The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-11-08
AS TO OFFICERS PAY.
Mr.. vosburg Believes That Hocken-
berry and Davis Became Regular
Patrolmen When Appointed.

Appended is the opinion OF City SOL
icitor A. A. Vosburg on the question
submitted to him by city Controller
Esdras Howell regarding the pay Of
Patrolmen Hockenberry and Davis.
These patrolmen were nominated by
Mayor Moir August IS. but were not
confirmed by select council until last
Thursday. For forty days of the in
terim a bill was submitted for their
pay as special officers. under appoint
ment of the mayor for ten day periods.
This bill was approved by the mayor.
The controller asked the solicitor to
enlighten him as to how he should pay
them, as regular or special officers The
solicitors answer follows:
Scranton, Nov. Z, 1899.
Esdras Howell, esq, City Controller.
Dear Sir: Replying to your communt.
cation of the Sd inst, with respect to
the right of compensation of Police Of
ficers David J. Davis and w. $. Hook
enberry, l would say, that, of course
these officers cannot collect as special
and regular officers. and therefore it Is
necessary to consider, first, whether they
are entitled TO compensation as regular
police officers of this city.
In an opinion previously furnished by
me- l held that under the provisions Of
Article Z, Section !, of the act of May
%, 1888, p. l.. 277, police officers could
only be removed by the mayor, "by and
with the advice and consent of the select
council" The same rul" applies to the
appointment of police officers under the
section to which i have referred.
The mayor of the city of Scranton sent
Il communication to the ClcCt council
removing Officers Dyer and Saul, and ap-
pointing David j. Davis and Wells s..
Hockenberry as police officers, to fill the
position Of the police officers removed.
At first the select council refused to
concur in this action of the mayor. but
afterwards, on Nov. 2, 1899, action was
taken by that body concurring both in
the removal of Officers Dyer and Saul,
and the appointment of Officers Davis
and HOCkenberry.
From the time Of their removal by the
mayor, Officers Dyer and Saul did not
actually perform any work as police Of
fiCers, but the newly appointed officers,
Davis and HOckerberry, at once entered
upon the duties of their appointment, and
have served as rollce officers from that
time to the present.
Although the action of the mayor in
appointing and removing police officers
does not become fully effectual until the
advice and consent of the select coun-
ell is obtained, yet. in my opinion, the
mayor is the appointing and removing
power. As was said in the case of Lane
against Commonwealth, lO3, Pa. page 49,
"Whoncver and wherever the constitu-
tion speaks of the appointing power, il
recognizes 1t as being vested In the gov
ernor. Nowhere does 1t declare that the
senate can appoint"
With equal force can It be said that
nowhere I'm the act Of 1850, is there a pro-
vision that the select council may APP
I
TALLY the appointing and removing pow
eT, and the duties of the select council
are limited to advice and consent to such
action. This being the case, l am of the
opinion that when an appointment or re-
moval by the mayor is approved by the
lect council. il becomes operative as OF
the date when such action was taken
by the mayor; and that therefore, as
the matter now stands, the appointment
of Officers Davis and Hockcnbcrry, and
the removal of Officers Dyer pnd Saul
takes effect on the day when the mayor
appointed and removed these officers.
| may add. that am unable TO find any
case in which this precise question has
beer ruled, but upon principle, l believe
my conclusion is correct.
/ Furthermore. as stated above the ac
tual work appertaining to the of
flee of policeman has been performed by
{
now claiming compensation, while OF
ficers Saul and Dyer have performed nj
work whatever for the city during tha
! period.
! 1t is stated In ~ Amer. & Eng. Ency
| Of Law. page q, that mo claim can b,
! brought for the salary or perQuIsites o
: an Office for any period during which tn
I claimant was not actually in Office, ever
though wrOngfully hindered from Occu
. hp tn al hai bi
reward for express or implied services
And in the same authority on page 532
it Is further stated that - payment o
/ the salary to the officer de facto, how
! ever while the title to the Office is II
. controversy, but before II Is determined
Is "A good defence 10 a claim by the lega
officer 1t seems to me under the au
thorlties as applied 10 the facts OF thi
case. that Officers H0Ckcnbcrry AM
Davis are entitled to compensation from
the time they were appointed by tn
rnavOr
OF course It will he necessary for then
TO Withdraw any application for pay a
special officers.
It is true as you suggested. that a case
stated has been practically agreed upO
IN n suit brought by tho removed Of
icer. James Saul, against the city, bu
owing to the action taken by the selec
council at the last meeting of that body
il is necessary that this case-stated
should be modified and enlarged so as I
include all the facts, and this Mr.. Tor
rev has agreed to, although the forma
supplemental agreement has not vet bee
filed. cannot say when this case
stated will he argued. Mr.. Torrey an
myself asked that II be heard this weei
but the members OF the court were to
busy uron other matters TO hear 1t a
this time.
HppinF that this opinion will cover IN
points about which you inquired. I re
main. Very truly yours,
A. A. Vosburg, City Solicitor.
Improved Dining Car Service.
Nickel Plate train No. 3 leaving But
falo al ITO a. m, daily, has dinin
| oar attached serving breakfast i'm