The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-11-02

City Solicitor Vosburg sent in the
Following opinion to select council last
night In compliance with the resolu-
tion introduced by Mr.. Chittenden re-
questing him to state whether or not
controller Howell could be impeac ached
Tor wilfully charging bills to the wrong
appropriation and making transfers
without the consent of council.
Scranton, Pa, Oct %, 1900.
10 the Honorable the Select Council Of the CITY
Of Scranton.
"ehtlemeh: Your inquiry with respect to the
relations between the councils and the city con.
ttoer is an important one, and one that Is not
plainly defined by the statutes. The Act of 1874
en,lmeratcs the duties Of the city controller,
and states that he shall manage the fiscal affairs
OF the city sin manner required by the laws
OF this state, and the ordinances and resolutions
OF the city councils" This. of course. gives
the councils supervision and control of the man.
agement of the office. The Act of 1859 contains
provision identical with the one lust quoted.
ana his duties are set forth in detail The Act
OF 1859 also provides that the councils may fill
vacancies in the office OF city controller by
majority vote in joint convention. There is no
provision in either Of these acts for the i'm.
parchment by the councils OF the city controller.
The direction and control vested by the lcgisla.
OF the city controllers office can undoubtedly
be enforced by an application to the courts
Tor mandamus to compel obedience to sucl,
ordinances and resolutions as may be passed
by the councils.
MANDAMUS THE REMEDY.
1t has heen held in many cases that mandamus
is the proper remedy to compel the city con.
trollcr to perform duties which lie is REQUIRED
ny law to perform of ministerial nature. tSee
Deckert VS.. Commonwealth, 113 Pa. 220 Com
nonwcalth VS.. George 14S Pa, 1853. Common
wealth VS.. Philadelphia, 176 Pa, 5ss). or
course, am simply speaking in the abstract,
as have no information of any failure of the
present city controller to perform his duties.
If the city controller any other public off,
ciaI, shall misbehavc himself while in office, he
Is subject to removal under the provisions of
the state constitution, Art. 6, Sec. 4, which
provides that "All officers shall hold their offices
on the condition that they behave themselves
while in Office. and shall be removed on con.
viction of misbehavior in office, or Of anv in.
famous crime.
All officers elected by the people, except gov
crhor, Lieutenant governor, members of the gen.
eral assembly and Judges of the courts of record
learned in the law, shall be removed by the
governor for reasonable cause. after due notice
and full hearing on the address of two.thirds
of the senate"
lt will thus be that the state senate
acts court for the trial of impeachment pro.
reedings; and it has been held that 'thc con.
stitution has made the senate. like the house
OF lords. sole judge of what the law is, assum.
ing their wisdom to be equal to that of the
common law courts" e Hale's P. G. 275.)
whether this be a violent presumption or not
it is undoubtedly true that the senate is vested
with very wide discretion in matters of this |
kind. and that there is no appeal from tho
iecsion of two.thrls of that body, upon whose
address the governor moves. !
1t is, therefore, impossible to define what
misbehavor' in Office would move the senate |
o impeach public officer, as what would be |
considered an impeachabc offense by one senate |
night not by the next.
WATCH DOG OF TREASURY
The legislature evidently intended that the
1ty controller should be the Watchdog of the
dty treasury He is to audit all accounts of
IL departments. and has supervision and control
II the same. lie keeps the books showing the
property of the city, and has a record of every
preparation made by the councils.
The act says explicitly that he shall allow
10 appropriation to be overlrawn, and that he
hall countcrsign no warrant unless there is
lonev in the treasury to pay the same
1t is well settled that the controller is vested
ith certain judicial and discretionary powers
it,nklc VS.. Commonwealth, % Pa. 32s) These
overs are exercised by him, as stated above,
nder the direction and control of the city
ouncils. The councils have right to direct |
i'm to pay out Il certain appropriation in a
rrtain way. or they may direct particular
rcount to be paid from certain appropria.
on.
1t is in the absence OF explicit directions