The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-09-15

City solicitor NOsburg In lengthy
opinion submitted to the police COM
mittee of select council last night, de-
cides that Mayor Moir's removal of
Patrolmen Saul and Dyer is ineffective
without the consent of select council.
Just as was held by eY.City Solicitor
j. II. Torrey in the Anthony Walsh
case.
The committee took no action on the
matter, deciding to wait until the reg
ular meeting next Thursday night.
Mr.. Vosburgs opinion is most exhaus-
tive, clear and concise. lie deals with
the whole matter of the mayors APP
pointive power and it will doubtless
long stand as an authority for the guild
ance of the city. The opinion follows In
full:
To the Honorable, the Members of the
Select and Common Council of the
City of Scranton, and the Police Com
mittee:
Gentlemen: Your inquiry of the 7th
inst, as to the power of the mayor to
remove patrolmen without the consent
of the select council, raises an import
ant and difficult question, and one that
is worthy of careful consideration, and
this must be my excuse for a somewhat
lengthy opinion.
CONSTITUTIONAL PROVISION.
AS there has been some misappre-
hension as to the extent of opinions
furnished by me heretofore, / wish to
state the distinction between the offices
with respect to which those opinions
were filed, and the office of patrolman.
1t seems perfectly clear to me that such
officers as the chief of the fire depart
ment, street commissioner and build
ing inspector may be removed by the
mayor at his pleasure, with or with
out cause, and without any action upon
the part of the select council.
This opinion is based upon the fact
that the Constitution of this state pro-
vides that Appointed officers other
than judges of the courts of record, and
the superintendent of public instruc-
tion, may be removed at the pleasure
of the power by which they shall have
been appointed" In the case of House.
man VS.. the Commonwealth, 100 Pa.
page 222, this provision was held to
apply to municipal officers provided
they were not petty officers. And Il
seems to be settled by the case of Lane
VS.. Commonwealth, 103 Pa, page 4S1
that the select council is no part of the
appointive power so far as public Off
GERS are concerned. In that case 1t
was held that the governor was the
appointing power, and hence had the
power of removal, although Article A.
Section s, of the Constitution declares
that he shall nominate, "and by and
with tho aHX-ipn aud Of W.
third of all the members of the SEN
ate appoint" certain officers therein
named.
The power conferred upon the senate
being similar to that conferred upon
the select council, | have no hesitation
in applying that decision to a munich
pality, and therefore holding that so
far as public officers" are concerned.
the mayor is the appointing power, and
therefore has the power of removal.
The test then as to whether this con-
stitutional provision applies to a par
ticular officer is whether or not that
officer is a public officer" within the
meaning of the constitutional provis-
ion to which | have referred.
1t is difficult to determine I'm some
cses just what constitutes a public
officer" within the meaning Of the Con-
stitution. Judge Simonton held that the
street commissioner was a public Off
Ger, and could therefore be removed by
the mayor, because he has very i'm
portant duties to perform; and in the
case of Houseman VS.. the Common
wealth, cited above, the receiver Of
taxes of philadelphia was held to be
such public officer because he was
placed in position of trust, handling
large sums of the public money.
SOME PUBLIC OFFICERS"
The same reasoning would apply in
the case of the chief of the fire depart
ment and the building inspector both
of whom are placed in positions Of
trust, handling the public money to
some extent, and directing public work.
But when we come to consider whether
a police officer is such a public officer
as was meant by the trainers of the
Constitution, when they referred to
public officers" we find much conflict
among the authorities.
Judge Biddle of Philadelphia, said in
the case of the Commonwealth against
Stokley, 90 w. n. c. 315, I'm both Of
the cases cited to us, one of a munich
pality and the other Of a state officer,
the ground upon which they are de-
cided to be public officers, under the
Constitution, was that they were the
recipients of the money Of the public.
1T is very clear that no policeman
can he brought within this category.
He is simply a ministerial officer, with
no power to judge Of the matter to, he
done, but bound to obey and carry out
the mandates of a superior. His prin-
cipal function is that of a peace officer
the citizens. His appointment and re-
mOVal is therefore necessarily diamond