249 Pa. 109 | Pa. | 1915
Opinion by
The Borough of South Greensburg is a municipality not divided into wards and is therefore entitled to seven councilmen. The term of , office of four of the members was due to expire the first .Monday of January, 1914, and their successors were to be elected in November, 1913. The unexpired term of another, which had two more years to run, was also to be filled at that election. In July, 1913, a Sixth member, Richard Clyde, signified his intention of removing from the borough. He did not, however, formally present his resignation to council until November 15th, at which time the relator was chosen to fill the vacancy, and on December 2,1913, took the oath of office and assumed his official duties. In the
At the organization of council the six candidates so declared elected, who are the defendants in these proceedings, were recognized as councilmen to the exclusion of the relator. The question as to who should fill the unexpired terms, including that’claimed by the relator, was decided by drawing lots in accordance with the provisions in the Act of May 20, 1913, P. L. 268. The relator then filed this writ of quo warranto,, claiming defendants were not entitled to hold office, and that he was entitled to a seat in the council by virtue of his appointment to fill the vacancy created by the resignation which was presented to and accepted by council subsequent to the November election.
' There were five vacancies to be filled at the election. Four by reason of expiration of term of office, and one for an unéxpired term of two years. For .these five vacancies there were six candidates, and, in addition to this the ballot bore no designation, as to which of the candidates were to be voted for the full term, and which for - the unexpired, term. The trial judge held the election-of the sixth person to be void and: that the five
It is contended that quo warranto is not the proper remedy but that relator should have followed the procedure prescribed by the Act of May 19,1874, P. L. 208, for the disposition of contested election cases, which requires that proceedings be begun by petition within thirty days after the electión, and therefore the relator had iio standing in February, 1914, to question the validity of the election. It seems only necessary to state this contention to show that it is not applicable to this case. The contention overlooks the fact that relator was not a candidate for election but was subsequently appointed to fill a vacancy which occurred after the élection. He had no knowledge of any irregularity in the election nor could he know that a successful candidate at that election would subsequently contest his right to a seat in council left vacant by a resignation that did not take place until after the election. • The presence of six names on the ticket was not due to a mistaken attempt to fill a supposed vacancy, but resulted from a mistake on the part of another councilman and the borough secretary as to the date of expiration of the former’s term óf df:
Section 4 of the Act of May 22, 1895, P. L. 109, gives the members of council power “to fill any vacancy which may occur therein by death, resignation, removal from the borough, or otherwise, until the next annual election for members of town council, when such vacancy shall be filled by electing a qualified citizen to supply the same for the balance of the unexpired term; provided, the qualified voters shall designate on their ballots that the person or persons therein named are voted for to fill an unexpired term.”
The question is whether failure to follow the requirements of the proviso of the Act of 1895 quoted above invalidates the election. This question was before this court in Commonwealth v. Durkin, 245 Pa. 507, where six councilmen were to be elected, two for unexpired terms and four for full terms, but the ballots failed to state which of the candidates were to be voted for, for the unexpired term, as required by the Act of 1895, and the election was held illegal and the candidates ousted from office. This court said: “By Sec. 4 of the Act of May 22,1895, P. L. 109, it was necessary for the qualified electors to designate on their ballot that they voted for two persons named thereon to fill unexpired terms. This was not done and it was impossible to ascertain from the ballots cast who of the six who received the majority of the votes cast had been elected for the unexpired
There was no error in holding that Richard Clyde continued in office until his resignation was presented to and accepted by councils, all of which took place subsequent to the November election. By the Act of April 3, 1851, P. L. 320, Sec. 19, borough officers serve until their successors are duly elected and qualified. This is a general rule as to all public officers, Commonwealth v. O’Neal, 203 Pa. 132. There can be no appointment of a successor to fill a vacancy until the fact of its existence is formally brought before council.
The mere fact that Richard Clyde stated unofficially and prior to the November election that he intended later to remove from South Greensburg did not create a vacancy. He might change his mind and remain a resident of the borough. It is actual resignation or removal that creates a vacancy in an office, not a statement of an intention to resign or remove. But even if it were held otherwise, it would not relieve the situation, and correct the defect which existed in the. ballot voted by electors at the election. The above view of the case makes it unnecessary to discuss the other question raised.
The election of the six defendants is declared invalid and judgment of ouster directed to be entered excluding them from the office of councilmen of the Borough of South Greensburg so far as such election is concerned. The portion , of the decree affirming the right of the relator to. hold his office by virtue of his appointment to fill the vacancy created by the resignation of Richard Clyde is affirmed.
