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

ell, City Solicitor Vosburg submitted
the following opinion In response to a
question from councils rs to the valid
ity of abolishng the offices of assist
ant fire chiefs, while the inCumbents
are serving out a term for which they
were duly chosen;
Scranton, Pa, Aug. 16 1899.
To the Honorable, the Members of the
Select and Common Council of the
City of Scranton,
Gentlemen: with respect to your in
quiry as to the validity of the ordi-
nance (file of common council, No. 81,
1S99) abolishing the Office Of assistant
fire chiefs, and providing for the ap-
pointment of an assistant chief,I would
say:
That, If am correctly informed, the
present district chiefs or engineers,
were appointed by the mayor of this
city, and that an appropriation of one
hundred dollars each has been made
for the present fiscal year, which, of
course, is not yet ended. The question
raised then in regard to the validity of
this ordinance Is, whether or not these
offices can be abolished during the tis-
cal year, and these appointive officers
thus be virtually removed from office.
As there has been considerable discus
sion with respect to the power of the
mayor to remove appointed officers at
his pleasure, l desire to state the law
upon that point as | understand it.
RIGHT TO REMOVE.
The right to remove an appointive
officer by the authority which appoint
ed him, is we'll settled by the case of
the Commonwealth VS.. Houseman, 100
Pa, 229. But the suggestion has been
made that. as the appointment of the
mayor must be confirmed by the select
council, this body, in conjunction with
the mayor, is really the appointing
power. To this ! cannot agree.
In the case Of Lane against the Com
monwealth, 103 Pa, page 4Sl, the Su-
preme court decided that the governor
had the power to remove the city re-
Corder of the city of Philadelphia, not
withstanding the provision of the Con-
stitution, Article 4, Section s, which
declares that he shall nominate land
by and with the advice and consent of
two-thirds of all the members of the
in specified, etc. Mr.. Chief Justice Mer-
cur in delivering the opinion of the
court in that case, said: Thus, when
ever and wherever the Constitution
speaks Of the appointing power, it rec
ognzes it as being vested in the gov
ernor. Nowhere does ii declare that
the senate can appoint
The whole tenor and spirit of the
Constitution. in speaking of the power
of appointments. recognizes that it is
lodged in the governor" Applying this
decision to a municipality. l have nc
difficulty in coming to the conclusion
that the mayor is the appointing power,
and hence has the power of removal
However, in determining the validity
of this ordinance. ii is not necessary to
base an opinion upon the power Of re-
moval vested in the mayor. The
municipality itself, by the proposed or
dinance, goes further than to merely
remove the appointed officer, and abol-
ishes the office itself, which it had
previously created. 1t is we'll settled
that the Legislature has power to abol-
ish an office during the term of the
holder. DOnohugh VS.. Roberts, IL w
n. c., 1S6.
WHERE POWER is VESTED.
And the same power is vested in the
municipality as TO the offices created
by it.
The law upon this point is we'll stated
in Vol 19 of the American and English
Encyclopaedia of Law, page 562, r. X.
Municipal offices may be abolished
extended, altered, or vacated by the
municipal authority by which they
We're created, or by the legislature by
which the corporation was itself ere.
| ated, and where the Legislature has
| conferrer upon a municipality the au,
thority to create offices, it may abolish
offices so created by il even though the
term Of the incumbent has not ex
PRED" 10 American and English En-,
cyclopaedia of Law, page 562, r. X.
Therefore in my opinion the proposed
ordinance is valid, and may be legally
enacted. Very truly yours,
\. A. Nosburg, City Solicitor.
Council simply ordered the opinion re
| ceived and filed
Mr.. Calpin started a long discussion
by introducing a resolution directint
the mayor to inquire by what right tn,
Scranton Railway company is layins
tracks on Arthur avenue.
He was up that way a few days ago
he said, and saw that the track aloni
| Arthur avenue had been almost com
pleted. He understood the mayor ha,
| stopped this work Just as it was be
| gun, and he also recalled the fact tina
| Mr.. Keller at the last meeting had in
| troduced an ordinance granting tn
| company permission to proceed witt
the laying Of the track,
CAUSED HIM TO WONDER.
The fact that this ordinance was onl!
well started on its way through coun
ellis, caused him to wonder how tn
| company had secured it's right to pro
ceed in the face of the mayors order
| to the contrary.
| President Keller, by way of expiana
tion, stated that the railway compan!