167 A. 309 | Pa. | 1933
Argued May 26, 1933. We have here a proceeding to try respondent's title to the office of member of the Public Service Commission of the Commonwealth, arising upon a writ of quo warranto issued out of this court under its original jurisdiction.
A vacancy having occurred on the Public Service Commission in the summer of 1932, the governor, on September 21st of that year, appointed respondent, Clyde L. King, "to serve, subject to the approval of the senate, when convened, for the residue of the term ending the first day of July, A.D. one thousand nine hundred thirty-seven." The next session of the legislature convened January 3, 1933, and on that day the governor submitted to the senate for its approval the names of five persons whom he had appointed as members of the commission, including that of respondent. On May 6, 1933, the senate adjourned without having approved or rejected the appointment of respondent to membership on the commission. On May 12, 1933, the attorney general filed his suggestion for writ of quo warranto to test respondent's title to the office, averring that, although respondent is not now a member of the commission, he "unlawfully intrudes himself into the said commission and usurps the same contrary to law."
The issue between the parties is whether, under the provisions of the Public Service Company Law of 1913, *414 P. L. 1374, a recess appointment to the commission must be acted upon by the senate at its next session. Section 3, of article IV, of the Act of 1913, supra, provides as follows: "When a vacancy shall occur in the office of any commissioner, a commissioner shall, in the manner aforesaid, be appointed for the residue of the term. If the senate shall not be in session when this act is approved, or when any vacancy occurs, the original appointments, or any appointment made by the governor to fill a vacancy, shall be subject to the approval of the senate when convened. . . . . . ." The learned attorney general contends that the words "when convened" necessarily mean whennext convened, and that the appointment becomes nugatory from and after the final adjournment of the senate if not approved by that body. The position of respondent is that the appointment is valid until disapproved by the senate, and, in the words of counsels' brief, that "there is no obligation upon the senate to act at any particular session."
In support of his argument, respondent asserts that the issue here presented was decided in his favor by Com. ex rel. v. Stewart,
The vital point which distinguishes the Stewart Case from the one now before us is that, in the former case, although the senate adjourned in 1925 without acting upon the first appointment made November 10, 1923, the governor immediately reappointed the same individual, on May 4, 1925, for a term to extend "until the end of the next session of the senate." When the senate convened in special session in 1926, there was, therefore, a recess appointment pending for its consideration.
To adopt respondent's contention that the approval of the senate may be given "at any time during the term of the appointment which has been made by the governor," is to delete from the statute the words "when convened," a process which is contrary to the settled rule of statutory construction that we must "so construe the act as to give effect to all of the words": McCarl v. Houston Boro.,
The demurrer of defendant is overruled and judgment is hereby given against defendant, ousting him from the office of member of the Public Service Commission of the Commonwealth of Pennsylvania, and it is further ordered that he pay the costs of these proceedings.