The herald., 1893-09-27
FLEMING NOW THE TREASURER,
Judge Shaw Settles the Much
Disputed Point.
A Law Suit Which Was a Model for
Its Brevlty.
The Muddio Finally straig ghtened Out.
The Arguments ON All Sides.
The Judge Delivers an
Oral Opinion.

LIS utCtbbitf iuI upecuy nuJuobitoho
OF the county treasurer muddle was
4 realized by all parties concerned after
the institution OF suit by Mr.. 7. ].
p Fleming, appointed, to be put into pos
session Of the Office.
La view OF the desire to have q decis-
ion as to who is treasurer az soon as
possible. Judge Shaw agreed to a hear
ing late yesterday afternoon.
1t consisted OF arguments by different
counsel, and Judge Shaw settled the
matter without taking it under advise-
ment. deciding that Mr.. Fleming is
treasurer.
The facts in the case we're few aud
easily stated. Treasurer j. De Barth
Ehorb left the state for the east in July
10 undergo treatment in Philadelphia.
He had 30.dav's leave of absence,
which was extended to 90 days. This
expired and tho supervisors appointed
Tnamas J. Fleming treasurer to fill the
vacancy caused by Mr.. Shorb's absence.
lie filed his band, which was approved,
and he qualified. Assistant Treasurer
Tiernan and the various deputies in
banks holding county money re-
fused 70 turn over the books, records
and money, on the ground that tha APP
poinrmept was not legal. and Mr.. Flem-
ing brought the proceedings indicated.
The principal contention OF Mr.. Tier
nan and the others was that the office
should have been iudicialIy declared
vacant by u court proceeding and that
the law was not self acting.
The answer by the defendants was
filed before the hearing was begun. 1t
was quite volrminous and was prepared
by George III. Smith who represented
the defendants. District Attorney Dill
ion represented the attorney general,
Mesers. McLachlin and York. Mr..
Tiernan and Judge W. P. Gardiner. the
clearing house, members of which were
Interested.
In the answer the defendants denied
i. that Treasurer Shorb remained absent
from the state without the consent OF
the legislature or the board OF super
visors from July 14th to September 18Th,
but during that time was absent With
the consent of the supervisors, in pur-
suance OF law enacted by the legisla-
ture.
They denied that on the 18th OF Sep
tember the Office OF county treasurer be-
came vacant until the appointment OF
7. j. Fleming. They admitted that on
that date and ever since Mr.. Shorb has
been absent from the state, and without
leave OF the supervisors and Legislature.
The defendants further admitted that
the supervisors made the order. but de-
MED that they appointed Mr.. Fleming
in legal manner, or that he is duly ap-
pointed and qualified.
- h> ~ -
ehorb, but eaid that he was compelled
gerous and serious illness, in order to be
treated by competent physicians in
Philadelphia; that at the time of his
absence ne hoped to be able to return
within 80 days. but was obliged to OBJ
tain an extension to so days, and cannot
yet make the journey home. They said
that the duties of the office have been
we'll performed by Mr.. Tiernan, deputy
treasurer, and the other deputies as
subordinate deputies, and no ioss has
occurred to the county by reason of Mr..
Ehorb's absence.
In support OF the position taken by
the defendants, Mr.. Smith made a brief
argument to the court. He quoted the
sections OF the political code which
prescribes the times when an Office be-
comes vacant, and that where an Office be-
comes vacant after the absence OF the
officer from the state for more than go
days without permission Of the legisla-
ture.
He said that this should not be con-
strued to mean absence without an un-
lawful intent. He held that the legisla-
ture did not mean to deprive an officer
OF his Office for an innocent act. He did
not think IL was possible that the legis-
lnture intended to deprive the state OF it's
option to say when such an absence
created q vacancy. Such an act might
work forfeiture but not vacancy. He
did not consider that the legislature in
tended to make this provision self-acting.
He referred to cases in which it would
operate as hardship to the officer, as
in case where an accident had hap
pened Hfter an officer left the state
which prevented his return within the
60 days. St
At the close of Mr.. Smiths argument
Mr.. York briefly presented his views in
opposition. He contended that the pro-
ceeding was not q criminal one but
civil, and the court was not passing
upon the wisdom Of the legislature but
upon the proper construction OF the act.
l1o urBou tuat bu6 pidin lnteub OF the act
was to cover just such q case as this
and provide for just such a contingency.
de claimed that the law clearly de-
clared the Office of county treasurer
vacant and that the appointment was
4 In every respect legal.
Judge Gardiner, representing the
clearing house, stated that it was the
desire Of all parties to set any doubts at
rest, and he thought the action as to Mr..
&horb should be dismissed, as no process
gould be served on him, and there
should be no question in case OF judg-l
lpent. This was agreed to.
Judge Shaw then announced his de-
Gision orally, He hald that the act
dearly indicated what it meant, and
shat In this case it declared the Office
vacant. The law was framed for the
public good and not for any individual.
He did not consider that any judicial
proceeding was necessary to declare the
efice vacant and overruled the demur-
Yer to the complaint. Right to amend
che answer being waived, be gave judg-
irent for plaintiff, directing that the
deputy treRsurers turn over the books,
records and money, and that Treasurer
Office.