Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1883-05-24
LANES OFFICE
raE suPkEuE OOURf AaAaKsr AIA

Judpe Mercur's Opinion AMrmlnG the Deci-
s,on of tho Lower Court-The Power
of Removal Vested in the COVER
nor Alono.
The supreme court yesterday swept
avav the last remnant of David d. Lanes
title to the recordership. BE has made
stubborn and unavailing battle to retain
the Office, persisting in the contest even
after the Legislature had stripped it Of
many of the emoluments and much of pat.
ronage which once made it 20 desirable.
On saturday, March 81, common pleas
court, No. 8, decided against Mr.. Lane in
the quo warranto proceedings in which he
was called upon to show by what authority
the governor, to administer the Office of
recorder. The matter came before the
court on demurrer by the commonwealth
| to q plea on Lanes behalf. The case was
promptly carried to the supreme court,
| where it was held under consideration for
severalweeks. Upon the opening of the
court yesterday Chief Justice Mercur read
the opinion, in which all of the justices
concurred. It fully affirmed the judgment
of tho lower court. Tho text of the
! opinion follows:
| " Article 4, section 2, of tho constitution
| of this commonwealth declares the su-
| premo executive power shall be vested in
the governor Section declares he shall
| nominate and, by and with tho consent of
two. thirds of all the members of the Sem
ate. appoint certain officers herein named
and such other officers Of the common.
wealth as be is or may DO authorized by
the constitution or by law to appoint
"Article 6, section 4, inter ala, provides
that appointed officers, othor than judges
of the courts Of record and tho superin-
tendent of public instruction, may be
removed at tho pleasure of tho power by
which they shall have been appointed
"Section of the act of 18th April,
1878, declares: Recorders Of cities of
the first class shall be appointed by the
governor, by and with the advice and
consent of the Senate Under this act
the plaintiff in error was appointed
recorder of the city of Philadelphia.
"It will be observed that tho appoint
ment was made under statue which
departs from the language of the consti-
tuition in two respects 1t Omits the word
nominate and declares the recorder
shall be appointed by the governor, by
and with the advice and consent of the
Senate, wholly emitting the words two.
thirds of all the members thereof.
, SOuCouluS OuO i0uSudSOO "a 1AiS o0o0uSO
may not give to the governor any more
controlling power relating to the appoint.
, ment than if it had adopted the words of
the constitution, yet it in nowise attempts
to narrow that power.
II Powers OF the Senate.
, "The Office of recorder of this city is
not one of the Offices named in the consti-
tuition. Article 12, section I. declares all
officers whose selection is not provided for
in this constitution shall be elected or ap
f pointed as may be directed by law.
, Although the Office of recorder has existed
here under various changes of powers for
nearly q century, yet the plaintiff in error
holds the Office in virtue of legislation
/ enacted under the constitution Of 1874.
That legislation prescribes the manner in
which the recorder shall be appointed. II
recognizes the governor as the appointing
power.
GAS already shown the constitution de-
, clares in section 8, cited, the governor
S shall nominate and shall appoint. Before
l he completes his appointment the Senate
shall agree to his appointing the person
, whom he has named. 1t may prevent an
u appointment by the governor, but it can
not appoint. 1t may either consent OF
: dissent. That is tho extent of It's power.
9 There it's action ends It cannot suggest
the mime of another. If it dissent the
governor cannot appoint the person
Q named. If it consent he may or may not,
S at his option, make the appointment. II
S for any reason his views as to the proposed
n appointment change, he may decline to
make it. That option is not subject to
q, executes The commission the appointment
u is not made. Prior to that time. at his
d mere will, he may supersede ell action had
r in tho case. Marburg vs.. Madison,
! Crsnch 1877 Story's CON-, section $40
"The language Of section of the con-
stitut:on cited gives further evidence that
the governor is recognized as the appoint
s ing power. Thus he can nominate such
officers only as he is or may be authorized
E by the constitution or by laws to appoint
Again, the temporary commissions which
he may grant to fill vacancies that may
t happen during the recess of the Senate
are limited to Offices to which he may
appoint" Thus whenever and wherever
the constitution speaks of the appointing
power it recognizes it as being limited in
D the governor. Nowhers does it declare
y that the Senate can appoint.
= The Governor tho Appointing Power.
4 "The whole tenor and spirit of the con
stitution, in speaking of the power of ap
pointmeut, recognizes that it is lodged ir
Z the governor. He is charged with the
duty to take care that the laws be faith
D fully cxecuted.' The Senate may not bt
in session for year and a half at one
time. The powers of the governor are neve.
I -; suspended. He is at all times duly author
- lied to exercise tho supreme executive
= power The fact that an officer may be
removed By the dilatOry process of i'm
psachmegt creates no argument against the
. summary power of removal by the gov.
srnor. Crime, imbecllity or gross neglect
of duty may demand that an officer shall
be removed at once. The power to
protect the people of the commonwealth
5 by prompt action is wisely given to the
governor. Ia giving construction to the
will abuse that high trust.
"1n considering where the power of
removal is lodged we may draw some
| light from the Interpretation given to the
, constitution of the United States 1t
declares the president shall nominate
and by aud with the advice and consent
of the Senate shall appoint officers therein
! named. 1t is silent on the question of
removal of any officer, but declares the
: judges both of the supreme and inferior
courts shall hold the Offices during good be
havior.' As to other Offices. Congress in 1889
affirmed the right Of removal to exist in
> the president without any CO operation OF
kh4 Thof