198 A. 143 | Pa. | 1938
These are quo warranto proceedings brought at the relation of the district attorney of Allegheny County to determine the right of Nathan Kaiserman, Joseph Di Cenzo, James A. O'Mara and Frank Anzenberger to occupy the offices of councilmen in the Borough of McKees Rocks. To the suggestion answers were filed which met a demurrer by the district attorney. On the issue thus raised the court gave judgment of ouster against respondents, from which they appeal.
The Act of July 18, 1935, P. L. 1290, Sec. 2, which amends The General Borough Act of May 4, 1927, P. L. 519, by adding Sec. 905 (53 PS Sec. 12875), provides: "Right of Council to Declare Seat of Councilman Vacant for Failure to Attend Meetings. — If any person, having qualified as member of council, shall neglect or refuse to attend two successive regular meetings, unless detained by sickness, or prevented by necessary absence from the borough, or if, in attendance at any meetings, shall neglect or refuse to act in his official capacity as a member of council, the remaining members of the borough council may declare his office as member of council vacant."
The borough council consisted of nine members. Frank Gerger, a member, failed to attend two successive meetings of the council, as did George J. Leck and *198 Michael Pravlochak, Jr. Five other councilmen declared the offices of Gerger, Leck and Pravlochak vacant, and elected Kaiserman, Di Cenzo and O'Mara in their places.
The act provides that "the remaining members of the borough council" may declare the office vacant. In no instance were all the remaining members present when action was taken, never more than five; for this reason the proceedings to vacate the offices were invalid. In Wells Twp. School District'sDirectors,
As we observed in dealing with the School Code, the act now before us is likewise highly penal and should be strictly construed. We therefore conclude that none of respondents was validly elected to office.
The election of Anzenberger was likewise invalid. Baker, who was a member of council, resigned. When this was done, only five qualified members out of the *199
nine were present. This left only four, less than a quorum. These four could not act to fill the vacancy. The argument is advanced that Baker, although he had resigned, was still a member because the Borough Act provides in section 804 (53 PS Sec. 12674): "Persons elected to borough offices shall serve until their successors are elected and qualified." Obviously, this cannot apply to a member of council who has quit the body by resigning. In Com. v. Krapf,
Judgments of ouster affirmed at appellants' cost.