316 Pa. 429 | Pa. | 1934
Opinion by
By the Act of March 5, 1906, P. L. 63, and its amendments, it is the duty of the county commissioners of the several counties to appoint, for terms of one year, two registrars for each election precinct or ward in cities of the third class. Such appointments are to he made so as to give representation to the two major political parties in the precinct, and for that purpose the act provides, in section two,
The sole ground upon which the court below based its decision was that, under the statute, the petition filed with the commissioners by the party representative on plaintiff’s behalf was a mere suggestion or recommendation, which the commissioners might, if they so chose, entirely disregard, the appointment of registrars being a matter wholly within their discretion. This position cannot be sustained. The act states that persons nominated for appointment must appear before the commissioners at a hearing, of which one week’s notice shall have been given, and satisfy the commissioners of
However, for a reason not alluded to by the court below, the relator cannot obtain in this proceeding the relief which she seeks. The principal object of her petition is to require the respondents to act upon her nomination to office. While this is a proper subject of mandamus, as the statute places a specific duty upon the commissioners to follow that procedure, this remedy is not available to petitioner under the present circumstances. Regardless of its validity, the appointment of Angelina Lewis was made by those who alone had the power to do so, and she is now the de facto incumbent of the office of registrar of the second precinct of the third ward of the city of Sharon. The relator cannot, therefore, by this action force respondents to appoint another to that office. It is well settled that mandamus will not lie to compel the installation of one person in an office of which there is already a de facto incumbent (Com. v. Perkins, 7 Pa. 42; Caffrey v. Caffrey, 28 Pa. Superior Ct. 22; Daugherty v. Fippinger, 177 Ill. App. 522; French v. Cowan, 79 Me. 426; State v. Gasconade County Court, 25 Mo. App. 446; see Com. v. Comrs., 5 Rawle 75; Com. v. James, 214 Pa. 319; People v. Trustees of Saratoga Springs, 54 Hun (N. Y.) 16; High, Extraordinary Remedies (3d ed.), section 49), for to do so would be to try the latter’s title to office in a proceeding to which he is not a party. A fortiori the other relief asked — that respondents be ordered to revoke
Essentially the instant proceeding is a contest as to the possession of a public office which the de facto incumbent claims under color of right. Eelator has mistaken her remedy; in such case mandamus does not lie. The exclusive remedy in this situation is by an action of quo warranto (Williams’s App., 312 Pa. 477, and cases there cited; see Hutchinson v. Goshorn, 256 Pa. 69), which the relator, as one entitled to have her claim to office considered before another is appointed, would be a proper person to maintain: Com. v. Meanor, 167 Pa. 292; Com. v. County Comrs., 19 Pa. Dist. Rep. 553. And we unhesitatingly declare that the record before us presents a state of facts which, were this an action of quo warranto against Angelina Lewis, would fully warrant the entry of a judgment of ouster.
For the reasons given above, the order of the court below dismissing the petition for a writ of mandamus must be affirmed.
The order of the court below is affirmed at the cost of appellees.
This section of the Act of 1906, as amended by the Act of May 25, 1907, P. L. 251, and the Act of May 14, 1925, P. L. 693, reads as follows:
“The names of two suitable persons to be registrars shall be suggested to the county commissioners, by petitions duly filed for each precinct or ward, by the party representatives of the two leading parties of the precinct or ward. The petitions shall be signed by five electors of the district, and shall set forth the names, addresses, occupations, and political affiliations of the persons suggested. The signers of the petitions shall swear to the truth of the facts set forth therein. The petition shall remain on file, open to the public inspection, at least ten days before the persons named therein shall be appointed, except in cases where a vacancy occurs in th|e office of registrar within ten days of a registration day, when the appointment can be made without such delay. If no petitions axe filed, the county commissioners may appoint without regard to party. No appointment shall be made unless the person who desires to be appointed personally appears before the county commissioners and satisfies them of his qualifications.' In case of reappointment, however, it shall not be necessary for him to appear before them.
“At least one week’s notice of the time and place of the examination of the suggested registrars shall be given by the county commissioners in the daily press; and any elector may appear, either in person or by counsel, and object to the qualification of any appli*431 cant. If the persons nominated are found not to be properly qualified, the county commissioners may decline to appoint them; and the party authorities of the precinct or ward may then suggest another name, or other names, for the said place or places.”