Brinton v. Kerr

• Citation: 320 Pa. 62,181 A. 569
• Decision Date: 25 November 1935
• Docket Number: 224,223
• Parties: Brinton et al. v. Kerr (et al., Appellants)
• Court: Pennsylvania Supreme Court

181 A. 569

320 Pa. 62

Brinton et al. v. Kerr (et al., Appellants)

Nos. 223, 224

Supreme Court of Pennsylvania

November 25, 1935

Argued October 9, 1935

Appeals, Nos. 223 and 224, March T., 1935, by intervening defendants, from order of C.P. Allegheny Co., Jan. T., 1935 Nos. 3457 and 3458, in case of Charles L. Brinton v. James P Kerr et al. Appeals dismissed without prejudice.

Mandamus.

The opinion of the Supreme Court states the facts.

Order entered sustaining demurrers to answer of intervening defendants and directing that writs of peremptory mandamus issue, REID, P.J., GRAY and T. M. MARSHALL, JJ., opinion Per Curiam. Intervening defendants appealed.

Error assigned, among others, was order.

The appeals are dismissed without prejudice, costs to be paid by appellant.

C. Elmer Bown, for appellants.

H. F. Stambaugh, with him J. Willock Brown, J. Randall Thomas and Watson & Freeman, for appellees.

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

OPINION

MR. JUSTICE KEPHART:

Hannon and Murphy, prior to May 22, 1934, were members of the Board of Assessors of the City of Pittsburgh. On that day the mayor of the city removed them from office, notifying each by letter. On July 6th, when council was in recess, the mayor appointed Stoehr and Brinton as members of the board of assessors and by letter duly notified council. The mayor, July 30th, notified council of the city that he had removed Hannon and Murphy as members of the board, but that body at its meeting on July 23, 1934, did not act on the appointments made July 6th giving as a reason that there were no vacancies on the board. At a later meeting on August 27th, the mayor's letters of July 6th and July 30th were noted as "received and filed." No further action was then or has since been taken upon the nominations of Brinton and Stoehr. Both of them qualified for and entered upon the duties of their office, which they have performed since their appointment. The city controller refused to pay appellees, Brinton and Stoehr, their salaries after having made one such payment. This action for a writ of peremptory mandamus directing the controller to issue warrants for their salaries was then begun by them. Before any action on the petition was taken Hannon and Murphy, the ousted assessors, were granted leave to intervene and in so doing raised in the court below appellees' right to hold office under the appointment of the mayor. The court in disposing of the mandamus proceeding determined the title of the office of the appellees, and held that the mayor's appointment was good and that the relators were entitled to the office, and to the compensation connected therewith.

We are not called upon in this proceeding to determine the question of the right of Brinton and Stoehr to hold the office of assessors to which they were appointed by the mayor. We definitely state again that the title to office cannot be tested by mandamus (Com. v. James, 214 Pa. 319), injunction (Eddy v. Ashley Boro., 281 Pa. 4) or any other proceeding than that provided by the common law. While this court may...