The opinion of the Court was delivered by
Green, J.
In this ease 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 said 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 he 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 due 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 ; that 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 further alleges that he was, on January 7th, 1881, and, up to the time of subscribing the answer still was, treasurer and receiver of taxes of Lancaster city, and that the petitioner was not legally appointed to the office, and was not such treasurer and receiver. To this answer the petitioner filed a general demurrer, and the respondent filed a joinder. The Court, holding the answer was insufficient, gave judgment against the respondent, and awarded a peremptory writ of mandamus. In this there was clear error. The demurrer admitted the truth of the facts set out in the answer. Both the petition and the answer concurred in asserting the due election of the respondent to the office, and the answer averred the subsequent qualification and entry by the respondent 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 the office, he could not be arbitrarily deprived of it. No right to deprive him of it, except according to law, is alleged, but no suspension or removal in accordance with the law is in any manner averred in the petition. Nothing more is asserted than 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 in 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 gave ■ an adverse judgment. An attempt is made to defend the action of the Court by referring to the 25th section of the city charter (act of April oth, 1867), which confers authority to remove the treasurer. The clause in question is in the following words : “ The said treasurer shall verify his cash account at least once in every month, to the satisfaction of a standing committee of councils ; and upon the affidavit of a majority of such committee to any default therein, the said treasurer may be suspended from office, and another appointed until the further action of councils.” It will be seen at once that the right to suspend only arises upon 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 the power is based, are neither alleged nor proved. More than that, the answer affirmatively avers that the respondent never gave any cause for suspension, and the demurrer 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 without any proof, without even an allegation to that effect, and, in the face of an assertion by the respondent that there never was such a cause, which assertion the petitioner admits to be true. The mere statement of this proposition is enough. Argument is quite unnecessary. We have no authority to make any such presumption in such a state of the record.
Judgment reversed, and judgment is now entered here on the demurrer in favor of the respondent, with costs.