Lane v. Commonwealth ex rel. Attorney General

Chief Justice Mekcuií

delivered the opinion of the court,

Article IV., section 2 of the constitution of this Commonwealth declares “ the supreme executive power shall be vested in the governor.” Section 8 declares he shall nominate, “ and by and with the advice and' consent of two thirds of all the members of the sénate appoint,” certain officers therein named, “ and such other officers of the Commonwealth as he is or may he authorized by the constitution, or by law to appoint.”

Article VI., section 4, inter alia, provides, “that 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.”

Section lof the Act of f 8th April 1878 declares, “ Recorders of cities of the first class shall be appointed by the governor by and with the advice and consent of the senate.” Under this Act the plaintiff in error was appointed recorder of the city of Philadelphia.

It will be observed that the appointment was made under a statute which departs from the language of the constitution in two respects. It omits the word “ nominate ” and declares the recorder shall be “appointed” by the governor by and with the advice and consent of the senate, wholly omitting the words “ two thirds of all the members” thereof.'

Conceding the language of this statute may not give to the governor any more controlling power relating to the appointment than if it had adopted the words of the constitution, yet it in no wise attempts to narrow that power.

The office of recorder of this city is not one of the officers named in the constitution. Article XII., section 1, declares, “ all officers whose selection is not provided for in this constitution shall be elected or appointed as may be directed by law.” Although the office of recorder has existed here, under various changes of powers, for nearly a century, yet the plaintiff in error holds the office in virtue of legislation enacted under the constitution of 1874. That legislation prescribes the manner in which the recorder, shall be appointed. It recognizes the governor as the appointing power.

As already shown, the Constitution declares in section 8 cited, the governor shall nominate and he shall appoint. Before he completes the appointment the senate shall consent to his appointing,the person whom ho has named. It may prevent an appointment by the governor, but it cannot appoint. It may either consent or dissent. That is the extent of its power. There its action ends. It cannot suggest the name of another. If it dissent the governor cannot appoint the person named. If it consent he may or may not, at his option, make the appointment. If for any reason his views as to the propriety of the proposed appointment change, he may decline to make it. That option is not subject to the will of the senate.' Until the governor executes the commission, the appointment is not made. Prior to that time at his hiero will, he may supersede all action had in the case : Marbury v. Madison, 1 Cranch 137; Story’s Con. § 1540.

The language of section 8 of the Constitution cited, gives further evidence that the governor is recognized as the appointing power. Thus he can nominate such officers only as he is or may be authorized by the Constitution, or by law “ to appoint.” Again, the temporary commissions which he may-grant to fill vacancies that may happen during the recess of the senate, is limited to offices to which “ he may appoint.” Thus, whenever and wherever the Constitution speaks of the appointing power, it recognizes it as being vested in the governor. JSTowhere does it declare that the senate can appoint. The whole tenor and spirit of the Constitution, in speaking of the power of appointment, recognizes that it is lodged in the governor. He is charged with the duty “ to take care that the laws be faithfully executed.” The senate may not be in session for a year and a half at one time. The powers of the governor are never suspended. He'is at all times duly authorized to 'exei’cise “ the supreme executive power.” The fact that an officer may be removed by the dilatory process of impeachment, creates no argument against the summary power of removal by the governor. Crime, imbecility or gross neglect of duty may demand that an officer shall be removed at once. The power to protect the people of the Commonwealth by prompt action is wisely given to the governor. In giving construction to the Constitution we cannot assume that he will abuse that high trust.

In considering where the power of removal is lodged, we may draw some light from the interpretation given to the Constitution of the United States. It declares the president “ shall nominate and by and with the advice and consent of the senate shall appoint” officers therein named. It is silent on the question of removal of any officer, but declares the judges, both of the supreme and inferior courts, shall hold the offices during good behavior. As to other officers, congress in 1789 affirmed the right of removal to exist in the president, Avithout any cooperation of the senate. That vieAV was acquiesced in as the true construction of the constitution until the passage by congress of the Tenure of Office Act of 2d March 1867,' which was superseded by the Act of 5th April 1869, of a modified character. Apart from this legislation, the fact that the consent of the senate was necessary to authorize the president to appoint, did not prevent him from removing the officer’s at his pleasure.

The constitutional right of the governor to remove from office, differs from that of the president in this: It does not rest on power implied, but on poA\rer expressly given. Hence, the cases cited by counsel for the plaintiff in error are not applicable to the present case. They were decided under former constitutions, in which there was no express declaration as^ to whom the power of removal was given. The present contention is determined by ascertaining in whom the power of appointment is vested. As we have shown, the letter and the spirit of the Constitution both unite in declaring this power to be in the governor, it necessarily follows that officers appointed by him, other than those excepted, may, in the language of the Constitution, be removed at his pleasure. It follows the learned judge committed no error in entering judgment for the Commonwealth upon the demurrer.

Judgment affirmed.