181 A. 569 | Pa. | 1935
Hannon and Murphy, prior to May 22, 1934, were members of the Board of Assessors of the City of Pittsburgh. On that day the mayor of the city removed them from office, notifying each by letter. On July 6th, when council was in recess, the mayor appointed Stoehr and Brinton as members of the board of assessors and by letter duly notified council. The mayor, July 30th, notified council of the city that he had removed Hannon and Murphy as members of the board, but that body at its meeting on July 23, 1934, did not act on the appointments made July 6th giving as a reason that there were no vacancies on the board. At a later meeting on August 27th, the mayor's letters of July 6th and July 30th were noted as "received and filed." No further action was then or has since been taken upon the nominations of Brinton and Stoehr. Both of them qualified for and entered upon the duties of their office, which they have performed since their appointment. The city controller refused to pay appellees, Brinton and Stoehr, their salaries after having made one such payment. This action for a writ of peremptory mandamus directing the controller to issue warrants for their salaries was then begun by them. Before any action on the petition was taken Hannon and Murphy, the ousted assessors, were granted leave to intervene and in so doing raised in the court below appellees' right to hold office under the appointment of the mayor. The court in disposing of the mandamus proceeding determined the title of the office of the appellees, and held that the mayor's appointment was good and that the relators were entitled to the office, and to the compensation connected therewith.
We are not called upon in this proceeding to determine the question of the right of Brinton and Stoehr to hold the office of assessors to which they were appointed by the mayor. We definitely state again that the title to office cannot be tested by mandamus (Com. v. James,
The appeals are dismissed without prejudice, costs to be paid by appellant. *65