Houseman v. Commonwealth ex rel. Tener

Mr. Justice Green

delivered the opinion of the court, ' October 2d 1882.

The practical controversy between the parties to this proceeding turns upon the validity of the relator’s appointment. That question depends upon the construction to be given to the fourth section of the sixth article of the constitution of 1874. So much of the section ascertains to this contention is in these words : “ 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.”

Donohugh, the former incumbent of the office of collector of delinquent taxes in the city of Philadelphia, was removed from his office prior to the expiration of the term of his appointment, and the .relator, Tener, was appointed in his place. Both the removal and appointment were the acts of John Hunter, who, at the time, was the duly elected and acting receiver of taxes for the city. The only objection to the validity of Tener’s appointment is the alleged invalidity of Donohugh’s removal. If the latter was lawfully removed, the former was lawfully appointed. The present proceeding is not a trial of the title to the office. It is not a quo warranto, but a mandamus to compel the city councils to approve the official bond tendered by the relator. A peremptory writ having been awarded by the learned court below, the bond was approved by an ordinance of the councils. ■ The present writ of error is taken to the decree awarding the peremptory writ. It is contended with much force on the part of the relator, that as the bond has been approved it is an end of proceedings and the writ of error is fruitless. As the view that we take of the case renders the decision of this question unnecessary we pass it by. It is argued by the very able counsel for the plaintiffs in error that the removal of Donohugh was an invalid exercise of power, for the reason that the power of removal does not extend to municipal officers. It is conceded that this result can only be reached by restricting the plain words of the constitution. In their literal sense it cannot be doubted that the words descriptive of the officials subject to removal, make no distinction between state, county and municipal officers, and do include them all. The. first clause of the fourth section provides 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.” The remainder of the section directs that appointed officers may be removed at the pleasure of the power appointing them, and elected officers by the governor on the address of two thirds of the senate. The whole language of the section is very general. We see nothing in it which authorizes a distinction between state, county and municipal officers. The only distinction made in the section is between officers appointive and elective. But that distinction is common to state and county officers, as well as to those who are municipal. And there are petty officers in each class, so that no force can be given to the suggestion that municipal officers were not intended to be included, because many of them are of a petty and insignificant character. There are petty state officers and petty county officers, and it may well be that it was not intended that any of these should be either subject to impeachment, or to removal on address of two-thirds of the senate. But that consideration will not prove that an important municipal officer exercising grave public functions shall not Be subject to removal, at the pleasure of the power which appointed him.

There was provision for removal in the old constitution as well as in the new. Section 9 of the sixth article provided that all officers for a term of years should hold their offices during good behavior and should be removed on conviction of misbehavior in office or of any infamous crime. That section, with the words “ for a term of years ” stricken from it, constitutes the first clause of the fourth section of the sixth article of the new constitution. It is manifest then that the words “ all officers ” in the old constitution were not intended to import only such as were subject to impeachment, and the argument by inference from such a supposed restriction is not applicable. But the old constitution while it provided removal as a penalty failed to declare who should exercise the power, and limited it to the cases of conviction of misbehavior in office or of an infamous crime. The fourth section of the sixth article of the new constitution, enlarges the power of removal and speaks with more certainty both as to the authority which shall be clothed with it, and the manner of its exercise. Under the new constitution there are three kinds of removal, to wit, ■on conviction of misbehavior or crime, at the pleasure of the ■appointing power, and for reasonable cause on the address of ■two-thirds of the senate. All officers are sub j ect to the first kind, .appointed officers to the second, and elected officers to the third. It seems to us very clear that the word “ officers” here is used in the same sense throughout the section so far as their ■classification into state, county and municipal, is concerned. "We cannot conceive that wo have any right to say that the expression “ appointed officers ” shall be held to exclude such as are municipal, and include only such as are state or county, when it is not at all disputed that the expression “ all officers” in the first clause includes them all. • The distinction between appointed and elected officers, is one that relates merely to the source of their authority. That is, those that are appointed, not some of them but all of them, may be removed at the mere pleasure of the power that appointed them, and those that are elected, on the address of two-thirds of the senate, ánd by the governor. In the latter case there must bo some reasonable cause of removal, in the former* there need be none but the mere will of the appointing power. It seems to us that we would be making, rather than construing, the constitution if we should say that appointed municipal officers shall not be removable at the pleasure of the power which appointed them, when the plain unambiguous words of the instrument positively declare that all appointed officers shall be subject to such removal. If we could thus declare, it is difficult to perceive any good reason why we might not with the same propriety hold that appointed county officers should be exempted from this method of removal. In truth there is no distinction appearing in the section either by words or inference, in either the territorial or functional character of the offices held by the persons who are subjected to its operation. For us to make such a distinction would be a work of creation, not of interpretation.

It is argued that a reading of other clauses of the constitution leads to the inference that municipal officers were not intended to be embraced in the section we are considering. If that section * were of dubious meaning, this argument, if sustained, would be of force. As, however, it seems to us the meaning is not doubtful, the argument becomes far less persuasive. I3ut an examination of other parts of the instrument does not in our judgment sustain the position. Scarcely any significance can be attached to the wording of the captious or titles of the several articles, either in the old or new constitution. At most they do not profess to indicate more than the general character of the article to which they are prefixed. That they are intended as critical and precise definitions of the subject matter of the articles, or as exercising restraining limitations upon the clear expressions therein contained, can not be pretended. Thus the twelfth article of the new constitution is entitled “Public Officers.” It is composed of three sections. The first simply declares that all officers whose selection is not provided for in the constitution shall be elected or appointed as may be directed by law. The second declares the incompatibility of federal and state offices, and the third imposes the penalty of ineligibility upon duellists and challengers. It is not possible, by any kind of construction, to regard this article as a designation of the officers who are to be considered, as public. In the old constitution the same caption is given to the third section of the sixth article, and yet the entire section provides only for the mode of selection, and tenure of office of prothonotarics, clerks, recorders and registers. It is plain that from so untenable a basis no inference can be drawn that municipal officers are not intended to be included in the expressions “ officers,” “ all officers,” “ appointed officers,” “ officers elected by the people ” and “ civil officers.” To impose such a limitation upon the comprehensive import of these phrases, some express declaration to that effect, or some inevitable inference, would bo requisite. Especially is this the case in the construction of instruments, which decíate the organic law of a state. Such instruments deal with larger topics and are couched in broader phrase than legislative acts or private muniments. They do not undertake to define with minute precision in the manner of the latter, and hence their just interpretation is not always to be reached by the ajiplication of similar methods.

It is argued for the plaintiffs in error that there is an absence of provision for municipal officers in the constitution, which indicates that they were not intended to be included within the meaning of the words and phrases above mentioned. The argument is not without force, as it must be confessed there is much meagreness of reference in the instrument to municipal affairs and officers. But a close inspection developos, as we think, sufficient of such reference to take away the force of the argument. In the 27th section of the third article it is provided that, “ no state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity,, but any county or municipality may appoint such officers when required by'law.” Here the term “ office” is used as equally and similarly within the function of the state, the county, or the municipality. The third section of the eighth article provides for the holding of all elections for city, ward, borough, and township officers. The fifteenth section of the same article declares the ineligibility as an election officer of any person who has held within two months, “ any office, appointment or employment in or under the government of the United States or of this state, or of any city or county, or of any municipal board, commission or trust in any city.” In the last clause of the same section it is provided that no elective officer shall “ be eligible to any civil office to be filled at an election at which lie shall serve, save only to such subordinate municipal or local offices, below the grade of city or county offices, as shall be designated by general law.” In the ninth and tenth sections of the ninth article all municipalities are grouped with counties, townships and school districts in provisions which relate to the creation and discharge of indebtedness and its assumption by the commonwealth. County officers are the subject of provisions in the first five and the last, of the sections of the fourteenth article, and in the sixth section “ all county, township and borough officers,” are classed together in a single provision for their strict accountability for fees and “ for all public or municipal moneys which may be paid to them.”

The fifteenth article relates to cities, and city charters. The 24-th section of the schedule provides for the continuance in office of all aldermen who, are in office at the adoption of the constitution, in cities containing over fifty thousand inhabitants except Philadelphia. The 25th section provides for the election of magistrates in Philadelphia in lieu of aldermen and fixes their term of office as also the expiration of the terms of aider-men in office. The 29th section directs that “ all state, county, city, ward, borough and township officers, in office at the time of the adoption of this constitution, whose compensation is not provided for by salaries alone, shall continue to receive the compensation allowed them by law until the expiration of their respective terms of office.” Nothing can be clearer than that the word “ officers ” is here used in precisely the same sense, whether it relates to state, co.unty .or municipality.

In addition to the foregoing there are other clauses of the constitution in which the words, “ office ” and “ officers,” are used with a generality of expression which plainly includes those of the state, county and municipality. Thus the eleventh section of the third article prohibits the passage of any bill giving any extra compensation to “ any public officer, servant, employee, agent or contractor,” in certain circumstances. The 13th section of the same article invalidates any law extending the term of “ any public officer,” or increasing or diminishing his salary during his term. The second section of the twelfth article provides- that no member of congress or other federal officeholder, “ shall at the same time hold or exercise any office in this state, to which a salary, fees or perquisites shall be attached.” Certainly the term “ any office ” here used, includes municipal as well as state and county offices. In. the last clause of the same section the general assembly is authorized to “ declare what offices are incompatible.” This power they exercised by Act of May 15th 1874, P. L. 186, and an examination of it shows that in the designation of incompatible offices, state, county and municipal offices are mingled without discrimination. The third section of the third article directs that any person fighting a duel or sending a challenge, “ shall be deprived of the right of holding any office of honor or profit in this state.” We think it will scarcely be claimed that municipal officers may fight duels with immunity from this section, on the ground that they are not to bo considered as persons “ holding any office of honor or profit in this state.” The 26th section of the schedule declares that “ all persons in office in this commonwealth, at the time of the adoption of this constitution,” shall hold their offices until the expiration of their terms. Certainly this language includes municipal as well as state and county officers.

Prom all this we are clearly of opinion that no restricted meaning can be attached to the words, “ all officers,” “ appointed officers ” and “ all officers elected by the people,” in the fourth section of the sixth article, upon the theory that such restriction is either suggested or required by the reading of other clauses of the constitution. On the contrary, we think that such reading is in hostility with such a theory, a.nd in confirmation of the generality of meaning which those expressions in themselves plainly import.

If, departing from this line of reasoning, we inquire whether the office of receiver of delinquent taxes in Philadelphia is a public office, and brings its incumbent within the category of “ public officers,” and as such amenable to removal, we think the way is equally clear. He is a receiver of taxes. The moneys which come to his hands arq public moneys. A considerable part of them are collected for, and are payable to the Commonwealth under statutes enacted specially for that purpose. No element of more private trust pertains to bis functions. The sums he receives may be of much magnitude. He is the officer of a great municipal government with an immense population and vast material interests. It would seem that such considerations sufficiently indicate the public character of his official position. But the question is not without authority.

In the case of the Commonwealth v. Evans, 24 P. F. S. 124, the present Chief Justice, on page 139 said, “We are of opinion that the defendant below was a public officer within the purview of the first section of the Act of July 12th 1842, Pamph. L. 339, which excepts from the provisions of that Act, abolishing imprisonment for debt, proceedings .for the recovox-y of moneys collected by any public officei'. It may sometimes indeed, be a difficult matter to distinguish between a public officei', and a pei'son employed by the government to perform some special service by contract . . . But we are of opinion that all persons who, by authority of law, ai'e intrusted with the receipt of'public moneys, through whoso hands money due to the public or belonging to it, passes on its way to the public ti'easury, must be so considered, by whatever name or title they may be designated in the law authox'izing their appointment, and whether the service be special or general, transient or permanent . . . No one can doubt that collectors of public taxes are within the letter of the exception of the Act of 1842.” While it is true that Evans was employed by the state, the decision of the case was not based upon that consideration. In point of fact he was not an “officer” in the ordinary sense of that term, but rather a special agent employed for a single purpose. In the case of Commonwealth v. Shaver, 3 W. & S. 338, we held that the ninth section of the sixth article of the constitution of 1838, which provides for the removal of “ all officers for a term of years ” on conviction of misbehavior or crime, embraced a sheriff although he is a county and not a state officer. On page 340 we said,' “ It is very clear that sheriffs as well as other officers, holding their respective offices for a term of years only, are embraced within this provision of the constitution.”

We are clearly of opinion that the removal of Donohugh was a valid exercise of power, and as the appointment of his successor devolved upon the receiver, who exerted his authority by appointing the relator, it was the duty of the councils to approve his bond, and there was no error in the decree to that effect.

Judgment affirmed.