Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1881-05-28
WECaANs vs.. SHIRK.

The following is the short, sharp and
decisive opinion Of the supreme court in
the case of the Lancaster city treasurer
dispute. Judge Green seems to think the
lower court a necessity insomuch as "it
knows no law:
WELcHANs,) May Term, 1881.
VS.. Error to c. P. of Lancaster
sH1Rk. county.
Green, j: In this case the sole cOnten
ton of the parties arises upon the plead
ings. These consist of q petition for a
an answer, and demurrer to
tho answer. The petition alleges that the
was elected treasurer and re-
eeiver Of taxes of the city of Lancaster to
serve for one year from the fifth
day of April 1880, subject to the right
of suspension or removal as provided by
law. That on January 5, 1881, by
joint resolution Of the city councils, the re-
sponjent was suspended from his Office,
and that on January 2, following, the said
suspension was, by another resolution, con-
tinued until further action and on the Same
day the petitioner was appointed to the
same Office. That the petitioner had duly
qualified for the Office, and that respond
ent held in his possession certain moneys
and books belonging to the city, which he
refused to deliver to the petitioner
upon demand made, and which
were necessary for the proper man.
agement of the financial interests of
the city. A mandamus is asked ~ CON-
pei the delivery of the money and books
referred to. To this petition the respon-
dent fled an answer in which lie stated
his du9 election to the Office in question
that he gave bond, which was approved,
took the prescribed oath and entered upon
tho duties of the Office but denies that
the councils had the right to remove him.
He further alleges that he at all times
conducted himself faithfully and
honestly in his Office and never gave
any cause for suspension therefrOm !;
that he was informed of the passage of
the resolution for suspension but avOws
that it was imperative and void, and that
the attempted suspension was entirely
illegal and Of NO effect. He further alleges
that he was on January Z, 1881, and up
to the time of subscribing the answer, still
treasurer and receiver of taxes of Lam
caster city, and that the petitioner was
not legally appointed to the Office and was
not such treasurer and receiver. To this
answer the petitioner filed q general de-
murrer, and the respondent filed jOinder.
The court, holding the answer insuffi-
cient, gave judgment against tho re-
spondent and awarded per-
emptOry writ of mandamus. In this
there was clear error. The demurrer ad
mitted the truth of the facts set out in the
answer. Both the petition and the answer
cOncurred in asserting the due election of
the respondent to the Office, and the an
swer averred the subsequent qualification
and entry by the respondent upon the
duties of the Office. He was therefore at
the time the petition was filed, the law
fully elected, qualified and acting officer of
the city. Thus holding his office be
could not be arbitrarily deprived
of it. No right to deprive him
of it except, according to law is al
legged, but no suspension or removal in ac-
cordance with tho law is in any manner
averred in the petition. Nothing more is
asserted than an actual suspension by res
OlutiOn. Copies of the resolution are ap-
pended to the petition, but they contain
no mention of any cause Of removal. More
over, the answer alleges that the respond
ent at all times behaved himself in his Of
ficc faithfully, honestly and carefully, and
never gave cause for suspension from the
same. The demurrer admits this to
be true, and vet the court gives
an adverse judgment. An attempt is made
to defend the action of the court by re-
fcrring to the twenty fifth section of the
city charter (act of April 5, 1861, which
cOnfers authority to remove tho treasurer.
The clause in question is in the following
words "The said treasurer shall verify
his cash account at least once in every
month to the satisfaction of q standing
committee of councils, and upon the affi-
davlt of q ma ajOrity of such committee to
any default therein the said treasurer
may be suspended from Office and
another appointed until the further
action to councils" 1t will be
seen at once that the right to suspend
only arises upon the affidavit of majority
of the committee being made to default
by the treasurer in verification of his
account. But no such affidavit is alleged,
nor any default by tho treasurer. Where
then do the councils get the power to sus-
pend {? The fundamental facts upon which
alone that power is based are neither al
legged nor proved. More than that, the
answer atfirmatively AYERS that tho re-
spOndent never gave any cause for sus-
pension, and the demurrer admits this to
be true. In order to sustain the judgment
of the learned court below we would
be obliged to presume the existence of
cause of suspension without any proof,
without even an allegation to that effect,
and in the face of an assertion by the re.
SpOndent that there never was such 4
cause, which assertion the petitioner ad-
mits to be true. The mere statement of
this proposition is enough. We have no
authority to make any such presumption
in such state of the record.
Judgment reversed; and judgment is
now entered here on tho demurrer in |
favor Of the respondent, with costs.
Market Matters.
There was q very good market this |
and very full attendance of buy
ers. OF meats, spring lamb was most |
sought after and went off like hot cakes
1t prices ranging from 16 to 25 cents per
pound. Beef, veal and mutton were un-
changed in price. Spring vegetables,
roots and fruits, were reasonably plenty.
Onions and radishcs sold at 5 cents a
bunch, cabbage at 10 cents and upwards :;
25 cents ; cucumbers, 4@G
;ents each beans, IS cents per half peck
lew potatoes 4O@5O cents per half peck
)eas, % cents per half peck tomatoes,
$3.50 cents per box. Of fruits,
commanded the most at
entiOn as usual. They sold at 1925
ents per box as per quality. Bananas
'rought 10000 cents a dozen oranges,
O(96O cents . dozen lemons, 15(925 cents
dozen pineapples, 1925 cents each
ocOanuts, 691O cents each.
Tho fish market was we'll supplied, shad
eing the ruling speciality, prices remain
1g unchanged. l.
Elo-nrv 0nI r.~~lo., /