5 Pa. Commw. 275 | Pa. Commw. Ct. | 1972
Opinion by
This case comes within the original jurisdiction of this Court. Suit was commenced by the filing of a Complaint, captioned as an action in both “Quo Warranto”
Crisconi filed the above mentioned Complaint, naming as defendants, the Governor, Simpson and the Chairman of the Authority. The Complaint demanded that the Governor be enjoined from terminating the
. Accepting as true and correct all of the well-pleaded allegations of fact of the Complaint as we must, McIlvaine v. State Police, 3 Pa. Commonwealth Ct. 478, A. 2d (1971) and Commonwealth v. Toro Dev. Co., et al., 2 Pa. Commonwealth Ct. 429, A. 2d (1971), nevertheless we will hold herein that the appointment of Simpson and the termination of Crisconi were proper under the Constitution of Pennsylvania and the Compact and therefore the Preliminary Objections of the defendants must be sustained.
The provisions of the Compact pertinent to the issues herein “have the force and effect of a statute of the Commonwealth of Pennsylvania” (Act of June 12, 1931, P. L. 575, Section 2, 36 P.S. 3504) and provide:
“Six of the eight commissioners for the Commonwealth of Pennsylvania shall be appointed by the Governor of Pennsylvania for terms of five years. The Auditor General and the State Treasurer of said Com
“All commissioners shall continue to hold office after the expiration of the terms for which they are appointed or elected until their respective successors are appointed and qualify, but no period during which any commissioner shall hold over shall be deemed to be an extension of his term of office for the purpose of computing the date on which his successor’s term expires.” (35 P.S. 3503, Article II)
The pertinent provisions of the Pennsylvania Constitution relating to the Governor’s power to appoint are found in Article IY, Section 8, which reads as follows :
“(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction
“(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session and fill vacancies happening in the office of Auditor General or State Treasurer or in any other elective office he is authorized to fill. If the vacancy happens during the session of the Senate except as otherwise
“(c) In acting on executive nominations, the Senate shall sit with open doors. The votes shall be taken by yeas and nays and shall be entered on the journal.”
In attempting to properly construe Article IV, Section 8, we look to the prior constitutional provisions under the Constitution of 1874, which provided, inter alia, that the Governor: “. . . shall nominate and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint . . . such other officers of the Commonwealth as he is or may be authorized by the Constitution or by law to appoint; . . .” (Article IV, Section 8, 1874 Constitution)
It is clear to us that the adoption of Article IY, Section 8, as it presently reads, was for the purpose of eliminating the previously required senatorial approval of appointments by the Governor to all appointive offices to which the Governor could appoint under the Constitution or by statute. Senatorial approval is now necessary only in those instances where senatorial approval is specifically mandated by the Constitution or by statute.
A reading of the Compact indicates the existence of a distinction between the appointment procedures of the Commissioners utilized by the Commonwealth of Pennsylvania on the one hand and those utilized by the State of New Jersey on the other hand. The Compact indicates specifically the need for consent and approval
In view of the fact that we have ruled that the appointment of Simpson did not require the consent of the Pennsylvania Senate and therefore was a valid appointment it is not necessary for us to rule on the remaining issues, i.e., the standing of Crisconi to sue, and the effectiveness of the notice of termination.
The only remaining point to be touched upon is the argument of Crisconi that the Administrative Code, Act of April 9, 1929, P. L. 177, Section 207, 71 P.S. 67, sets forth a specific requirement for the Governor to submit nominations for appointive offices to independent commissions to the Senate for its consent. That section in pertinent part reads as follows: “The Governor shall nominate and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint: (a) The Secretary of the Commonwealth, the Attorney General, . . .
Because of the importance of the question presented to us, a search of the law was made to attempt further to determine the legislative intent. We analyzed the legislative language used in statutes creating other boards, commissions and agencies. As already noted, the Administrative Code, supra, in Section 201, 71 P.S. 61, specifically sets forth five (noted above) independent administrative boards and commissions. Appointment to these Avould require senatorial approval. The
1. Atlantic Marine Fisheries Commission (30 P.S. 412)
2. Ohio River Yalley Sanitation Commission (32 P.S. 816.2)
3. Great Lakes Commission (32 P.S. 817.2)
4. Delaware Yalley Regional Planning Commission (73 P.S. 701)
Our search of Pennsylvania statutes disclosed additional agencies which are not included within the Administrative Code, supra, in which there are specific provisions in the statutes requiring Senate confirmation. These áre:
1. Advisory Committee on Probation (61 P.S. §331.16a)
2. Air Pollution Commission (35 P.S. §4005(a))
3. Commonwealth Trustees, Temple University of the Commonwealth System of Higher Education (24 P.S. §2510-4)
4. Commonwealth Trustees, University of Pittsburgh — of the Commonwealth System of Higher Education (24 P.S. §2510-204)
5. Milk Marketing Board (31 P.S. 700j-201)
6. . Minor Judiciary Education Board (42 P.S. §1213)
8. Pennsylvania Council on the Arts (71 P.S. §1530.1) .
9. Pennsylvania Drug, Device and Cosmetic Board (35 P.S. §780-19)
10. Pennsylvania Human Relations Commission (43 P.S. §956)
11. Pennsylvania Industrial Development Authority (73 P.S. §304)
12. Pennsylvania Liquor Control Board (47 P.S. §2-201)
13. Pennsylvania Parkway Commission (36 P.S. §655.5)
14. Pennsylvania Public Television Network Commission (71 P.S. §1188.2)
15. Pennsylvania Turnpike Commission (36 P.S. §652d)
16. Renal Disease Advisory Board (35 P.S. §6204)
17. State Harness Racing Commission (15 P.S. §2601)
18. State Horse Racing Commission (15 P.S. §2651)
19. State Lottery Commission (72 P.S. 3761.4)
20. Weather Modification Board (3 P.S. §1103)
There are at least thirty agencies, not included in the Administrative Code, supra, in which the appointment of the members is not subject to any statutory requirement of Senate approval. They are as follows:
1. Advisory Board for Boating (55 P.S. §483.2)
2. Advisory Board (under Penna. Prevailing Wage Act) (43 P.S. §165-2.1)
3. Appeals Board (under Penna. Prevailing Wage Act) (43 P.S. §165-2.2)
4. Advisory Committee on Atomic Energy Development and Radiation Control (73 P.S. §1101)
6. Advisory Committee to State Board of Education (24 P.S. 7-735)
7. Advisory Council on Library Development (24 P.S. §4203)
8. Banking Board (71 P.S. §733-501)
9. Bicentennial Commission of Pennsylvania (71 P.S. §1047.13)
10. Board of Arbitration of Claims (72 P.S. §4651-1)
11. Brandywine Battlefield Park Commission (32 P.S. §1181)
12. Commission on Charitable Organizations (10 P.S. §160-5)
13. Delaware River Joint Toll Bridge Commission (36 P.S. §3272)
14. General State Authority (71 P.S. §1707.3)
15. Juvenile Court Judges’ Commission (11 P.S. §270-2)
16. Local Government Records Committee (53 P.S. §9005)
17. Municipal Employes’ Retirement Board (one member appointed by Governor) (53 P.S. §673)
18. Pennsylvania Higher Education Assistance Agency (24 P.S. §5103)
19. Pennsylvania Housing Agency (35 P.S. §1680. 202)
20. Pennsylvania Parent Assistance Authority (24 P.S. 5704)
21. Regional Air Pollution Control Associations (35 P.S. §4006)
22. Savings Association Board (15 P.S. §6403)
23. State Advisory Council (on unemployment compensation) (43 P.S. §764)
24. State Apprenticeship and Training Council (43 P.S. §90.3)
26. State Board of Vocational Rehabilitation (43 P.S. §681.2)
27. State Council of Civil Defense (71 P.S. §1689.3)
28. State Highway and Bridge Authority (36 P.S. §3603)
29. State Soil and Water Conservation Commission (3 P.S. §852)
30. State Tax Equalization Board (72 P.S. §4656.2)
In addition, we found three other interstate compacts under statutes where the appointment of Pennsylvania members was not subject to Senate approval. They are:
1. Interstate Commission for the Potomac (32 P.S. §741)
2. Interstate Compact Commission for Education (24 P.S. §5403)
3. Wheeling Creek Water Shed Protection and Flood Prevention Commission (32 P.S. 819.2)
The membership of the Susquehanna River Basin Commission consists of the Governor, or his designee, for each signatory State, and one member appointed by the President of the United States (32 P.S. 820.1). Therefore this last named commission is not relevant to the matters before the Court in this case.
It appears clear to us, then, that the General Assembly of Pennsylvania has for reasons of its own treated governmental agencies differently, and it must be presumed that when the General Assembly intends to make appointments by the Governor subject to the consent of the Pennsylvania Senate, the General Assembly clearly sets forth this requirement in the statute. In this case, we rule, as a matter of law, that under the provisions of Article IV, Section 8, of the Pennsylvania
In view of our holding that the Governor’s appointment of Simpson did not constitutionally require the consent of the Senate and was otherwise validly made, we
Order
And Now,, this 17th day of April, 1972, the Preliminary Objections of the defendants are hereby sustained, and it is ordered that the Complaint of John P. Crisconi is hereby dismissed.
We recognize that under our recent ruling in the case of Gernert v. Lindsay, el al., 2 Pa. Commonwealth Ct. 576, A. 2d
By the Act of July 23, 1969, P. L. 74, 71 P.S. 1037 et seq., the Superintendent of Public Instruction is now also known as the Secretary of Education.
This omitted portion provides for senatorial approval of appointments to offices collectively and generally known as the Governor’s cabinet. Subsections (b) and (c) of Section 207 cover departmental and advisory agencies respectively.
It Is significant that in the original Act of 1929 the Legislature set forth three agencies under a separate article heading “III. Organization of Independent Administrative Boards and Commissions.” Later, by amendment, the Historical and Museum Commission was added, and by virtue of another statute (71 P.S. 61) the State Civil Service Commission was included.
Appointments to these offices are covered - by the provisions of subsections (b) and (c) of Section 207 of the Act, supra, 71 P.S. 67.