214 Pa. 319 | Pa. | 1906
Opinion by
This proceeding is like a house built on sand, the foundation being swept away, the superstructure crumbles and falls. At the February election in 1904 Magargle was duly elected councilman from the second ward of the borough of Shenandoah, for a period of three years, commencing the first Monday of March, 1904, and ending the first Monday of March, 1907. He qualified as a member, participated in the organization of council, was assigned to certain committees like other councilmen, performed his duties and continued to act in his official capacity and assert his title to the office until May 10, 1905, when he tendered his resignation. He was a resident of the second ward and conducted his business as a merchant therein for a period of thirteen or fourteen years. He not only claimed a residence in the ward at the time of the February election in 1905, but actually voted at that election. That he was well known to and enjoyed the confidence of the electors is shown by the fact that he was elected to four successive terms of councilman in his ward. Having suffered financial reverses, it became necessary for him to dispose of his real estate, located in the ward, which he sold in the summer of 1904, and gave possession to the purchaser thereof on November 9, following. Not having been successful in renting a house, he made temporary arrangements to lodge his family at Lost Creek until a permanent place in the ward of his residence could be secured. In the meantime under an agreement with the purchaser of his property he left a bed, couch and some chairs therein so that he could make use of the house as a place to lodge until he had secured a permanent place for himself and family. Under this arrangement he made his former place of residence headquarters for the settlement of accounts, receiving of mail and transaction of business. He denied any intention of changing his place of residence, continued to act in his official capacity, attended meetings of council, and voted upon measures before that body. This was the condition of affairs when the February election of 1905 was held. At that
The relator, acting on the assumption that Magargle’s seat in council either was or would be declared vacant by reason of his alleged removal from the ward under the circumstances hereinbefore stated, concluded to fill the alleged vacancy by having himself elected at the February election. Notice of a vacancy was not given by anyone in authority so to do, and none of the political parties or organizations nominated candidates for said office at their primaries, nor was the name of the relator placed on the ballot by nomination papers in the regular way, nor did his name appear in the election proclamation. By some'method' not prescribed by law and not satisfactorily explained by the testimony, the official ballot when certified by the county commissioners contained his name and he received a majority of the votes cast at the election, which fact was certified by the election officers. This is the foundation upon which the relator relies to compel by mandamus the members of the borough council to admit him to participate in the proceedings thereof and to receive and count his vote. This court has frequently announced the rule that the remedy by mandamus is a strictly legal one, and that the relator must establish a specific right as well as a want of a specific legal remedy: Commonwealth v. Mitchell, 2 P. & W. 517; Reading v. Commonwealth, 11 Pa. 196; James v. Commissioners of Bucks County, 13 Pa. 72; Heffner v. Commonwealth, 28 Pa. 108; Commonwealth v. Henry, 49 Pa. 530.
In the case at bar the relator had no legal right to the office, the enjoyment of which he seeks to compel by mandamus, and under the rule stated this is the end of his case. There was no vacancy to be filled at the February election in 1905, and his certificate of election was a nullity and conferred no rights on him. His certificate of election cannot be recognized as valid without disregarding the- safeguards with which the legislature has protected the ballot and treating our election laws as a farce. There was only one method of testing Magargle’s right to the office when the election in 1905 was held, and that
The learned court below and counsel for appellee rely principally on the ground that when the petition for the alternative writ was filed July 3, 1905, there was a vacancy in the office, and that by reason of this fact the court could inquire into the whole question and enforce its conclusions by mandamus. It is true there was a vacancy at this time, but it was a vacancy occasioned by the resignation of Magargle in May, and this fact could not put relator in any better position than he occupied at the time of the February election. The rights of relator, whatever they be, are derived from his so-called election in February, and must be determined under conditions as they existed at that time. If he had no rights then he acquired none subsequently; if he had rights derived under that election he continued to enjoy them irrespective of what Magargle did later. He must stand or fall by the conditions existing when he received his certificate of election under which he claims the office. At that time the proper remedyto determine the title to the office as between the relator and Magargle was by quo warranto under the Act of April 13, 1840, P. L. 319; Commonwealth v. Cullen, 13 Pa. 133; Commonwealth v. Anthony, 4 W. & S. 511; Gilroy v. Commonwealth, 105 Pa. 484; High on Extraordinary Legal Remedies (1st ed.), sec. 633.
The fact that a vacancy in the office occurred some months later by the resignation of Magargle does not confer any rights upon the relator which he did not enjoy in February when he claims to have been elected. When the vacancy occurred in May by the resignation of Magargle, it could only be filled under the Act of June 1, 1883, P. L. 54, wherein it is provided “the members of the town council shall have power to fill any vacancy which may occur therein by death, resignation, removal
Judgment reversed at the cost of the appellee.