Commonwealth ex rel. Lewis v. Paine

• Citation: 207 Pa. 45,56 A. 317
• Decision Date: 12 October 1903
• Docket Number: 313
• Parties: Commonwealth ex rel. Lewis v. Paine, Appellant
• Court: Pennsylvania Supreme Court

56 A. 317

207 Pa. 45

Commonwealth ex rel. Lewis v. Paine, Appellant

No. 313

Supreme Court of Pennsylvania

October 12, 1903

Argued February 24, 1903

Appeal, No. 313, Jan. T., 1903, by defendant, from judgment of ouster, C.P. Lackawanna Co., May T., 1902, No. 402, on quo warranto in case of Commonwealth ex rel. William R. Lewis District Attorney of Lackawanna County, v. W. A. Paine. Reversed.

Quo warranto to oust respondent from office of director of the poor. Before EDWARDS, P.J.

The case was heard upon answer, suggestion and demurrer.

The court in an opinion by EDWARDS, P.J., entered judgment of ouster.

Error assigned was the judgment of the court.

The judgment of ouster is reversed and the writ of quo warranto dismissed.

John F Scragg and Everett Warren, with them Joseph O'Brien, for appellant.

I. H. Burns and Charles E. Oliver, for appellee.

Before DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

By special act of April 9, 1862, Dunmore and Scranton boroughs with Providence township of Luzerne county were authorized to erect a poorhouse; four persons, two from Scranton, one from Dunmore, and one from Providence township were named as commissioners to purchase the necessary real estate and erect suitable buildings; the same persons were also appointed directors of the poor of Providence. By the the same act it was enacted that the directors should hold office until March election in 1865, at which time Providence township was to elect one person to serve as director of the township for the term of three years; the remaining three directors were to hold over until the borough election in Scranton, when each of the two wards of the borough was to elect one person to serve as director for three years; the remaining director was to hold office until the spring election of 1867, when the borough of Dunmore was to fill his place by election. By section 20 of the act it was provided that the boroughs of Hyde Park and Providence might either of them elect to become part of the district. By act of 1864 entitled "An act to divide the borough of Scranton into two wards," a portion of the south ward was created the middle ward and authorized to elect at the next spring election and every three years thereafter one person as director of the poor of Providence. On March 16, 1866, a supplement to the act of 1862 was passed; this act provided that any vacancy which should be created by the original act, whether created by expiration of term of office or otherwise, should be filled by appointment by the judge of the court of common pleas.

Under this supplementary act the directors have ever since been appointed by the president judge of the court. The village of Hyde Park was incorporated into a borough by special act of May 4, 1852; the act provided for the first election on third Tuesday of April, and on second Tuesday of March every year thereafter. By act of April 23, 1866, the city of Scranton was incorporated, embracing the borough of Hyde Park; the borough's identity as a municipal organization was obliterated. By a supplement to this last act, April 22, 1879, the name of directors of the poor of Providence was changed to Scranton poor district, and by act of January 7, 1881, the different parts of the district were consolidated into one. On November 28, 1889, a vacancy occurred in the office of poor director and W. A. Paine, this defendant, was appointed to fill it by the president judge of Lackawanna county, which county, formed out of Luzerne, embraced the territory constituting the poor district. The appointment specifies that defendant is appointed for that part of the district formerly Hyde Park borough, for the term expiring the third Friday of March, 1902, or, until his successor be qualified. He is now filling the office under his appointment. James A. Evans, the relator, claiming that the office is elective, was voted for and elected at the February election of 1902, for a term of three years, for that part of the district which was at first the borough of Hyde Park. At his instance the district attorney had a writ of quo warranto issued to oust defendant from the office; defendant answered denying plaintiff's right and averring his own; plaintiff demurred to answer. The court below sustained the demurrer, and entered judgment of ouster against Paine. He now brings this appeal.

The first question to be decided is, whether the office of poor director of Scranton poor district under the legislation noticed is appointive or elective. If elective the judgment of the court below was right and should be affirmed; if appointive it was wrong and should be reversed.

From the date of the passage of the act of 1866, down to August, 1884, a period of about eighteen years, the office was considered by all parties as appointive. Section 2 of the act provides: "That hereafter, when any vacancy shall occur in the board of directors created in pursuance of the act to which this is a supplement, whether such vacancy occur by the expiration of the term of office or otherwise, the same shall be filled by the appointment of the president judge of the court of common pleas;" and all acts and parts of acts inconsistent therewith are repealed.

It may be assumed that reading the act of 1862, the act of 1864 dividing the borough of Scranton into wards and the act of 1866 together, the question is not free from doubt. The legislation, in view of the subject of it and the known changes in its territorial divisions and subdivisions, is fairly susceptible of more than one interpretation. But in cases of doubtful legislation, either because of ambiguity of expression in a single act or because of obscurity or inconsistency arising from several acts on the same subject cotemporary interpretation is always significant as to the true meaning. If in the opinion of lawyers and the people interested who lived at the time and were closely affected by the legislation, it had a particular meaning ou of several possible ones, courts in later years will be slow to adopt another, even though they might not on a perusal of the acts be inclined to concur in the cotemporary interpretation. As we have noticed, for almost eighteen years everybody deemed and treated the office as appointive; then the question was first raised before Judge Alfred Hand of the common pleas of Lackawanna county. Writs of quo warranto were issued against five of the directors, and he rendered an opinion in but one, as the same question was...