The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-08-25


without "the advice and consent of
select council"
BY Clauses Is and II of Section 20, of
the Act of May %, 1874, =. l.. 24O, pro-
viding for the incorporation and gov
ernment of cities of the third class, city
councils are authorized ito provide for
removing officers of the city for mis-
conduct whose offices are created and
made elective by this act and shall
have power to create any office that
they may deem necessary for the good
government and interest of the city,
and to regulate and prescribe the pow
ers and duties and compensation of all
officers of the city" Under the power
thus conferred the councils of the city
of Harrisburg, on November 26. 1855,
passed an ordinance establishing a
highway department. and ordaining
that the chief officer of the department.
should be styled commissioner of
highways" and that he should be
nominated, and. by and with the ad-
vice and consent Of the select council,
appointed by the mayor to hold his
office for three years, and until the APP
pOintment and qualification of his sue
cessor, and that said commissioner
shall be removed by the mayor for
misconduct or neglect of duty
FACTS RECITED.
on July 23 1898. William II. Lynch,
the respondent, was duly appointed by
the then mayor commissioner of high
ways for a term of three years, and.
having duly qualified, entered upon the
duties of his office.
on April II. 1899, the successor in
office of the mayor by whom the re-
spondent had been appointed. notified
| him in writing as follows: by author
| ity i'm me vested, | hereby remove you
| from the office of highway commits
| siOner to date from the 10Th inst. The
| cause of removal is inability misCon-
duct and neglect of duty" The re-
spondent refused to surrender the
| office; thereupon, on application to the
| attorney general a writ of quo war
| rantowas applied for and issued to test
| his title
Article &. Section 1. Of the COnstitu-
| tiOn, declares that appointed officers,
| other than judges of the courts of rec
| ord, and the superintendent of public
| instruction, may ba removed at the
| pleasure of the mower by which they
| shall have been appointed and the
| relatOr claims that the mavor is en-
| powered by this clause of the Consti-
| tuition to remove the respondent al
| pleasure. Respondent contends that
|
| not an office within the meaning and
purview Of said constitutional provis-
| ION" and the question now to he de-
| Cided is. whether the mayor has power
| to remove the RESPONDENT at pleasure
JUSTICE GREEN'S OPINION.
We think the answer is to be found
| in Houseman VS.. Commonwealth. 100
| Pa. 222. In that case a collector of de-
| moved by the receiver of taxes, the APP
| pointing power under the Act of March
| "a. 1870, =. l.. 5i4, and the right to re-
| move at pleasure was held by the
| Supreme court to be conferred bv the
| clause of the Constitution above
| quoted Mr.. Justice Green. in deliver
J Ing the opinion of the court, said, al
| page 229: 1T Is argued by the very
| able counsel for the plaintiffs in error
that the removal was an invalid eXer-
| else of power for the reason that the
| power of removal does not extend to
| municipal officers. 1t is conceded thai
| this result can only be reached by re.
| striCtinE the plain words of the Con
| stitutiOn. In their literal sense, it can.
| not be doubted that the words deSCrip.
| tive Of the officials subject to remova
| make no distinction between the state
| county and municipal officers, and dc
| lIltiuut tntlll all. he HlSt clause O
the fourth section provides that all Offi.
GERS shall hold their offices on the con
| dition that they behave themselves
| well while in office, and shall be re
| moved on conviction of misbphavior in
office or Of any infamous crime. The
| remainder of the section directs tina
| appointed officers may be removed a
the pleasure of the power appointing
them, and elected officers by the gov
ernor on the address of twO-thirds o
the senate. The whole language of III,
section is very general We see moth
ing in it which authorizes a distinc
tion between state, county and munici
| pal officers. The only distinction mad,
in the section is between officers ap
pointiVe and elective. But that dis
tinCtiOn is common to state and count,
officers, as well as to those who ar
municipal And at page 23l, he say
further.
1T seems to us that we would h
making, rather than constituting. tn
Constitution if we should say that ap
pointed municipal officers should no
be removable at the pleasure of tn
power which appointed them, when tn
plain, unambiguOus words of the in
strument positively declare that all ap
pointed officers shall be subject to sue
removal. If we could thus declare
is difficult to perceive any good reaso
why we might not, with the same pro
| priety, hold that appointed county Ofl
GERS should be exempted from thi
method of removal In truth, there /
no distinction appearing in the section
other by words or differences, in eithe
the territorial or functional Characte
of the offices held by the persons VIII
are subjected to it's operation. For Il
to make such a distinction would be
work of creation, not Of interpreta a
ton"
ARGUMENT OF COUNSEL.
Counsel for respondent have argue
with great ingenuity that this decisio
does not apply in this case, for tn
reason that the power to appoint
conferred on the mayor by an ord
nance of council, and not by an act {
| assembly, and that the mayor take
the power to appoint subject to III
condition that such commissioner sha
be removed by the mayor for miscor
duct or neglect of duty" which, il
argued, implies a want of power to re
move otherwise.
1t is true the power to appoint Is cor
feTred by the ordinance, but the al
thority TO pass the ordinance depend
upon the Act of 1874, and therefore tn
, legislative act is the ultimate source
the power to appoint as well as Of III
existence Of the office.
The suggestion that the commissions
of highways is a petty officer an
therefore. not one Of those intended b
the clause in the Constitutional co
rect as to the facts met by what
said by Mr., Justice Green in the ilous'
) | man case, at page $50: There a.
r petty officers in each class, so that I
I force can ne given to the suggestlc
e that municipal officers We're not il