
    Welchans versus Shirk.
    A. filed a petition for a mandamus to require B. to deliver up certain moneys and books to the relator, who claimed to be treasurer and receiver of taxes of L. city. The petition set forth that the respondent had been duly elected and qualified for that office, and liad assumed possession of the money and books in controversy in right thereof, but that subsequently he had been suspended by joint resolution of City Councils, anti that the relator had been duly appointed and qualified in his place. The petition failed to set out the cause of the suspension or any other facts in relation thereto. The respondent, in his answer, averred that he had always conducted himself honestly and faithfully in his office, and that he had given, no just cause for suspension, and further denied the validity of the joint resolution of City Councils suspending him, and of the appointment of the relator to his office. To this answer the relator demurred : Reid, that since it appeared from the pleadings that there was no just cause for defendant’s suspension, he was entitled to judgment.
    May 4th 1881. Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Zcmcaster county. Of May Term 1881, No. 87.
    Petition by William S. Shirk, setting forth that Edward Welchans, treasurer aud receiver of taxes of the city of Lancaster, was, during his term, suspended from his said office by resolution of the City Councils, and the petitioner was appointed by Counc'ls to hold said office during such suspension; that he had taken the oath of office and given bond; tiiat said Welchans refuses to surrender the books and moneys, &c., pertaining to said office, and praying that the respondent might be compelled l>y mandamus so to do.
    The answer averred that the respondent had conducted himself honestly in his office, and had never given auy cause for suspension, aud denied the right of Councils to suspend or remove him from office in the manner set forth in the petition. Demurrer-to answer. The pleadings are more fully set forth in the opinion of this Court, vnfra.
    
    The Court below, holding that the return was argumentative and inadequate, entered judgment sustaining the demurrer, and awarded a peremptory mandamus as prayed for. The respondent took this writ of error, assigning for error the judgment awarding the said writ.
    
      J. Hay Brown and Wm. Aug. Atlee, for the plaintiff in, error.
    The pleadings show no jurisdiction or power in the Connells to suspend the respondent. It is argued that such action is justified by the clause of the charter (Act of April 5th 1867, § 25, Pamph. L. 792), which authorizes the suspension of the city treasurer upon default iu his accounts, shown by affidavit of a majority of the standing committee of Council. But no such default is alleged in the petition, and the demurrer admits the fact, averred in the answer, that the respondent had at all times conducted himself faithfully and honestly in his office, and had never given canse for suspension. The title to the office can only be tried by quo warranto, and it being admitted that the respondent was legally elected, and that no. legal cause existed to’ warrant the resolution of suspension, the Court erred in awarding a mandamus requiring him to give up the moneys and books, &c., belonging to the office.
    
      
      Ghas. L. Zcmdis and D. G. Eshleman {Geo. M. Kline and' J. Z. Steinmetz with them), for the defendant in error.
    The law authorized Councils to suspend the city treasurer for a certain cause. It appears by the pleadings that Councils did pass a formal resolution, suspending him. It is not necessary to set forth in this proceeding all the details of the case, the presumption being that Councils proceeded according to law. The respondent admitted the fact of suspension, but denied its effect and validity as matter of law. Such denial is argumentative, and as the answer contains no responsive allegations which amount to defense, the demurrer was properly sustained. Mandamus is an appropriate remedy to compeldelivery to a municipal officer of books, papers, records, money and seal, by his predecessor or by an usurper: 1 Dillon on Mun. Corporations, § 239 (2 ed.); Tapping on Mandamus, 50, 94; People v. Kilduff, 15 Ill. 192.
    May 23 1881.
   Mr. Ju tice Green

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 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 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 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 oh,the record.

Judgment reversed, and judgment is now entered here on the demurrer in favor of the respondent, with costs.  