Com'lth ex rel. Ryan v. Haeseler

Apr 9, 1894

Appeal, No. 303

Versions:28 A. 1014

161 Pa. 92

1894 Pa. LEXIS 639

Opinion by

Mr. Justice Williams,

The purpose of the act of February 17, 1859, is clearly expressed in its title, which is “ An act to secure a stricter accоuntability of certain public officers in Schuylkill county.” It enumerates and lays additional requirements upon the township, county аnd school district officers concerned in the levy, collection, safe-keeping and disbursement of public money. A рroviso in the sixth section declares that “ No one person shall be eligible to hold more than one township, borough оr school district office at one time, except the offices of township treasurer and collector as hеrein provided.” The proviso is limited in its operation to the offices reached by the provisions of the statute, viz., such as are concerned in the levy, collection, safe-keeping and disbursement of the county, township and school mоneys. The provisions of the school law are therefore unaffected, except as to the eligibility of a school director to hold at the same time the office of school treasurer. This is distinct^ forbidden in the act of 1859, so far as the county of Schuylkill is concerned. The president of the school board is necessarily a director, and his selectiоn to preside at the meeting of the board gives him no additional control of the school funds.

The same thing is true of the secretary. He records the ae*96tion of the board, but his office does not change in any manner his relation to the school funds, whether arising from taxation or from state appropriations. The treasurer, on the other hand, is, by virtue of his office, the custodian of all moneys belonging to the district. The directors authorize the drawing of orders upon him as treasurer, and they audit and settle his accounts. If he is a member of the board of directors, he has a voice in the settlement of his account. He is the accountant, and a part of the body to which he accounts. This was possible under the general school law, but it is prohibited by the act of 1859.

The next question raised is that of jurisdiction. The appellant contends that the court of common pleas has no authority over the officеrs of a school district upon the writ of quo ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍warranto. It is unnecessary to examine and expound the statutes, to show that the jurisdiction exists, for the question has been repeatedly decided. In Field v. The Commonwealth, 32 Pa. 478, the title of the county superintеndent of common schools was in question, and the jurisdiction of the common pleas to determine the title on quo warranto was distinctly asserted. In Gilroy’s Appeal, 100 Pa. 5, the controversy was over the title of persons claiming to be school directors. The proceeding was by bill in equity. The court held that the remedy by quo warranto was not only an adeqxiate, but the exсlusive one, and that equity would not take jurisdiction in such a case. The same doctrine was again asserted in Gilroy v. The Commonwealth, 105 Pa. 484. The question cannot now be considered an open one. The appellant was therefore in the рroper court, and upon proper process ; and the court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍correctly ruled that he could not lawfully hold аt the same time the offices of school director and treasurer of the school district.

If the act of 1859 had made him inеligible to appointment while holding office as a director, the appointment made in violation of the law would have conferred no authority and the judgment of ouster would result necessarily from such a state of facts. But the prohibition оf the act of 1859 is against the holding of both offices at the same time. The appointment was not void, but when it was made it beсame the duty of the appointee to determine which place he would resign. He had the right to' hold either, but not both. In DeTurk v. Com., *97129 Pa. 151, this principle was recognized. DeTurk was a postmaster. While holding the office he was elected to the office of county commissioner. The two offices were incompatible. DeTurk made no election, but continued to discharge the duties of both offices, until the writ of quo warranto was served upon him. He then elected to hold the office оf commissioner, and accordingly resigned the post office. In his answer he set up these facts, and we held that he had the right to elect, and, having made his election before judgment of ouster, he could rightfully hold the office of county commissioner. In this case no election was made because under the advice of counsel it was believed that the offices were not incompatible. When that question was determined against him we think the appellant should have been allowed to elect which of the incompatible offices he would resign. If he declined or neglected to make such еlection it would have been the duty of the court to determine which he should be compelled to relinquish.

No other error appears upon this record except that in the form of the decree; and this can be corrected, withоut injury to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the rights of either party, at this time. We accordingly enter the decree that should have been made by the court bеlow:

This case came on for final hearing upon petition and answer, and was argued by counsel, whereupon on consideration thereof it is ordered, adjudged and decreed:

First, that in the county of Schuylkill the same person cannot hоld at the same time the offices of school treasurer and school director.

Second, that the respondent, whо has heretofore claimed the right to hold both of said offices at the same time, is required to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍elect forthwith, upon notice of this decree, which of said offices he will hold, and file his election with the prothonotary.

Third, that thereupon judgment of ouster shall be entered herein, in accordance with such election.

Fourth, that upon the neglect or refusаl of the respondent to make such election, judgment of ouster be entered in accordance with the petition of the relator.

The costs to be paid by the respondent.

The record is remitted that the foregoing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍decree may be entered.