Commonwealth Ex Rel. Kane v. McKechnie
Commonwealth Ex Rel. Kane v. McKechnie
Opinion of the Court
OPINION
This is an original action in quo warranto filed by the Attorney General of the Commonwealth of Pennsylvania. The action was commenced by the filing of a Suggestion for a Writ of Quo Warranto; this, in effect, was a complaint. See Rule 1111 Pa.R.C.P. The Suggestion alleged that the defendant, Alex J. McKechnie, Jr., was occupying the office of a member of the State Dental Council and Examining Board (Board). The Attorney General
The pleadings reveal no factual disputes between the parties. Pursuant to the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, art. IV, Sec. 414, 71 P.S. § 124, the defendant became a member of the Board following his election by the members of the Pennsylvania State Dental Society as president of that organization. The Administrative Code provides, in pertinent part, that:
“The State Dental Council and Examining Board shall consist of the president of the Pennsylvania State Dental Society [and eight other members]. . . .”
We conclude that this matter is controlled by Hetherington v. McHale, 458 Pa. 479, 481, 329 A.2d 250, 251 (1974), in which we held a similar statute unconstitutional because “. . . the power to appoint persons to conduct governmental functions cannot be delegated to private organizations. . . . ”
The defendant seeks to distinguish Hetherington because in that case the governmental committee had the authority to expend large sums of money whereas in this case the only funds “expended by [the Board] are the funds appropriated for the [Board’s] own operating budget.” The amount of money expended by the governmental agency, however, was not the controlling factor in Hetherington. Whether one dollar or one million dollars of public funds is involved, the controlling principle of Hetherington is unaffected, and the differences between
Defendant also attempts to distinguish Hetherington because in Hetherington the private group selected the person to serve on the governmental committee, whereas, in this case, the legislature designated that the person to serve would be the president of the Pennsylvania State Dental Society and not any member of the society whom its members chose to designate. We do not find the distinction significant. In Hetherington we pointed out that:
“. . . the people of this Commonwealth, through their duly elected representatives, have no voice in the appointment of those selected by private groups. No opportunity is provided for the public interest to assert itself. Instead, private groups responsive only to the interest of their membership choose those charged with performing governmental functions.” Id. at 484, 329 A.2d at 253.
In this respect, the situation here is actually worse than that present in Hetherington. In Hetherington, the private groups selected an individual specifically for the purpose of serving on the governmental committee. The procedure was held unconstitutional even though there was no reason to believe that the private groups would
Defendant also argues that Hetherington is distinguishable because in Hetherington eight members of a seventeen-member committee were designated by private groups, whereas, here we are concerned with only one member of a nine-member board. We cannot agree that this compels a different result. The one member in this case has a vote in the exercise of governmental functions, and one vote can without doubt significantly affect the decisions of the Board.
We have also considered other differences pointed out by the defendant between Hetherington and this case and find them to be of no significance.
The statute appointing the person elected by the State Dental Society as its president to membership on the State Dental Council and Examining Board is an unconstitutional delegation to a private group of the power to make governmental appointments. Accordingly, the motion of the plaintiffs for judgment on the pleadings is granted, and the defendant, Alex J. McKechnie, Jr., is
Dissenting Opinion
(dissenting).
The majority concludes that Section 414 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, Art. IV, 71 P.S. § 124, is unconstitutional because, under its terms, a private group is delegated the legislative power to make appointments to a governmental board. Of course, an Act of the General Assembly is presumed to be constitutional and will not be struck down unless it clearly, palpably and plainly violates the Constitution.
In my view, the majority’s reliance on Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250 (1974) (opinion announcing the decision of the Court), is misplaced. It was there concluded that Section 16(e) of the Pennsylvania Harness Racing Act
. See, e. g., Hetherington v. McHale, 458 Pa. 479, 489, 329 A.2d 250, 255 (1974) (Jones, C. J., dissenting opinion); Absentee Ballots Case (No. 2), 431 Pa. 178, 245 A.2d 265 (1968); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1965).
. Act of December 22, 1959, P.L.1978, § 16(e), as amended, 15 P.S. § 2616(e) (Supp.1975-1976).
. Three members of the Court, including this writer, did not agree. Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250 (1974) (Jones, C. J., dissenting opinion joined by O’Brien and Pomeroy, JJ.).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania Ex Rel. Robert P. KANE, Attorney General, Petitioner, v. Alex J. McKECHNIE, Jr., Member of the State Dental Council and Examining Board, and His Successors
- Cited By
- 4 cases
- Status
- Published