Ruch v. Wilhelm

43 A.2d 894, 352 Pa. 586, 1945 Pa. LEXIS 473

• Court: Supreme Court of Pennsylvania
• Decided: April 9, 1945
• Docket: Appeal, 20
• Status: Published

Opinions

Opinion by

Mr. Justice Horace Stern,

Appellant, William J. Ruch, having been summarily dismissed by the Commissioner of the Pennsylvania Motor Police 1 from membership in that body, now seeks reinstatement and reimbursement on the ground that the Commissioner had no legal right to discharge him except upon presentation and conviction of charges in court-martial or similar proceedings.

Euch enlisted as a private in the Pennsylvania State Police in 1920, resigned shortly thereafter, enlisted in 1924 as a member of the State Highway Patrol, and, by successive re-enlistments, served in the Patrol from 1924 to 1937 and in the Pennsylvania Motor Police from 1937 to November 23, 1938, on which latter date he was honorably discharged; he re-enlisted, however, the following day for another two years (that being the period prescribed by the Act of June 3, 1919, P. L. 366, section 7) and continued to serve until February 29, 1940; in the course of his service he was advanced in rank from private to corporal, to sergeant, to lieutenant, to captain, and finally to major. On February 16,1940, he was summarily discharged by the Commissioner, effective February 29, 1940. He alleges that no reason for his dismissal was given, no charges were filed against him, and he was afforded no opportunity to be heard. The dismissal was not, and did not purport to be, a dishonorable discharge; it merely effected a termination of his employment by the Commonwealth. The court below dismissed his petition for a writ of alternative mandamus.

Our function in this case is merely to decide whether or not the Commissioner had a right to dismiss appellant without the filing or hearing of charges against him. Our decision of this question must not be construed as implying approval, from any other than a strictly legal standpoint, of the allegedly arbitrary manner in which the Commissioner exercised that right.

The members of the State Police Force are appointed by the Commissioner (Administrative Code of 1929, P. L. 177, section 205; amendatory Act of June 29,1937, P. L. 2436). Under the common law, therefore, they are subject, like all other Commonwealth employes, to removal at the pleasure of the appointing power, either for cause or without cause, unless there is legislative provision to the contrary: 2 Glessner’s Case, 289 Pa. 86, 90, 91, 137 A. 166, 167, 168. They have such rights, and only such, regarding the tenure of their positions, as some statute may accord to them. Recognizing this, appellant relies upon the Administrative Code of 1929, P. L. 177, section 711, as amended by the Act of June 29,1937, P. L. 2436, which provides that the Commissioner shall make rules and regulations, subject to the approval of the Governor, “prescribing qualifications prerequisite to, 3 or retention of, membership in the force; for the enlistment, training, discipline, and conduct of the members of the force; for the selection and promotion of such members on the basis of merit; for the filing and hearing of charges against such members, and such other rules and regulations as are deemed necessary for the control and regulation” of the force. Such rules and regulations have been duly formulated, and one of them provides that “No member of the . . . force shall be discharged, reduced in rank, or lose any pay except by order of the Commissioner, or pursuant to sentence of court-martial, approved by the Commissioner”; that is, the option is given to the Commissioner either by his own action to dismiss a member of the force (as he did in the present instance), or to refer the case to a court-martial but with the reservation that its sentence must be approved by him.

It is appellant’s contention that this rule is illegal because of the statutory provision that the rules should provide “for the filing and hearing of charges”, appellant insisting that this is equivalent to a mandatory enact ment that no member of the force can be dismissed unless charges are filed and a hearing had thereon. We are unable to give to this curt and meagre phrase any such broad interpretation. The legislature has many times evidenced its ability to enact unambiguous provisions governing the appointment, promotion and reduction of policemen and other public employes and establishing protection for them against arbitrary and unjustified dismissals. Such provisions, for example, are to be found in the Act of June 25, 1919, P. L. 581, for the government of cities of the first class, in which the entire Article XIX, as amended by the Act of July 29, 1941, P. L. 579, is devoted to that subject; also in the Act of March 7, 1901, P. L. 20, for the government of cities of the second class, which in Article III, section 1, as amended by the Act of June 15,1937, P. L. 1761, imposes detailed and elaborate restrictions upon the appointment and discharge of policemen, and in the Acts of May 23, 1907, P. L. 206, and June 3,1943, P. L. 826, which contain similar regulations for second class cities with respect to the method of appointing and discharging other employes in the classified service; also in the Act of June 23, 1931, P. L. 932, for the government of cities of the third class, which in Article XLIV, as amended by the Act of June 4, 1941, P. L. 83, sets up an elaborate civil service system for the police and other departments; also in the Act of June 5, 1941, P. L. 84, regulating the appointment and removal of members of the police force in boroughs, incorporated towns and townships of the first class. Then there are various statutes establishing such provisions for certain departments of the State government ; for example, the Pennsylvania Liquor Control Act of June 16, 1937, P. L. 1762, Article III, for employes of the Liquor Control Board, and the Act of June 5, 1937, P. L. 1705, section 19, for employes of the State Board of Housing. Similar provisions are established by section 2504-A, added to the Administrative Code of 1929, P. L. 177, by the Act of June 24, 1937, P. L. 2003, for employes of the Department of Public Assistance, the State Board of Public Assistance and the local boards; by the Act of December 5,1936, P. L. (1937) 2897, section 208, for employes of the Department of Labor and Industry administering the Unemployment Compensation Law; and by the Act of August 6, 1941, P. L. 861, sections 13, 14 and 15, for employes of the Pennsylvania Board of Parole. By the Act of June 6, 1939, P. L. 250, adding section 452 to the Administrative Code of 1929, P. L. 177, a State Civil Service Commission was created, and the Civil Service Act of August 5, 1941, P. L. 752, 4 established a comprehensive system under which there was placed within the control of that body the classified service of most of the departments and boards of the state government hereinbefore referred to; incidentally it is significant that in the list of such departments and boards enumerated in Article I, section 3(c) of that act the State Police Force is not included as presumably it would have been had the legislature deemed that the members of the force were, or intended that they should be, under civil service protection. It is thus obvious that not only has the legislature seen fit to bestow such protection upon the employes of some state agencies and not others, but in each and every case where it so intended it has expressed its purpose in precise and unmistakable language.

In contrast with this extensive legislation, all that we have in the Act of June 29, 1937, P. L. 2436, is that rules and regulations should be adopted “for the filing and hearing of charges” against members of the State Police. Nothing is specifically or categorically said, as in the language of all the other acts cited, to the effect that no member shall be dismissed unless charges be filed and established at a hearing — in other words, that the filing and hearing of charges is a prerequisite to dismissal. The act says nothing whatever of the discharge of members of the force or of the causes for discharge. Its language can reasonably be interpreted to mean nothing more than that the Commissioner should afford suitable opportunity for charges or complaints to be made against a member of the force by third persons 5 or by other members and for a hearing, which might be held either by the Commissioner or by someone on his behalf, to consider such charges. All that the act suggests is that some mechanism should be provided whereby charges may be aired and heard, but there is nothing from which it can reasonably be inferred that, unless such a mechanism be resorted to, the Commissioner may not dismiss a member from the service for what he considers good and sufficient reason. If the legislature desires to place members of the State Police Force under civil service protection it may readily do so, employing the same clear language it has used in other instances, but we cannot hold, by any justifiable extension of the power of judicial interpretation, that it has manifested such an intention merely by directing the Commissioner, with the approval of the Governor, to make rules and regulations for the filing and hearing of charges against such members. There is, indeed, a grave question whether, if such a construction of the statute were to be adopted, it would not render the constitutionality of the act extremely doubtful. Establishing restrictions on the common law right to discharge employes is a matter of substantive enactment, and the legislature cannot delegate to the Commissioner the power to make what amounts to such an enactment through the medium of “rules and regulations”. Authority may be given to a government official or an administrative agency to make rules and regulations to cover mere matters of detail for the implementation of a statute, but where the statute itself is lacking' in essential substantive provisions the law does not permit a transfer of the power to supply them, for the legislature cannot delegate its power to make a law: Chester County Institution District v. Commonwealth, 341 Pa. 49, 61, 17 A.2d 212, 218. In O’Neil v. American Fire Insurance Company, 166 Pa. 72, 30 A. 943, an act which delegated to the Insurance Commissioner the power to prescribe a standard form of fire insurance policy was held to be unconstitutional.

In conclusion, there is an obvious reason why the remedy of reinstatement cannot, in any event, be granted in these proceedings. Appellant’s latest enlistment would have expired November 24,1940, at which time he would have been formally discharged as he was in 1938, and there cannot be any reinstatement for a period that has terminated. Nor can it be assumed that, even though he might have sought to re-enlist in 1940, his re-enlistment would then have been accepted; 6 he certainly had no vested right in that regard.

Order affirmed.

1 The name was changed by the Act of April 28, 1943, P. L. 94, to “Pennsylvania State Police”, which had been its original designation.

2 If tie members of tbe State Police Force were to be considered “officers” witbin tbe meaning of Article VI, section 4, of tbe Constitution, even tbe legislature, of course, could not restrict tbe power of tbe Commissioner to remove them at will.

3 Qualifications for membership are prescribed by tbe Act of June 8, 1919, P. L. 366, section 8.

4 Partially suspended, however, for the duration of the war by the Act of June 4,1943, P. L. 870.

5 Thus in the Act of June 25, 1919, P. L. 581, for the government of cities of the first class, it is provided in Article XIX, section 18, that charges against police officers may be filed “by any superior officer or by any citizen or taxpayer”.

6 One of the rules provides that members of the force discharged upon expiration of enlistment must, “if acceptable for re-enlistment”, re-enlist within 24 hours thereafter, or forfeit continuous service pay.