1 Pennyp. 89 | Pa. | 1881
delivered the opinion of the Court,
In this case the sole contention of the parties arises upon the pleadings. These consist of a petition for a mandamus, an answer, and a demurrer to the answer. The petition alleges that the respondent was elected treasurer and receiver of taxes of the city of Lancaster, to serve for one year from the 5th day of April 1880, subject to the right of suspension or removal as provided by law. That on January 5th 1881, by joint resolution of the City Councils, the respondent was suspended from his office, and that on January 7th following, the suspension was, by another resolution, continued until further action, and on the same day the petitioner was appointed to the same office. That the petitioner had duly qualified for the office, and that the respondent held in his possession certain moneys and books belonging to the city, which lie refused to deliver to the petitioner upon demand made, and which were necessary for the proper management of the financial interests of the city. A mandamus is asked to compel the delivery of the money and books referred to. To this petition the respondent filed an answer in which he stated his own election to the office in question, that he gave bond which was approved, took the prescribed oath, and entered upon the duties of the office, but denies that the Councils had the right to remove him. He further alleges that he at all times conducted himself faithfully and honestly in his office, and never gave any cause for suspension therefrom; tha ’he was informed of the passage of the resolution of suspension, but avers that it was inoperative and void; and that' the attempted suspension was entirely illegal and of no effect. He
The Court, holding the answer insufficient, gave judgment against tlxe respondent, and awarded a peremptory writ of mandamus. In this there was clear ei’roi\ The demurrer admitted the truth of the facts set out in the answei-. Both tlxe petition and the answer concuiTed in asserting the due election of the respondent to the office, and the answer averred the subsequent qualification and entry by the respondexit upon the duties of the office. He was, therefore, at the time the petition was filed, the lawfully elected, qualified and acting officer of the city. Thus holding his office lie could not be ai-bitrarily deprived of it. No right to deprive him of it except according to law is alleged, but no suspension or removal in accordance with tlxe law is in any manner averred in the petition. Nothing more is asserted than an actual suspension by resolution. Copies of the resolutions are appended to the petition, but they contain no mention of any cause of removal. Moreover, the answer alleges that the respondent at all times behaved himself ixx his office faithfully, honestly and carefully, and never gave cause for suspension from the same. The demurrer admits this to be true, and yet the Court gives an adverse judgment.
An attempt is xnade to defend the action of the Court by referring to the twenty-fifth section of the city charter (Act of April otlx 1867), which confers authority to ¡remove the tx-easurer. The -clause in qxxestion is in the following words: “The said treasurer shall verify his cash account at least once in every month, to the satisfactioxx of a standing committee of Councils, and upon the affidavit of a majority of such committee to any default tlxex’ein, the said treasurer may be suspended from office, and another appointed until the f ux’ther action of Councils,” It will be seen at once that the light to suspend only arises upoxx the affidavit of a majority of the committee being made to a default by the treasurer in the verification of his account. But no such affidavit is alleged, nor any default by the treasurer. Where then do the Councils get the power to suspend ? The fundamental facts upon which alone that power is based are neither alleged nor proved. More than that, the answer affirmatively avers that the respondent never gave any cause for sixspension, and the demnrrer admits this to be true. In order to sustain the judgment of the learned Court below, we would be obliged to presume the existence of a cause of suspension with
Judgment reversed, and judgment is now entered here on the demurrer in favor of the respondent, with costs.
