The Act of March 7, 1901, P. L. 20, being an Act for the government of cities of the second class, provides in Article 19, Section 3, inter alia, as follows:

"Every city of the second class in its corporate capacity is authorized and empowered to enact ordinances for the following purposes," inter alia, "To create any office which they may deem necessary for the good government and interests of the city, and to regulate and prescribe the powers, duties and compensation of all such officers in accordance with this Act."

Section 5 of Article 14 of the Act of May 31, 1911, P. L. 461, provides, inter alia:

"Council shall have power to authorize by ordinance the appointment of such employees as may be necessary."

It was in pursuance of these legislative grants of power that the council of Scranton enacted an ordinance, File of Council No. 89, 1919, creating the office of city clerk and fixing the term and salary, etc., and it was in pursuance of the provisions of the ordinance so enacted that the council on January 1, 1920, elected Ellsworth Kelly, the respondent, city clerk, for a term of four years, at a salary of $2,300 per year.

It is to be noted that neither the Act of March 7, 1901, nor the Act of May 31, 1911, gives the city council any power to prescribe the terms of the officers or positions created by the council. The statute neither expressly nor impliedly limits the inherent right of the council to bring summarily to an end the term of employment of any of its subordinates.

Even assuming that a city clerk is merely an employee and not a public officer within the meaning of Article 6, Section 4, of the Constitution, the council could not make an appointment for a fixed and definite term so as to limit the power of its successors to remove summarily said appointee. Such an act on the part of council would be an attempt to limit the inherent power of its successors to remove appointive officers. "A city council cannot deprive itself, either as then constituted or as it may thereafter be constituted, of the right to exercise the power to remove summarily which is vested in it." Dillon on Municipal corporations, 5th Ed. Sec. 386; Mathis vs. Rose, 64 N. J. L.

45; Peale vs. Newark, 66 N. J. L. 265; Green vs. Freeholders, 44 N. J. L. 388.

"A municipal body in whom the appointing power is lodged cannot by appointing for a specified term, create a condition that curtails the power of appointment properly possessed by its successors. To place restrictions upon municipal bodies is a legislative function and not a mere incident of administration." Greene vs. Freeholders, 44 N. J. L. 388; Adams vs. Haines, 48 N. J. L. 25. "The legislative grant is of the right of administration only, with its essential incidents." Bohan vs. Weehawken, 36 Vroom 490.

Dillon on Municipal Corporations, 5th Ed., Sec. 466: "The exercise of the power to remove an officer is essentially administrative in its nature. Even when the city council or other removing power sits to hear charges against an officer as a cause for removal, it is an administrative body exercising administrative functions."

There is nothing in the Acts governing second-class cities which limits the right of the council to remove its subordinates. The only provision in any of said Acts in reference to the removal of officers is Article 19, Section 3, Paragraph 11, of the Act of March 7, 1901, P. L. 41, which provides that second-class cities are authorized to enact ordinances "to provide for the removal of officers of the city whose offices are established by ordinance and whose removal is not otherwise herein provided for." This cannot be construed as any limitation of the right of council to remove its subordinates by summary action. On the contrary, it is an express recognition of the right of removal which is inherent in the city council. Even though by virtue of this statute an ordinance had been passed providing a definite procedure for the removal of subordinates, said ordinance could not be construed as a restriction upon the right of removal. "It is the policy of the law to allow perfect freedom of removal as incident to the appointing power. * * *The statute of Massachusetts which provides that subordinates of the various city boards of Boston may be removed by the boards 'for such cause as they may deem sufficient and shall assign in their order for removal,' does not require that a subordinate shall be

given a hearing before the board on charges preferred against him, before he can be removed. The board may remove for any cause which, with or without charges or hearing, it deems sufficient." O'Dowd vs. City of Boston, 21 N. E. 949.

Even if the council which was in existence before the fifth of January, 1920, had enacted an ordinance providing that the city clerk it elected could not be removed until his four-year term had expired, such an ordinance could not have abridged the succeeding council's right to remove said clerk. Nothing in the statutes from which the council of second-class cities derive their powers confers any such power upon the council.

There is a clear distinction between the governmental and business or corporate powers of the municipality. With respect to the former their exercise is so limited that no action of any kind by the governing authority is binding upon its successor. McCormick vs. Hanover Township, 246 Pa. 169; Moore vs. Luzerne County, 262 Pa. 216.

CONCLUSION.

The trend of all authority is in favor of the judicial recognition of the right of removal of public officials by the agency that appoints them. This applies to all public servants except those whose tenure in office is for special reasons placed under constitutional or civil service protection. The liability to summary removal attaches with manifest appropriateness to those subordinates who occupy close confidential relations with their superiors. The relation of a city clerk to the city council is almost as close and confidential as that of a private secretary to an executive official. The city clerk is present at the meetings of the council; he hears practically all of the council's discussions, records all proceedings, votes, orders, resolution and ordinances; his records are received as the best evidence of the official acts of the council; and he is the custodian of all their journals, books and papers. To hold that any council must accept in this confidential position a clerk forced upon it by a preceding council would result in frequently bringing about a disturbed municipal situation inconsistent with the faithful and

efficient administration of civic affairs. If the action in question of the retiring council of Scranton in electing a city clerk for four years, in the closing days of that council's existence, is upheld by the courts, it will require but little ingenuity on the part of retiring councils in all municipalities, in the future, to foist upon their councilmanic successors subordinates who are personally not agreeable to those whom they are expected to efficiently serve.

The council has an inherent right to be able to assure itself at all times of its chief subordinate's personal acceptability. The welfare of the city requires the harmonious co-operation of the council and the city clerk. The language of President Grant in his first message to congress, in which he urged the repeal of the Tenure of Office Act, which restricted the chief executive's right of removal of public officers, would with slight paraphrasing apply to the situation from which arises the present proceeding: 'What trust will an executive put in officials thrust upon him and these, too, whom he has suspended? How will such officials be likely to serve an administration which they know does not want them?"

JUDGMENT.

Now, January 31, 1920, judgment is entered in favor of the commonwealth and against the respondent upon the issue joined; and it is adjudged and decreed that the respondent, Ellsworth Kelly, is not now lawfully entitled to hold and exercise the office of city clerk of the city of Scranton; and it is ordered that judgment be entered in favor of the commonwealth and against the respondent, and that the said Ellsworth Kelly be and he is hereby ousted and altogether excluded fom said office, which he now unlawfully holds, and from the exercise of the rights, powers, franchises and privileges connected therewith; and it is further ordered that the said Ellsworth Kelly be and he is enjoined and restrained from exercising said office of city clerk of said city which is now unlawfully held by him, or any of the rights, powers, franchises and privileges aforesaid, and that he pay the costs of this proceeding.

Smith vs. Shamokin Borough.

Negligence Sidewalks-Boroughs Damages.

Whenever there is conflicting evidence as to the smoothness and safety of the sidewalk, it is for the jury to decide whether or not the accident happened by reason of the sudden snowfall or whether it happened by reason of the unsafe condition of the sidewalk. A traveller must not under all circumstances avoid the use of a defective highway in reaching his destination. It depends on the character and imminency of the danger and the difficulty of avoiding it.

C. P. Northumberland County, No. 47, December Term, 1917.

J. A. Welsh, Esq. and J. F. Shaffer, Esq. for the plaintiff. R. J. Glick, Borough Solicitor, and C. C. Lark, Esq., for the defendant.

Opinion by Cummings, J., January 26, 1920:

The defendant has filed four reasons in support of its motion for judgment n. o. v. The plaintiff, J. R. Smith, on the night of December 17th, 1915, in walking over a pavement on Independence Street, in the Borough of Shamokin, fell and broke his hip. The jury rendered a verdict in favor of the plaintiff for the sum of $1,850. The negligence complained of was that the Borough of Shamokin had allowed the sidewalk upon which the plaintiff fell and was injured, to be in a condition of disrepair for such a length of time that constructive notice of the same was brought home to the Borough.

The first reason complains that the Court erred in its answer to the defendant's first point, which is: "That under all the evidence in the case the verdict must be for the defendant." The evidence shows that the pavement in question was in daily use by many people, it being located upon Independence Street, the main business street of the Town of Shamokin, the same being located in the principal business section of the town, and used daily by hundreds of people. The testimony