The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-01-22


Questions Raised on the Demurrer.
The City Clerk Acted Within His
Rights in the Premises.
Judge II. w. Archibald handed down
in the matter of the demurrer to the
return to alternative mandamus In
the case of the Barber Asphalt Paw
ing company against Martin T. La
velle, city clerk. The opinion follows:
by the act of June, 1893, p. J.. 343, the courts
OF common pleas in this state arc empowered to
issue writs of mandamus "to all officers and mag.
istratcs elected or appointed in for the respcc
tive country or in or for any township, district
or place within such county" The wording Of
this statute is practically the same as the act of
June IL, 1886. r. H. 026, which preceded it, and,
while cities are not expressly named in either
jurisdiction to compel city officers to perform
a ministerial duty has been freely assumed under
them. There u.s. therefore, no question as to our
authority over the respondent. provided he is
such an officer as the state contemplates, and
Notwithstanding the earnest argument Of the
learned counsel who represents him, we think
that he is. The contention is that he is not an
officer, but mere empoyc, the creature of coun-
prescribe the duties which he is to perform. But
TO this we cannot agree.
The city clerk as definite city official is ex.
prcssly recognized by the act OF May %, 1882
T. J.. 21I, relating to cities Of the third class in
at least two places, in section S, article 6, where
it is provided that all ordinances may be proved
10y his certificate under the corporate seal and
that within one month after their passage they
shall be recorded by him in book provided for
that purpose and again in section g, article :.
where he, with the clerks of the different
branches OF the councils and other city depart
ments, is excepted out OF the subordinate officers
OF the city whom the mayor, with the advice and
consent Of the select council is authorized to ap.
point
STANDING ESTABLISHED.
So tar as concerns the city of Scranton his
standing is established by ordinance Of July IS,
1879, which, as amended March Is, 1854, pro-
vidcs that the select and common councils in
joint session shall elect bicnnially in April an
officer to be called the city clerk who shall act
as clerk Of such council, keep a journal of their
acts, record all votes, orders, resolutions and
ordinances made and passed by the council,
whether by concurrent vote or in convention;
from time to time furnish the chairman Of each
joint committee with the names of members Of
the committee; furnish the city controller with
a certified copy of all votes of councils requiring
the expenditure Of money! furnish TO all heads
of departments and the chairmen of all commit
tees certified copies OF such votes or resolutions
as relate TO their respective departments com
mttcc: act clerk of the joint standing COM
mittec Of the councils and keep journal of their
proceedings; keep in his Office the assessment
books of the city; prepare the tax duplicates for
the city treasurer; act as clerk Of the board Of
revision and appeal and keep journal oI their
proceedings, and when any assessment is abatcd
or rcmttcd issue rihcatc to the person en-
titled thereto of the amount rCmitted; perform
such other duties as councils may prescribe and
such clerical duties belonging to the Office Of the
city controller or city solicitor as are not other
wise defined and superntend all printing
dcrcd by councils Laws and Ordinances pages
l37, 13S Edition Of 1874. BY concurrent rcsolu-
tion of the councils; approved by the mayor Aug.
%, 1884 mot found in the authorized compilation
Of the city ordinanCes) he is given the further
important duty Of preparing, signing and issuing
all city warrants drawn on the treasurer.
LARGELY CLERICAL.
While these duties, as suggested are largely
clerical and are fixed by ordinance or resolution,
by which also they may be changed, they are Of
such character and extent and SO essential in and
involved in the orderly conduct of the city gov
ernment that they constitute the clerk public
officer Of the city and not merely an employee or
apent. The term public officer, says the encyclo-
pedia, 'cmbraCes the idea of tenure, duration,
emOlumcnt and duties and has respect to per-
mancnt public trust to be exercised in behalf of
government and not to a merely transient,
siona or incidental employment. person in the
service Of the government who derives his posi-
ton from duly and legally authorized election
or appointment, whose duties are continuous in
their nature and defined by rules prescribed by
government, and not by contract, and consisting
Of the exercise ot important public powers, trusts
or duties as a part Of the regular administration
OF the government, the place and duties remain
ing though the incumbent dies or is changed, and
who receives his compensation out OF the public
treasury is a public officer and his charge or en-
ployment is public office. ~ Am. Encyclopedia
OF Law, First Edition, page 1888.
The city clerk in our Judgment is officer
OF this description. While the incumbent may
hold his place at the pleasure OF councils. and
to that extent be under their dictation and con.
straint the Office cannot be done away with nor
its duties modified or controlled except by due
legislative action on the part of councils, ap-
proved by the mayor. Having this degree of
pemanencc, with duties defined and entering
so materially into the conduct of city affairs, in
the eyes of the law it is public Office, and the
person who fills il is public officer who can be
reached by mandamus, as is now proposed.
is NOT DISCRETIONARY.
The duty, moreover, which the respondent has
| refused to perform is ministerial and not dis.
| crotionary one. The statute provides that no
money shall be paid out of the city treasury cx-
| cept upon appropriations made according to law
and warrant drawn by the proper officer in
pursuance thereof Act May %, 1889, article 4,
| section 7, Z. L. 277, by the concurrent resOlu'
| ton OF Aug %, lNsi, already quoted, the person
| in the city OF Scranton who is to prepare and
| issue such warrants Is the city clerk. lie must
| Of course, be authorized in any given case by the
| necessary preceding steps, but when they have
| been duly taken there is nothing for him to dc
| but TO draw up warrant and issue IL to the
| party entitled thereto. lie has discretion tC
exercise and cannot allow or withhold it accord
ing to what may seem to him proper in the
| premises.
1t is not for him to watch the appropriation
and see whether they have been exceeded or not
| the city controller is charged with that duty ant
| there is no place for any other to exercise it
| Neither is it for him to say in what order clsim
| against the city made payable out OF the specia
fund shall be presented paid. In the presen
instance the plaintiffs bill has been passed b'
councils and warrant directed TO be drawn an'
| this action has received the official approval o
the mayor, The bill has also been audited b!
the city controller and certified by him TO tn
clerk, so that all The prerequisite steps hav
been taken It is not now, therefore, ,ior tn
respondent to hold up the payment because, a
which exhaust the fund appropriated for judg
= - 4 NJ