
    Commonwealth v. Sulzner.
    
      School law—Treasurer of school board—Appointed officer—Removal.
    
    The office of treasurer of a school board is an appointed office within the meaning of the constitution, and the occupant is removable at the pleasure of the board. '
    Argued Jan. 29, 1901.
    Appeal, No. 166, Oct. T., 1900, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1900, No. 630, awarding writ of mandamus in case of Commonwealth ex rel. The Board of Directors of the Home-wood Subschool District, in the 21st Ward of the City of Pittsburg v. A. F. Sulzner.
    Before McCollum, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Petition for mandamus to compel payment of money to a school district.
    From the record it appeared that the board of directors of the Homewood subschool district, in the city of Pittsburg, at its organization in June, 1900, chose the respondent treasurer of the board. At a subsequent meeting this action was reconsidered and another person chosen in. his place.. The respondent refused to turn over the money in his hands to the person chosen as his successor and these proceedings were commenced to compel him so to do. The court awarded a peremptory mandamus directing the defendant to pay over the funds in his hand to the board of directors, or to his successor in the office of treasurer.
    
      Error assigned was the order of the court.
    
      
      Johns Mo Cleave, of Watson $ Me Cleave, for appellant.
    The treasurer of a school board having charge of public moneys raised by public taxation is an officer within article 6, section'4, of the constitution: Com. v. Evans, 74 Pa. 124; Houseman v. Com., 100 Pa. 222; Com. v. Morrisey, 86 Pa. 416.
    The word “ appoint ” cannot be found to be used in connection with the selection of any officer by the people, or by any body composed of representatives of the people.
    Both the constitutions of Kentucky and Indiana, in the use of these terms, almost identical with the constitution of Pennsylvania, have been construed finally in accordance with our contention : Speed v. Crawford, 3 Metc. (Ky.) 207; State v. Harrison, 113 Ind. 434.
    As the defendant does not hold his office of treasurer by appointment, he cannot bo removed except for cause: Marbury v. Madison, 1 Cranch, 137; Ewing v. Thompson, 43 Pa. 372; Field v. Com., 32 Pa. 478 ; Page v. Hardin, 8 B. Monroe (Ky.), 672; Foster v. Kansas, 112 U. S. 201; Mechem on Public Officers, sec. 454; Hallgren v. Campbell, 82 Mich. 260.
    The court has no jurisdiction in this form of action. The proper remedy of the plaintiffs is quo warranto and not mandamus : Com. v. Supervisors of Colley Twp., 29 Pa. 121; Heffner v. Com., 28 Pa. 112; High on Extraordinary Legal Remedies, secs. 49, 50, 53 ; Rex v. Ward, 2 Strange, 893; King v. Harris, 3 Burr. 1423; Com. v. O’Day, 6 Kulp, 177; Com. v. Perkins, 7 Pa. 42; Gaul v. Commissioners of Philadelphia, 2 Parsons, 220; St. Louis County Court v. Sparks, 10 Mo. 120; Hagner v. Heyberger, 7 W. & S. 104; Updegraff v. Crans, 47 Pa. 103; Gilroy’s Appeal, 100 Pa. 5 ; Goldsworthy v. Boyle, 175 Pa. 246; Com. v. County Commissioners, 5 Rawle, 77; Com. of Kentucky v. Dennison, 24 How. 66 ; High on Extraordinary Legal Reme? dies, secs. 9, 10, 14, 83, 64; James v. Commissioners of Berks County, 13 Pa. 72; Overseers of Porter Twp. v. Overseers of Jersey Shore Borough, 82 Pa. 275.
    
      J. MeF. Carpenter, for appellee.
    That the power to appoint carries with it the power to remove, cannot be questioned: Constitution of Penna., art. 6, sec. 4; Houseman v. Com., 100 Pa. 222; Com. et al. v. Lynch, 8 Pa. Dist. Rep. 347; Com. et al. v. Rutherford, 8 Pa. Dist. Rep. 349; People v. City of Brooklyn, 149 N. Y. 215.
    
      .- There'is fto contract relation between the parties which requires the consent of both to rescind it: Kenny v. Hudspeth, 36 Atl. Repr. 662; Thomas v. Scranton Poor Dist., 4 C. P. Rep. 155.
    Even though the appointee has entered on the discharge of hi.s duties at a fixed salary, and the office is abolished by the legislature, no action for salary will lie for an unexpired term: Com. v. McCombs, 56 Pa. 436, approved in Com. v. Weir, 165 Pa. 284.
    March 11, 1901:
   Per Curiam,

We are satisfied that the court below committed no error in entering the judgment appealed from, and that the office of treasurer of a school board is an appointed office within the meaning of the constitution.

Judgment affirmed.  