OFFICIAL OPINION No. 30

OFFICIAL OPINION No. 30 Act 212 of 1972-Sep.aration of powers-Article I V, §2 of Pennsylvania Con· sti.tution-Spec·ial law-Article 111, §32 of P ennsylvania Constitution- Power of appointment. 1. The appointment by statute of private citizens as representatives of pri· vate organizations on an administrative committee performing an execu· tive function violates Article IV, §2 of the Pennsylvania Constitution which vests executive power in the Governor and includes therein the power of appointment. 2. The apointment by statute o~ private citizens as represetatives of pr!· vate orgamzat!ons on an adn11mstrat1ve committee performing an execu· tive function violates the constitutional principle of separation of powers. OPINIONS OF THE ATTORNEY GENERAL 71 3. The appoiD:tm~nt by statute of private citizens as representatives of pri- ".ate ?rgai:1zat1<;ms on an administrative committee performing an execu- tive funct10n gives preferential treatment to private organizations and therefore, violates the stricture on passing special laws found in Artie!~ III, §32 of the P ennsylvania Constitution. Honorable James A. McHale Secretary Department of Agriculture Harrisburg, Pennsylvania Dear Secretary McHale : Harrisburg, Pa. April 4, 1973 You have requested our opinion as to the constitutionality of those provisions of Act 212 of 1972 which require the appoint- ment of designees of the Pennsylvania State Council of Farm Organizations, The Pennsylvania Canners and Fruit Processors Association, and the Pennsylvania Association of County Fairs to the committee administering the Pennsylvania Fair Fund. It is our opinion, and you are hereby advised that you must re- gard as unconstitutional those portions of Act 212 of 1972 which require such appointments. The appointment of private citizens as representatives of private organizations to approve and over- see the expenditure of public funds violates Pennsylvania Con- stitution, Article IV, §2, and Article III, §32. Act 212 of 1972 provides, inter alia, as follows: "In the event there is in the Pennsylvania Fair Fund an excess over the amount required ..... , such excess shall be distributed as follows: ten percent of such ex- cess or seventy-five thousand dollars ( $75,000), which- ever amount is greater to be used by the Department of Agriculture for marketing and consumer service pro- grams; and fifty percent of such excess or four hundred thousand dollars ($400,000), whichever amount is greater for agricultural research projects, as determin- ed by a committee to include in its membership, the Secretary of Agriculture, the chairman and a minority member of the Agriculture Committee of the Senate the chairman and minority member of the Ag- ricultu~e Committee of the House of Representatives, six persons designated by the Pennsylvania State Coun- cil of Farm Organizat~on_s, the cJ:iairm~n of the State Harness Racing Commiss10n or his designate, one per- son designated by the Pennsylvania Ca~ners and Fruit Processors Association, one person designated by the Pennsylvania Association of County Fairs an~ three persons designated by the Secretary of Agriculture from his staff. "There are hereby created subcommittees, the mem- bers of which shall consist of the Secretary of Agri- culture or his designate. the chairman of the Agricul- 72 OPINIONS OF THE ATTORNEY GENERAL ture Committee or his designate, the chairman of. the Agriculture Committee of the House of ~epresentahves or his designate, and a member designate.a by the group representing the producers involvc::d m the re- search project which shall meet annually m the month of September to evaluate research projects and report their findings and recommendations to the Secretary of Agriculture and the members of the committee." Sec- tion 1 of Act 212 of 1972 (Emphasis added.) The Pennsylvania Constitution, Article IV, §2, vests the exec- utive power in the Governor: "The Supreme executive power shall be vested in the Governor, who shall take care that the laws be faith- fully executed ..... " As indicated by the Pennsylvania Supreme Court in Bailey v. Waters, 308 Pa. 309 (1932), the Pennsylvania Constitution ap· plies the theory of separation of powers, and the Legislature cannot encroach upon the powers of the executive directly or indirectly through the power of appointment: "It is inherent in our scheme of government that the three departments should be independent and that nei- ther department should perform functions belonging to the other nor exercise influence over persons conduct- ing the affairs of other departments as to control their actions." 308 Pa. at 313 (Emphasis added.) Furthermore, as held by the United States Supreme Court in Myers v. United States, 272 U.S. 52, 164, 47 S. Ct. 21, 41, 71 L. Ed. 160 ( 1926), the vesting of executive power in a chief executive includes the exclusive control of the power of appoint- ment-absent a constitutional provision permitting legislative appointment. Consequently it is concluded that the power of appointment is an indispensible ingredient to the exercise of executive power and that the principle of separation of powers requires that the Legislature cannot appoint persons to serve in the executive branch of government for such a power of ap- pointment would be an unconstitutional exercise of influence by the Legislature on the executive branch. See, also, Springer v. Government of Philippine Islands, 277 U.S. 189, 202, 48 S. Ct. 480, 482 ( 1928). Although there is the general rule of constitutional law that appointment power rests in the executive and that the Legis· lature cannot usurp such power through statute, particular ref· erence must be made to the facts of Act 212 of 1972. The pri· vate persons whom the Legislature chose to exercise executive power are non-elected private citizens who would act as repre· sentatives of private organizations and who would not be sub· jected to executive control. In Olin Mathieson Chemical Corp. v. White Cross Stores, 414 Pa. 95 (1964), the Pennsylvania Supreme Court addressed an analogous situation where legis- OPINIONS OF 'i'HE ATTORNEY GENERAL 73 lati~e po~er was vested in private citizens under the Pennsyl- vru;ua Fair Tra~e Act. There, the Court held that vesting legis- ~ative power wi.th non-elected private citizens was unconstitut- 10nal under Article II, §1 of the Pennsylvania Constitution: "P~ice regulatory power vests only in the elected legis- lative body. It may in limited ways be delegated to ot~~r respon?ib.le agencies, such as public service or utility commiss10ns .... . However, it may not be dele- gated to private persons. The vesting of a discretionary regulatory power over prices, rates, or wages, in pri- vate persons violates the essential concept of a demo- cratic society and is constitutionally invalid [citing cases]." 414 Pa. at 98, 99. (Emphasis added.) Just as the Legislature cannot constitutionally vest private per- sons with legislative power under Pennsylvania Constitution. so also an attempt to vest private citizens as representatives of private organizations with executive power where such persons are not subject to control of the Governor is invalid under Art- icle IV, §2 of the Pennsylvania Constitution. Moreover, Article III, §32 of the Pennsylvania Constitution provides inter alia: "The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law .... " (Emphasis added.) In State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 294 ( 1971), the Pennsylvania Supreme Court held that the preferential treatment accorded Pennsyl- vania Chiropractic Society in a statute which required that the chiropractors who seek annual renewal of their registration and license demonstrate that they attended an educational con- ference by the Pennsylvania Chiropractic Society was violative of the restrictions on special laws found in Article III, §32 of the Pennsylvania Constitution. In reaching this result, the Court relied upon the lower court's decision which held that prefer- ential treatment to a private organization-without stating an adequate basis in fact- is a special law which is repugnant to the Pennsylvania Constitution: "To give power and authority to this private corpor- ation by name with no expressed reason or justification establishes a special law and is repugnant to the con- stitution." 90 Dauph. at 48, affirmed, 441 Pa. at 296. In Act 212 of 1972, the Legislature named three private or- ganizations-Pennsylvania State .council of Farm Or~a~izations. Pennsylvania Canners. and Frmt Proc~ssors Assoc~at10n, and Pennsylvania Associat10~ of County Fa~rs-who de;signate re~­ resentatives to the committee. In so nammg these private organi- zations the Legislature expressed no reason or justification for giving these groups such preferential treatment. In addition, it is noted that not only are such groups sharing administrative 74 OPINIONS OF THE ATTORNEY GENERAL power under Act 212 bat they may obtain substantial and direct benefits from the decisions of the committee by channeling re- search monies into projects i:1 which they have a _substant~al interest. Consequently, it is coEcluded ~ha~ Act ~12 is a spe~ial law which benefits the named orgamzat10ns. ... he remammg question is whether or not this special law has been or could have been provided for by general law. Act 212 of 1972 was preceded by Harness Racing Corpora- tion Act 15 P.S. §2616 ( e) which provided for the Pennsylvania Secretary of Agriculture performing the functions which are now delegated to the committee which consists of private citi- zens. It, therefore, is obvious that the funceions of the committee pursuant to this special law have previously been performed by a general law, 15 P .S. §2616(e ). It m ust be concluded that Act 212 of 1972 must be treated as unconstitutional insofar as it ap- points private citizens as representatives of private organizations to perform an administrative function which can be handled by the executive branch of government without a special law. In appointing private individuals as representatives of private groups to an administrative committee, Act 212 is, therefore, to be regarded as uncon5titutional for two reasons: 1) it is a usurp- ation of the power of appointment which is vested in the exec- utive; and 2) it is a special law in contravention of Pennsylvania Constitution, Article III, §3'.2. In summation, it i:o concluded that you must treat Act 212 as unconstitutional inasmuch as it appoints the following members to the committee: 1) six persons designated by the P ennsylvania State Council of Farm Organizations: 2) one person designated by the Pennsylvania Canners and Fruit Processors Association; and 3) one persor!. desil5nated by the Pennsylvania Association of County Fairs. Consequently, you must refuse to recognize these perrnns as members of the committee and must deny them any authority to participate in the deliberations of the commit- tee. Very truly yours, RICHARD J. ORLOSKI Deputy Attorney General ISRAEL PACKEL Attor;;,ey General