The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-09-15
THE SCRANTON TRIBUNE-FRIDAY SEPTEMBER 15 1899

the Constitutional provision suggested.
He is not a public officer in the sense
in which that term is used in the Con-
stitution of Pennsylvania"
In the case Of Russell VS.. Williams
port, 0 Pa, County Court Reports, 129,
Judge Metzger held that police officers
are not public officers within the mean
ing OF the Constitution.
The same doctrine Is held In New
York state. See Shawley VS.. Brooklyn,
30 Hun, 1896.
1t is true that It was held by Judge
Weiss In the case of Commonwealth
VS.. Rutherford, Dist. Reps, 349, In
ferentially at least, that policemen are
public officers within the meaning Of
the Constitution, but that question
only arose incidentally, the main point
at Issue being the constitutionallty OF
the Act of 1897, prohibiting the removal
of honorably discharged soldiers. The
other case which has been referred to
as sustaining the same point, viz, the
decision by Judge Simonton In Com
monwealth VS.. Lynch, 8 Dist. Reps.
BAY, only decides that the street COM
missioner is public officer within the
Constitutional provision.
NOT A PUBLIC OFFICER.
1t seems then, from the weight of
authority, that police officer cannot
be regarded as a public officer within
the meaning of the Constitution. If
then, the removal of police officers is
not controlled by the Constitution, we
must look to the next highest author
ity, viz, the legislative enactments of
this state. Referring to the Act of
May %, 1889, +. L., page 277 we find
that 1t has two apparently contradic-
tory provisions.
BY Section 4, Article Z, II is provided
that "the mayor shall nominate, and
by and with the advice and consent Of
the select council appoint, suspend, or
dismiss the said policemen, any or all
of them, and in like manner all vacan-
cies shall be filled" BY Section 6, Of
the same article, it is provided that
the mayor shall nominate, and by and
with the advice and consent of the
select council appoint all subordinate
| officers of the city, whose offices are
created by ordinance, except the city
clerk, etc"
Adopting the familiar rule of con-
| struction that an Act of Assembly
must be so constructed, il possible, that
all parts of 1t may stand, am of the
| opinion that Section refers to those
| officers of the city whose offices are
| created by ordinance and not by law;
for example, the chief of the fire de-
partment. building inspector and street
| commissioner; while Section 4 refers
| specifically to police officers, which
office is fixed by law instead of by
| ordinance.
This being the case. simple analy-
sis of Section 4 makes it plain that the
consent of the select council must he
obtained to make operative the suspen-
sion or dismissal of policemen, as well
rs the appointment of them by the
| mayor
This construction of that section was
held by Judge Metzger in the case of
| Russell VS.. Williamsport, to which I
have referred, in the following Lam
guage: "He the policeman) can be re-
tained or dismissed at any time by the
mayor, with the consent of the select
council. with or without cause"
OPINION IN BRIEF.
In brief my opinion is:
l. That under the Constitution the
mayor is the appointing power, and
therefore has the right of removal,
without consulting the select council.
| of all public officers, |. e., all public
| officers within the meaning of the Con-
| stitution, such as the street commits
sioner and the chief of the fire depart
ment.
.. That police officers are not public
| officers within the meaning of the Con-
stitutional provisions.
| 3. That under the Act of 1889, police
officers can only be removed by the
| mayor with the advice and consent of
| the select council.
Upon the question of salary, there is
| not much to be said In my opinion,
when a police officer is removed by the
! mayor, and this removal is confirmed
by the select council it becomes oper-
| ative as of the date of his removal by
| the mayor, and he is not entitled to
| salary from that time. Hence, if the
| select council concur in the removal of
| Officers Dyer and Saul, I do not think
| they can recover any compensation
from the city from the time they were
| removed by the mayor.
| On the other hand, the officers ap-
| pointed by the mayor who have been
| acting as such, and are therefore de
| faCtO officers, viz, Officers HOcken-
| berry and Davis, as soon as their APP
| pointment is confirmed by the select
council, will be entitled to pay from
| the time of their appointment by the
mayor. This opinion is based in part
upon the apparently well settled propo-
sition of law, that where a municipal
| ity pays the acting or de facto officer,
| pending any litigation with respect to
| his title to the office, it is not liable
| to nay 1t over again. even though his
title to the office should be at any
future time found to be invalid, and
another, or de jure officer, be installed
| in his place.
| See 10 American and English Ency-
clopaedia of Law, page 532, and cases
| there cited.
OF course, should the select council
fail to approve the action of the mayor.
complications will arise. which it is not
now necessary to consider.
Hoping that I have made mvself
clear as to the respective powers of the
mayor and select council in the matter
of the removal of police officers, and as
to their right to compensation, I re-
| main, Very truly yours,
A. A. Vosburg, City Solicitor.