising out of our independence. And it explains also why a legislative power of amotion of the executive, though it may be incident in the English system of government, has never found place in this Commonwealth, save in the manner and to the extent constitutionally provided.
The municipalities of the State are not remediless, however, if important reasons exist why their executives should be removed, for by Article YI, Section 4 of the Constitution, it is provided 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 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.” That section applies to municipal officers: Houseman v. Com., 100 Pa. 222, 229; Richie v. Phila., 225 Pa. 511,
The only case in this State which seems to antagonize the views above expressed, is Evans v. Phila. Club, 50 Pa. 107, 117, where it is said: “The power of amotion for adequate cause, is an inherent incident of all corporations, whether municipal or private, except, perhaps, such as are literary or eleemosynary.” Inasmuch, however, as the question then before the court related solely to the expulsion of a member of a private corporation, the statement is obiter dictum, so far as it relates to the amotion of officers of municipal corporations; and as the decision at nisi prius was affirmed by an equally divided court, in any event it “is not a decree or judgment of this court, in support of which the rule of stare decisis can be successfully invoked”: Oriel’s Est., 171 Pa. 412, 416.
The judgment of the court below is reversed, and the record is remitted to the court below with directions to enter judgment for plaintiffs and to issue a writ of peremptory mandamus as prayed for.
