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

Judge r. w. Archibald handed down
an opinion yesterday in the case of ex-
Patrolman james Saul against the city
of Scranton. Mr.. Saul and stephen
Dyer were removed from the police
force by Mayor James Moir in August,
but the select council failed to concur
with his honor until about six weeks
later. his right to remove an officer
without giving some adequate reason
for his action being strongly ques-
toned by a number of members of
council.
Both Saul and Dyer claimed pay for
the period intervening between the
time they were removed and the con-
firmation of the mayors action by
council. The city refused to pay and
suit was brought by City Solicitor
Nosburg on behalf of the city and ex-
City Solicitor James II. Torrey on be-
half of Saul agreeing upon a state
ment of facts which was presented to
the court as the basis for an opinion.
Judge Archbald's opinion, which is
given in full herewith, states emphati-
cally that the mayor has no right to
remove an officer without the consent
of the select council. The opinion fol-
lows:
In August last the plaintiff was
serving by due appointment as one
of the policemen of the city cf S,ran-
ton at salary of $7o q month. On the
18th of that month he was notified
by the mavor that he had been Ie-
moved and another person nut In his
place. and the same day tn, mayor
ts..l a.. IL
ton. At a meeting Of the council held
September 7th the communication of
the mayor was read ard referred to
the committee on police, and on Sep
tember 21st the committee reported up
on 1t adversely and the council, adopt
ing the report, refused to concur in his
action.
ENTITLED TO RECOVER.
For the time which the plaintiff
served in August he was paid $42.50.
but he has received nothing since. and
although he has reported. for duty
daily and been willing to act. his
superior officers on the police force re-
fuse to assign him to duty and have
taken from him his star and other
insignia of office. This suit Is brought
for $3.50, the balance of salary due
for August, and SIS, the whole Of that
for September, amounting in all to
S1O7.50. On the showing made we think
the plaintiff Is entitled to recover.
BY Act of % May. 1889, article Z, Sec
ton 1, p. l.. 81. relating to policemen
in cities of the third class, 1t is provid-
ed 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 any
and all vacancies shall be filed" The
power Of suspension or dismissal. like
that of appointment, is therefore to be
exercised not by the mayoI alone on
his own responsibility but in conjurc-
tion with the select council whose ad-
vice and consent are necessary to APP
prove and complete it,; so Is it ordained
by the plain terms of the statute which
has full control of the subject. and
that is the end of the matter: he can
no more remove alone than he can APP
point alone. and the council, having
refused to concur in the present in
stance. the plaintiff continue police
man of the city and was entitled to
compensation accordin gl.'.
1t is argued, however, that police
men are public officers. and therefore
come within the clause of the consti-
tution which provides that. appointed
officers. other than judges of the courts
of record and the superintendent of
public instruction, may be removed at
the pleasure of the power by which
they shall! have been appointed To
this we cannot agree. The trouble is
with the first part of the proposition;
policemen are not public officers any
more than firemen, watchmen. clerks
or the many other subordinate agents
and officials of the municipality. Com
monwealth vs.. Stokel. 20 w. n. c. 3lo;
Russell VS.. WilliamspOrt, Pa. Co. CT.
129; Gift VS.. Allentown, 81 Leg. Int
3322
NO GENERAL FUNCTION.
They. exercise no general public
functions, and are not a constituent
part of the corporate municipal organ
ization. nor Is any special duty I'M
posed upon or entrusted to them by
law; they merely assist in preserving
the peace and good order of the com"
munity in obedience to and under the
direction of the ordinances of the city.
This no doubt is of great importance.
but ii does not give them the rank
of public officers. They are servants
not of the public at large but Of that
limited part Of 1t comprising the NUM-
cipality which they patrol.
1t is said, however, that policemen
of the city of Scranton are made pub
lie officers by the explicit provisions Of
it's charter. the Act Of April I. 1863.
+. l.. 1873, having extended to this city
the first two sections Of the Act Of
March 90, 1865 p. l.. 725. relating to the
borough of Wilkes-B Barre. This in
deed semcs TO be the case. the second
section of the Act so extended orovid-
ing that, the chief of police and his
subordinates shall in all pro-
ceedings in the courts of this common
wealth be deemed and held to be public
officers"
But let us see to what that leads. by
section /, clause 4, of the Wilkes Barre
Act the burgess and town council
(whose powers by the extending Act
are vested in the select and common
council of Serantom are authorized
among other things "To select and
APPOINT chief oc police of said bor-
ough city TO hold office during the will
and pleasure of said council
and 10 appoint or reject such subordin-
ate policemen as from time to time
may be named to the council by such
chief Of police. and such subordinate
policemen to remove from office at
their pleasure"
If the Act is in force in Scranton
In the face of the provisions of the
general act of 1889 relating to cities of
the third-class already quoted, then
the mayor has nothing whatever to do
either with the appointment or the re-
moval Of the police of the city, that
subject being committed to the select
/ and common council who have eXclu-
sive and entire control over it, and
in this view the removal of the plain
tiff stands without the least show Of
authority to support 1t.
CAN'T DIVIDE THE ACT.
You cannot set up the mayor under
| the Act of 1889 as the appointing pow
er and then appeal to the Wilkes Barre
Act to make out that the plaintiff was
| a public officer and so removable un-
| der tha copstitutinp of the pnwar ~ iph IN