Bowers v. Reitz

• Decision Date: 24 May 1934
• Docket Number: 83,85
• Citation: 172 A. 707,315 Pa. 310
• Parties: Bowers v. Reitz, Appellant
• Court: Pennsylvania Supreme Court

172 A. 707

315 Pa. 310

Bowers v. Reitz, Appellant

Nos. 83, 85

Supreme Court of Pennsylvania

May 24, 1934

Argued March 21, 1934

Appeals, Nos. 83 and 85, March T., 1934, by defendant, from decree and from sentence of C.P. Jefferson Co., Jan. T 1934, No. 2, in equity, in case of Harvey G. Bowers v Richard E. Reitz. Decree granting a preliminary injunction (No. 83, March T., 1934) is affirmed. Decree entered on the attachment for contempt is affirmed with the provision that, upon compliance with the commands of the injunction of the court below, the two days which remain to be served on the sentence imposed on defendant shall be remitted.

Bill in equity for injunction. Before DARR, J.

The opinion of the Supreme Court states the facts.

Preliminary injunction granted. Defendant adjudged guilty of contempt of court. Defendant appealed from order granting preliminary injunction, and from sentence for contempt.

Errors assigned, inter alia, were orders, quoting record.

The decree granting a preliminary injunction (No. 83, March Term, 1934) is affirmed. The decree entered on the attachment for contempt is affirmed with the provision that, upon compliance with the commands of the injunction of the court below, the two days which remain to be served on the sentence imposed on defendant shall be remitted. Costs to be paid by appellant.

W. N. Conrad, for appellant.

Lavelle A. Wilson and Raymond E. Brown, for appellee, were not heard.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. CHIEF JUSTICE FRAZER:

Defendant appeals from the granting of a preliminary injunction by the lower court and from sentence for contempt of court for his refusal to heed its mandate. Both appeals will be disposed of in this opinion.

The facts are not in dispute. Harvey G. Bowers, plaintiff, was duly elected treasurer of Jefferson County, for the term of four years, commencing the first Monday of January, 1934, to succeed defendant Richard E. Reitz, who, by appointment, was filling an unexpired term ending on that date. A certificate of election was issued to Bowers. He took the oath of office January 5, 1934, and on January 9th filed the required bonds, which were duly approved. He then called upon defendant to turn over to him the office quarters provided by the county for use of the county treasurer, with their official appurtenances, which defendant refused to do, claiming that, by reason of having failed to qualify for his office at the beginning of the term, plaintiff had forfeited his right to the office, and that, under the Act of June 9, 1931, P.L. 401, section 51, ^[*] it was his (appellant's) duty to continue to act as county treasurer until the first Monday of January, 1936. On plaintiff's motion, the court below issued a preliminary injunction, enjoining defendant "from exercising any and all acts as treasurer of Jefferson County" and commanding him to deliver to plaintiff possession of the office facilities provided by the county and the accompanying appurtenances. Upon service of the writ on defendant, he stated he would not comply with its requirements, and, in answer to a rule to show cause why he should not be adjudged guilty of contempt, he by his counsel reiterated, at a hearing held by the chancellor, that he did not intend to obey the order. Thereupon the court imposed a jail sentence, for contempt, of five days, refusing plaintiff's demand for a trial by jury. On allowance by this court of a supersedeas as to the order of attachment for contempt, defendant was released at the end of three days.

On appeal from a preliminary injunction, we will look only to see if there were reasonable grounds for the action of the court below, and will not discuss the merits of the case generally: Solar Electric Co. v. Brookville Boro., 300 Pa. 21, 23, and cases there cited. The undenied fact that Harvey G. Bowers was duly elected county treasurer and held a certificate of election is prima facie evidence that he is entitled to the office, and, having qualified by taking the oath of office and filing the required bonds, is the county treasurer, at least so far as these proceedings are concerned. Plaintiff's statement that his delay in qualifying was due to circumstances not under his control is accepted by defendant and the court below without objection. The court below was of opinion plaintiff's title to the office was so clear that it was not involved in these proceedings, and that plaintiff's delay in qualifying did not, under the law, constitute a failure to qualify (Anderson's App., 215 Pa. 119; Com. ex rel. v. Schrotnick, 240 Pa. 57, 60) and, further, did not result in an automatic forfeiture of his office (46 C.J. 962, section 95); consequently injunction was a permissible remedy to protect relator in the exercise of the duties of the office (Kerr v. Trego, 47 Pa. 292, 295; and see Scott v. Sheehan, 145 Cal. 691, 79 P. 353, 354; Allison v. Massey, 108 Okla. 140, 235 P....