267 Pa. 310 | Pa. | 1920
Opinion by
The City of Carbondale is a city of the third class. By the third section of article IX of the Act of June 27, 1913, P. L. 568, its council, composed of four members- and the mayor, was “authorized and directed to elect a city clerk, whose term of office and compensation shall be fixed by ordinance.” In pursuance of this authority and direction, the counsel, on February 17, 1914, passed an ordinance, duly approved, the first section of which is as follows: “The council shall elect on the first Monday in April, 1914, and every four years thereafter, by a majority vote of the members a city clerk, who shall serve until his successor shall be duly elected and qualified.” On April 1,1918, by a resolution duly passed, the city council elected Horace G. Likeley city clerk for a term of four years from that date. After filing his bond, as required by the statute, and taking the prescribed oath of office, he entered upon the discharge of his duties, made important’ by act of assembly. At a meeting of the city council held January 5, 1920, a resolution was adopted declaring the office of city clerk vacant, and at' the same time Thomas A. Boles was elected city clerk for a period of four years. After he had duly qualified, he made demand upon Likeley for the keys of the office and for the books and papers which had come into his possession as city clerk. Upon Ms refusal to- comply with this demand, a suggestion for a quo warranto was filed in the court below, in pursuance of
While the statute authorized and directed the city council to “elect” a city clerk, and the resolution of April 1, 1918, declared that the appellant had been elected such clerk for the term of four years, he was not an elective officer of the city, as that term is ordinarily understood. “An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the act of casting and receiving the ballots, counting them and making the return”: 15 Cyc. 279. Section 1 of article VIII, of the Act of June 27, 1913, now under consideration, provides that the city council shall “elect” a city treasurer, and in Commonwealth ex rel. Hughes v. Grit-man, 255 Pa. 277, it was held by the court below, in an opinion approved by .this court, that the word “elect,” as used in the section referred to, was to-be interpreted as meaning “appoint.” In so holding, it was said: “We are not unmindful of the meaning generally conveyed by the word ‘election.’ The term carries with it the idea of a choice by the body of voters in a municipality, or an expression of the popular will expressed at the polls. An appointment, on the other hand, may be made by a single person, or by a body such as a city council. Although the Act of 1913, supra, states that the council of each city shall ‘elect’ a city treasurer, it ought to be conceded that such an election is in law an appointment.” By the Act of April 25, 1907, P. L. 103, the council of a borough is authorized to eiect a solicitor, and in Ulrich v. Coaldale Borough, 53 Pa. Superior Ct. 246, it was held that an election of a solicitor by a borough council was but an appointment by it. Speaking through one of its members, the court said: “But is this
The assignment of error is overruled and the judgment is affirmed.