133 A. 133 | Pa. | 1926
The third class School District of Georges Township, Fayette County, is managed by a duly elected board of directors. On October 21, 1924, thirty-one taxpayers presented a petition to the court of common pleas, asking for the removal of the entire body because of neglect and refusal to perform the duties imposed upon them by law, the application being based on section 217 of the School Code: Act May 18, 1911 article II. It was averred that money had been unlawfully borrowed, supplies purchased without advertisement, as required by law, a failure to properly keep the district's records, *131 provide an annual budget, to comply with the legal requirements as to the issuance of orders for payment of money, and the appointing in turn of members of the board as paid officers at excessive and unlawful compensation. The testimony taken before the court below shows the forbidden acts to have begun as early as 1914, continuing until the time of the institution of this proceeding. Though the evidence has not been printed, the opinion of the court clearly discloses such gross wrongdoing as to justify the removal of the entire board. By the order finally entered, two members were permitted to continue in service, because of their recent assumption of official duties, relieving them, in the opinion of the trial judge, from responsibility for the misfeasances clearly shown as to the others. From the decree entered, an appeal has been taken, raising, in the two assignments of error filed, but one question, viz, Whether the Act of 1911, as to section 217, is unconstitutional, and the proceedings, therefore, void.
It will be noticed first that early provision was made for the removal of school directors for failure to perform duties legally imposed (Act April 12, 1838, section 11; Act March 7, 1840, sections 33 and 36), and the directors themselves were permitted, in certain cases, to declare the seats of elected members vacant: Felton v. Com., 8 W. S. 267. A similar provision covering the case where the board failed to organize is found in the Act of April 22, 1863, P. L. 523, and, later, by application to the court of common pleas, where suitable accommodations had not been provided, or the health and morals of the school children not protected: Acts of June 6, 1893, P. L. 330, and June 6, 1893, P. L. 339. A general codification of the school laws was made by the Act of May 8, 1854, P. L. 617. Section 8 provided that seats of elected members, who fail to attend regular meetings, could be declared vacant by the other directors, and, section 9, that all may be removed by the court of quarter sessions upon petition of six taxable *132 citizens of the district who furnish proof that the board has been derelict in keeping the schools in operation, in so far as the means of the district will permit, or where it shall appear that they "neglect or refuse to perform any other duty enjoined by law." The School Code of 1911, already referred to, has practically the same regulation, but making the court of common pleas the tribunal to pass upon the question, and requiring, further, that the petition be signed by ten taxpayers. The effectiveness of this legislation is now challenged on the ground that the Constitution of the State, passed in 1873, worked such change as to make impossible the application of the former removal statutes, as well as to prevent the enforcement of those passed thereafter, which were in conflict with the provisions found therein directing the manner of deposing public officers.
Article VI, section 4, directs that "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 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 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 is insisted that, since school directors are elective officers, they cannot be removed, unless convicted of some misbehavior or crime, and except in the manner provided in the recited section. If this be true, then the procedure set forth in the constitutional article referred to must be followed, notwithstanding the delay which would follow such formal proceeding, though the "crime, imbecility or gross neglect of duty may demand that an officer shall be removed at once": Lane v. Com.,
Again, it is to be noted that, in so far as appointive officers are concerned, there is the right, under the provision cited, on the part of the one selecting to remove at his own pleasure (contrary to the rule theretofore in force, Field v. Com.,
It embraces all public officers who are elected by the people and exercise some function of the government (Com. v. Reid,
Nevertheless on a different ground we reach the same conclusion. Prior to the Constitution, the Act of 1854, above referred to, and later legislation, regulated the manner and causes of removal in the case of school directors. They were not named specifically as officers in the Constitution of 1873, nor in the earlier ones, though we find in each of them provisions for the establishment of schools. The former directs that: "The general assembly shall provide for the maintenance and support *135 of a thorough and efficient system of public schools, wherein all the children of the Commonwealth, above the age of six years, may be educated": article VII, section 1. The system already in force was recognized, and it does not follow that new provisions, in the nature of limitations upon the power of the legislature, destroy previous legislation inconsistent with them, for the new regulations apply merely as a restriction for the future: White on the Constitution, page 23. "In judging what [the Constitution] means, we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes": Cooley on Constitutional Limitations, 7th ed., 94. "Subsequent constitutions have never been construed as abolishing old systems and establishing new, but rather in the light of amendments of existing law. This being so, the Constitution is not to be construed as an abrogation of existing laws, unless the intent is too clear to be mistaken, but, like amendments to the statute law, is deemed to be operative only for the future": White on the Constitution, 21.
In passing upon the present case, it must be remembered that school directors were elected public officers, recognized as agents of the State, when the Constitution was adopted. In the absence of the existence of a system, necessarily in the mind of its framers, it would be held that they came within the express terms of article VI, section 4, and that any act subsequently passed, providing a conflicting method of removal, was legally prohibited. But we must remember that the earlier legislation furnished a different manner of procedure in such cases, and it, or modifying acts of assembly passed since 1873, will still be effective, unless the attempt is made to depart from the provisions as then existing. It may be noted that this court has frequently affirmed orders of the court of quarter sessions or common pleas removing *136
school directors, as provided by various acts of assembly, though in none of the cases referred to was the question of constitutionality raised: Bloomsburg School Directors' App.,
The school district was recognized by the Constitution, in express terms, as an agent of the Commonwealth: Ford v. School Dist.,
The order and decree of the court below is affirmed at the cost of appellants.