Commonwealth ex rel. Lehman v. Sutherland , 3 Serg. & Rawle 145 ( 1817 )

Tilghman C. J.

Rule to shew cause why leave should not be given to file an information in nature of a quo warranto against Dr. Joel B. Sutherland,, at the relation of Dr. George F. Lehman, to inquire by what authority,, the said Joel B. Sutherland exercises the office of Lazaretto physician of the port of Philadelphia.

Dr. Sutherland has appeared by his counsel, and shewn' cause against the filing of an information, viz. that he exer-' cises the office, under a commission from the Governor of Pennsylvania, dated 1st May, 1816, whereby he was appointed to this office, to hold the same, “ until he should be removed'by the Governor, or other lawful authority.” It is admitted, that the Governor' appointed Dr. Lehman to the same office, by commission dated 14th March,1817. But it is contended, on the part of the defendant, that the Governor had no power to remove him, without the request of a majority of the members of the board of health, and that no such request had been made, when the commission issued to Dr. Lehman. This question will depend on the. constitution of the Commonwealth, and several acts of assembly respecting. the board of health.

By an act of assembly, passed 17th March, 1806, (originally made to continué five years, and from thence to the end of the next session, and no longer, but continued from time to time and still in force, except certain parts,) .a board of health, consisting of five members, to be appointed annually by the Governor, was incorporated. Attached to the board of health, were two physicians, to be als.o appointed by the Governor, one, called “ the Lazaretto Physician,” who was to reside at the Lazaretto; the other to reside in the city of Philadelphia, and called “ the Port Physicianand it is enacted* that these physicians “ shall be under the “ direction and controul of the board of health, and may “ be removed from office at the request of a majority of the « members of the board of health.” It was argued by the counsel for the relator, that by the constitution of the State, the Governor had a right to appoint to this office, and consequently to remove from it. Therefore, they suppose, it was not the intent of the act of assembly to deprive the Governor of his constitutional right. And they say, moreover, that whatever may be the construction of the act of 17th March, 1806, while the board of health remained constituted according to the provisions of that act, yet it cannot be supposed, that the Governor was intended to be restricted in his power of removal, after the appointment of the members of the board of health was taken away from him, as it was, by the act of 13th March last, whereby the act of 17th March, 1806, was continued.

By the . constitution of the Commonwealth, (art. 2. sect. 8.) it is provided, “ that the Governor shall appoint all officers, “ whose offices are established by this constitution, or shall be “ established by law, and whose appointments are not here- “ in otherwise provided for.” The constitution is silent as to the removal of officers, yet it has been generally supposed, that the power of removal rested with the Governor, except in those cases where the tenure, was during good behaviour. But it has never been ascertained, nor is it easy to ascertain, to what offices this power of appointment extends. I speak of offices created by law, since the making of the constitution. The word office, is of very vague and indefinite import. Every thing concerning the administration of justice, or the general interests of society, may be supposed to be within the meaning of the constitution, especially, if fees, or emoluments, are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term office, have not been thought to be embraced by the constitution. And when offices of that kind have been created, the legislature have sometimes made the appointment in the law which created them, sometimes given the appointment to others than the Governor, and sometimes given the power of removal to others, although the appointment was left to the Governor. The officers of whom I am speaking, are often described in acts of assembly, by the name of commissioners. Such, for instance, as are employed in the laying out of roads and canals, and other works of a public nature. Yet all these perform a duty, or in other words exercise an office. So likewise, officers within the limits of a corporation, are generally appointed by the corparation. unless they concern the administration of justice. In " , *> order to discover in what light this office of physician to the board of health has been viewed, I have traced the health laws from their origin, and am satisfied that it has been considered, and justly considered, as an office under the controul of the legislature, and subject to their modification, as to appointment, duration, and removal. The present system of health laws took its origin from the melancholy pestilence in the year 1793. The first law bears date the 22d April, 1794, and in all no less than eleven acts have been passed. The subject was new, and the first essays were found, by experience, to be very imperfect. The principal officers have undergone various changes, as to their names, their number, and their appointment. They were called, at first inspectors, then managers, and last the board of health. At first, they were unincorporated, afterwards incorporated. Their numbers were, first 24, then 12, afterwards S, and now 11. At first, they served gratuitously, afterwards with a salary, and now again they receive no compensation. Until the year 1803, they were elected by the mayor, or recorder and aldermen of Philadelphia, and justices of the peace of the Northern Liberties and district of Southwark. From 1803, to the present j ear, they were appointed by the Governor. At present, they are chosen, six by the select and common councils of Philadelphia; three by the commissioners of the Northern Liberties and Penn Township; and two by the commissioners of Southwark and Moyamensing. This body, or board, whether incorporated or not, were certainly, strictly speaking, officers, and yet, during the greater part of their time, they have not been appointed by the Governor. And they have always had under them, certain necessary, inferior, officers,- (I do not mean physicians,) whom they have appointed, and removed at pleasure. As to physicians, the immediate subject of inquiry, although, I believe, they have been uniformly appointed by the Governor, yet they have undergone great changes as to pay and removal. They have sometimes received fees, sometimes stated salaries, and sometimes both. They have been subject to removal, sometimes by the Board alone, and sometimes by the Governor, at the request of the Board. • Sometimes it was at the Governor’s option, whether to comply or not, with the request of the Board, and sometimes the request was compulsory. By the act of 23d September, 1794, a majority of a quorum of the board of inspectors, might suspend or remove, the resident and consulting physicians, and appoint others in their places. By the act of 4th April, 1798, when seven of the board of health complain of the physicians to the Governor, and specify the causes of complaint, the Governor shall remove them, unless the causes are manifestly frivolous and insufficient, and appoint others in their places. And by the act of the 1st April, 1803, which is exactly similar to that of the 17th March, 1806, they may be.removed by the Governor, at the request of a majority of the members of the board of health. Thus it appears clearly, that the office of physician has been considered, in point; of removal, as completely subject to the legislative power, and there can be no doubt of the intent of the legislature in the act of 1806 — when it is said, that the Governor may remove, at the request of a majority of the board, it is meant, that he shall not remove without their request.

But, it is yet to be inquired, for what period physicians, appointed under the law of 1806, held. It will be recollected, that that law was temporary, and has been continued, from time to time, by several acts. It appears to me, then, that an appointment, made in the year 1806, would have given to the officer a right, of which the Governor could not deprive him, without the request of a majority of the board of health, during the time for which that law was originally made to last, viz. five years, and from thence to the end of the next session. So, when the act of 1806 was continued for four years, by the act of 25th March, 1813, an appointment made, previous to the 25th March, 1817, vested an interest, which would endure till the 25th March, 1817, unless a majority of the board of health should request a removal. My reason for this construction is, that if the law, giving continuance to the prior temporary law, should, by implication, give continuance to the officer appointed under the fir t law, it would, In effect, amount to an appointment of the officer, during the period of the continuation ; and there is nothing in any part of the health system, which looks like an intent to take the appointment from the governor. There are particular reasons for this construction, when we consider the great fluctuations which have taken place in the manner of appointing the board of health. When Dr. Sutherland received his commission, the board consisted of five members,' appointed by the Governor. But, by the act which made the last continuation, an entire change took place. The board was to consist of eleven members, not appointed by the Governor. There is another reason for supposing, that the legislature intended a new appointment of physicians, at every new continuance. In the continuance laws, there is often a great alteration in the compensation of the physicians, greater than probably would have been made, unless there was to be a new appointment. Would not the Governor have been justified in giving to Dr. Sutherland a commission to hold until the 25th March, 1817, unless he should be sooner removed according to law ? It would seem to me, that such a commission would have been exactly in the spirit of the existing law. Upon these principles, the case will stand thus. Doctor Sutherland could not be removed without the request of the board of health, before the 25th March last. After that time, the Governor might make a new appointment. But the commission of Dr. Lehman bears date the 14th March last; at which time the Governor had not power to appoint him. Of consequence, he has shewn no right to the office ; and the information in nature of a quo warranto, being, in substance, a civil proceeding for the recovery of the office, it ought not to be granted at his relation. I am, therefore, of opinion, that the rule should be discharged.

Gibson J. concurred.

Duncan J.

This is an application for an information in the nature of a quo warranto, against Dr. Joel B. Sutherland, to shew by what authority he exercises the authority of Lazaretto physician. It is made on behalf of Dr. George F. LeMian, claiming the office, and complaining of the intrusion of Dr. Sutherland.

To trace the constitution of the board of health from its origin ; to notice the changes and variations which have been made from time to time by the legislature, as experience directed improvements, may not be without its use; for though many of the laws may have expired, or have been repealed, they are statutes in pari materia; to be taken into view, in forming an opinion on the new system established by act of 13th March, 1817, and now in operation.

The first establishment of a health office was by act of 22d April, 1794, 3 Dali. St. Laws, 553. A resident physician, consulting physician, and health officer, were to be appointed by the Governor; the inspectors of the health office, by the mayor or recorder and aldermen of the city, and the justices of the peace of the Northern Liberties and district of Southwark respectively; the compensation to the consulting and resident physician, were fees for certain services. By act of 23d September, 1794, 3 Dali. St. Laws, 641, the inspectors may suspend or remove from office, for reasonable cause, the visiting or resident physician, and appoint another or others in his place. By act of 4th April, 1798, 4 Dali. St. Laws, 287, a board of managers of the marine and city hospital was incorporated ; the managers to be appointed by the mayor or recorder and aldermen, and certain justices of the peace of the Liberties and District, annually. It contained this provision; That whenever any seven of the board of managers should deem the removal of any of the physicians and health officers necessary to the public health, and shall represent the same to the Governor, specifying the grounds, the Governor shall, thereupon, unless such grounds are manifestly frivolous and insufficient, remove such officer, and appoint another in his stead. By the act of 4th April, 1799, a new board of health is incorporated by the name of the board of health, to be appointed in a special manner by the local authorities; the Governor is authorised to appoint a resident physician; certain fees are allowed to the officer. By the act of 11th April, 1803, a board of health is established ; the Governor is to appoint the members ; the salary is 400 dollars ; the Governor is to remove on complaint of a majority of the board of health. The act of 17th March, 1806, repeals all former laws; incorporates a board of health; the Governor annually to commission and appoint five persons who are to constitute this board; the salary 500 dollars a year; the Governor empowered to appoint Lazaretto physician, port physician, health officer, and quarantine master, all of whom are placed under the direction and controu! of the board ; the compensation of Lazaretto physician, three dollars for every vessel examined, with certain privileges; the Lazaretto physician removeable by the Governor on the request of a majority of the members of the board of health. On the 25th March, 1813, the preceding act was extended for four years ; the Lazaretto physician to receive a salary °f 1300 dollars. By the act of 7th March, 1813, the acts of 1806, 1812, and 1813, are continued for three years from the 25th March; the members increased to eleven, to serve without compensation ; to be appointed, six by the select and common council, three by the commissioners of the Northern-Liberties and Penn Township, and two by the commissioners of Southwark and Moyamensing; two dollars allowed the Lazaretto physician for examining certain vessels, in addition to his salary.

Dr. Sutherland is in possession under a commission of 1st May, 1816, to hold the office until the commission and appointment should be by the Governor or other lawful authority superseded. Dr. Lehman claims the possession, under a commission of 14th March, 1817, of like tenor.

The constitution of this State provides, that the Governor shall appoint all officers whose offices are established by the constitution, or shall be established by law, and whose appointments are not by the constitution otherwise provided for. All commissions shall be in the name of the Commonwealth, under its seal, signed by the Governor. To attempt a definition of those officers intended by the framers of the constitution, who are thus exclusively to be appointed and commissiom-A by the Governor, would be anticipating matters not necessary to this decision. In a series of legislation from its formation to the present day, it has not been considered as embracing alb appointments to offices created by law ; in the several laws on this very subject it has not been so considered. By the act of September, 1794, the members of the board of health may not only suspend and remove the resident physician, but appoint another in his place ; and as they had controul over him by law, it would seem expedient, that so long as he possessed their confidence he should not be removed. The power of appointment to a new office, without commission from the Governor, in the. law creating the office, has frequently been exercised. As in the act of 4th April, 1794, offering compensation-to Pennsylvania claimants for lands, within the seventeen townships in Luzerne county. Ihe commissioners are named and appointed in the act, without any intervention of the Governor, except in his legislative capacity, approving the act. These commissioners were in the nature of judicial officers, exereising important and discretionary powers, and judicial functions ; and although the constitutionality of many of the provisions of that act has been called in question, yet this has never formed an objection. The enumeration of such appointments would be endless. It would be too much now to pronounce, that all this was usurpation on the constitutional rights of the Governor, forbidden by the constitution, and void. In most cases of local appointments, they are made by the people or by certain bodies of men authorised by the law creating the office; as sheriffs elected by the people under the constitution, although commissioned by the Governor ; county treasurers by the commissioners ; inspectors and managers of the board of health by the local authorities; and the very members of the new board of health to be so appointed.

That the legislature, possessing this power of appointment to offices local in their nature, created by law, submitting to the Governor the appointments, may restrain the power of removal, may modify the tenure of the office, cannot, I think, be justly questioned. The power granted by the constitution to the Governor to appoint, necessarily carries with it, in all offices where the tenure is during pleasure, the incidental power of removal. But, where the duration of the office is fixed by the law creating it, and where there is a provision for removal during the time limited for the continuance in office, it would seem to me that the officer is not removeable, except in the manner prescribed by the law. This incidental power of removal is not expressly given by the constitution, and it extends only by necessary implication to such offices as the Governor possesses exclusively the power of appointment to under the constitution, or the power is granted to him by the law creating the office, where there is no restriction on the power of removal.

The several tenures of commissions will arise under the constitution, or be founded on particular laws creating new' offices not provided for by the constitution. 1. Judicial offices in the Courts established by the constitution during good behaviour. 2. Offices for a limited time, depending on good behaviour, as Secretary of the Commonwealth. 3. For a limited time, as militia officers, and all others created by law, where the appointment is for a limited time. 4. During pleasure. 5, For a limited time; removeable on the request of those who have the superintendance of the duties to be performed ; rendering the officer removeable by the provisions of the act creating the offices by that mode. Such officer is only removable in the manner prescribed, during the period assigned by the law for the continuance in office, during the existence of the law.

I take the appointment of the Lazaretto physician to be of the latter description, and I consider his appointment as commensurate with the continuance of the law, where no other time is fixed; subject only to removal during all that time in the manner prescribed by the law.

Although the act of 1813, in many of its provisions, is continued by that of 1817, yet the alterations are so very important that it appears to be the creation of a new body, not the renovation of an old one ; not the prolongation of life to a body about to expire. The very constitution of the board of health was to be changed: this was the great, if not ■the sole object of the law. The creation of a new body was contemplated by the legislature; the calling into existence a new body of their own creation. The old one was suffered to exist during all the period assigned for its life by the power which created it: the new one was to ai'ise from its ■ashes, on its dissolution. A new order of things was to take place. If the changes had been merely formal; if it had been simply a continuance of the former law, another question would have been presented to the consideration'of the Court: for, 1st. The very mode of appointment of the members of the' corporation is totally changed ; it is transferred from the state government to the local authorities : 2d. The members are to act without compensation: 3d. The inci-ease of members: 4th. No limitation as to eligibility. The right of the officer depends not only on the law, but the appointment of the Governor. It is a commission continuing until the law under which it is made expires. For though the act of 1813 is continued, it is with such great and essential alterations of the whole fabric of the corpoi'ation as to render a new appointment necessary by the Governor. It may be proper to observe, that the commissioxx of Dr. Sutherland may be considei-ed as in perfect consistency with the law, “ super- “ seded by the Governor, or other lawful, authoritythat is, superseded by him, on the x-equest of a majority of the members of the board of health.

I am, therefore, of opinion that Dr. Sutherland continued Lazaretto physician until the 25th of March; but am of opinion that the information cannot be granted on the application of Dr. Lehman. If the conclusions I have drawn are in any degree correct, Dr. Sutherland remained the officer till the law of 1813 expired by its original limitation. The office was full until this time : the Governor could not appoint until the 25th March, 1817; for no new appointment could be made before, unless Dr. Sutherland had been removed, on the request of a majority of the board of health. This could not be an appointment under the new law; for the time, had not arrived when this new corporation was to go into operation. It could not be under the old law ; for the office was full: and if it were not, it would expire with that law. It is justly to be doubted whether the Governor can appoint to any office, while the office is full, and the officer is not removeable by the Governor. It is questionable whether he can appoint to any office, where the act provides that it shall not take effect until a future day, mentioned in the act, unless the power is given by the law; as, in this way, he might appoint to office, when such office had not existence until after the expiration of his own office. It, therefore, would appear to be necessary to the constitution of a good appointment under the act of 1813, that there should be a vacancy in the office, and, if under the act of 1817, the period should have arrived when the new corporation was to take effect. This principle is established by the Supreme Court of Massachusetts, in The Commonwealth v. Fowler, 10 Mass. Rep. 290, where it was determined, that, where the legislature had erected a new county, and in the act had provided that it should not take effect until a future day, mentioned in the law, an appointment by the executive, before that day, was void. It follows that this application, being a private one, by an individual who has sustained no injury by the intrusion of Dr. Sutherland into this office, to which neither have a right, cannot be granted. It is not made by any one acting ex officio oh behalf of the Commonwealth, but it is made by an individual who has no right, complaining of the usurpation of his office, and seeking redress for the intrusion.

Motion refused.