Commonwealth v. Douglass

1 Binn. 77 | Pa. | 1803

The opinion of the court was delivered by

Ye ates J.

^(a) The words of the 17th sec. of the act of 23d Sept. 1791 are that “ it shall and may be lawful for the mayor and “ two aldermen of the city of Philadelphia and two justices of il the peace for the county of Philadelphia to appoint inspectors “ of the prison of the city and county of Philadelphia on the 1st u Mondays of May and November in every year, and on any “ other days when vacancies shall happen in the said office by a death resignation or otherwise.” It appears to a majority of the court, that the legislature intended to vest in the mayor a certain legal discretion, which should be exercised in a iair, equal, and reasonable manner. The question is not, whether thémayor is bound to give formal notice to all the aldermen ol the city, and justices of the peace of the county, when and where the appointment shall be proceeded upon: but whether when he has been called upon by persons of that description whom the law vests with a power of appointment, and who are desirous of exercising that right, he can legally refuse to give them information of the place and hour of appointment, and preclude them from giving their sentiments upon the subject. We are of opinion that he is not justified by law in this refusal; and thus proceeding to a nomination at an unusual hour and place is not such an exercise of his discretion as the law will warrant; because this would be in effect an assumption of the whole power by the mayor, which cannot be collected from the words of the law. One having a discretionary authority to appoint a fit person to a public office appointing himself, seems a solecism in terms; and it cannot be deemed the fulfilment of his duty. We 'perfectly concur with Mr. Recorder that whatever right the mayor had in this appointment, it was improper to exercise it in the manner he has done; and therefore think good and legal grounds have been shewn to file the information prayed for by the relators, in the nature of a quo warranto.

Brackenridge J. I concur in this opinion only so far as touches the case of John Douglass,

Rule absolute.

(a) Ship fEN C. J. was absent, from indisposition.