Commonwealth ex rel. Matthews v. Lomas

• Decision Date: 24 November 1930
• Docket Number: 328
• Citation: 302 Pa. 97,153 A. 124
• Parties: Commonwealth ex rel. Matthews, Appellant, v. Lomas
• Court: Pennsylvania Supreme Court

153 A. 124

302 Pa. 97

Commonwealth ex rel. Matthews, Appellant, v. Lomas

No. 328

Supreme Court of Pennsylvania

November 24, 1930

Argued October 8, 1930

Appeal, No. 328, Jan. T., 1930, by plaintiff, from order of C.P. Schuylkill Co., July T., 1930, No. 368, quashing writ of quo warranto, in case of Commonwealth ex rel. Ruth Matthews v. Sallie Lomas. Reversed.

Quo warranto to determine title to office of tax collector of Gilberton Borough. Before KOCH, P.J.

Writ of quo warranto quashed. Commonwealth ex rel. Ruth Matthews appealed.

Error assigned was order, quoting record.

The decree of the court below is reversed, and relator's petition reinstated with directions to proceed in accordance with this opinion. Costs to be paid by appellee.

Chas E. Berger, with him M. A. Kilker, for appellant, cited Com. v. Wise, 216 Pa. 152; Com. ex rel. v. Sheatz, 228 Pa. 301; Com. ex rel. v. Bitner, 294 Pa. 549.

Edgar Downey, for appellee, cited: Com. v. Armstrong, 9 Phila. 479; Com. v. Sheatz, 228 Pa. 301; Bechtel v. Farquhar, 21 Pa. C.C.R. 580; Com. v. Hanley, 9 Pa. 513; McKinley's Case, 28 Pa. C.C.R. 90.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Edward Matthews was elected tax collector of Gilberton Borough, Schuylkill County, November 3, 1925. He performed the duties of his office for three years, neglecting however in 1929 to file a bond and by reason of such failure, his office became vacant by virtue of section 901 of the General Borough Act of May 4, 1927, P.L. 519. The borough council, on August 5, 1929, appointed Ruth Matthews, his wife, to fill the vacancy thus created. At the municipal election held in November, 1929, Benjamin Lomas was duly elected tax collector in accordance with section 850 of the General Borough Act of 1927, which provides that the voters of every borough shall "at the municipal election in the year 1929, and every four years thereafter, vote for and elect one properly qualified person as tax collector of the borough." Lomas died December 23, 1929, before qualifying for office, inasmuch as his term would not have begun until the first Monday of January, 1930. No further appointment was made by the borough council, and, on March 3, 1930, the court of quarter sessions appointed Mrs. Sallie Lomas to fill the "unexpired term" of her deceased husband, Benjamin Lomas. Mrs. Matthews and Mrs. Lomas both claimed the right to the office, and duly presented bonds to the borough council as security for the collection of the 1930 assessments. The bond of the former was approved by council, but rejected by the county commissioners because of the appointment of Mrs. Lomas by the court of quarter sessions. The bond of the latter was subsequently approved by both the county commissioners and the court of quarter sessions and she took the oath of office and entered upon her duties. Mrs. Matthews thereupon petitioned for a writ of quo warranto to test the right of Mrs. Lomas to the office, averring that the death of Benjamin Lomas before the commencement of his term did not create a vacancy in the office, but that petitioner's right to the office continued until a successor should be duly elected at the next municipal election to be held in November, 1933.

It being conceded that Benjamin Lomas, though duly elected to the office of tax collector for a four-year term beginning the first Monday of January, 1930, did not in fact qualify for the office because of his death previous to the time he would have assumed the position to which he had been elected, the first question presented is whether his election, even though he had not qualified for office, ended the term of Mrs. Matthews so that his subsequent death necessarily created a vacancy which could be filled by appointment, or whether the act of the electors in choosing Lomas was ineffectual unless and until he duly qualified as such official. If the vacancy to be filled was that of a successor to Lomas, the appointment made by the court below was proper. But if the vacancy, if any, was in the office held by Mrs. Matthews, then the validity of the appointment of Mrs. Lomas must depend upon whether a vacancy in fact existed, which in turn depends upon whether Mrs. Matthews was entitled to hold office until her successor duly qualified.

The court of quarter sessions, in its opinion filed in the proceeding for the appointment of a tax collector, decided that Mrs. Matthews held over under the Act of March 22, 1927, P.L., 53, until her successor was elected or appointed and duly qualified, but that it was the duty of council to appoint a successor after January 6, 1930, because the person elected to fill the office had died without qualifying, and, in its order appointing Mrs. Lomas, recited that a vacancy existed by reason of the death of Benjamin Lomas, and made the appointment "for the unexpired term of the said Benjamin Lomas." This conclusion of the court seems to be a non sequitur for reasons hereinafter stated.

The death of a person before he has qualified according to law to fill an office to which he was elected, does not create a vacancy, if the incumbent of the office is authorized to hold until his successor shall be qualified: Commonwealth v. Hanley, 9 Pa. 513; also recognized in Commonwealth v. Wise, 216 Pa. 152, and Commonwealth v. Sheatz, 228 Pa. 301, 309. In Commonwealth v. Hanley, supra, in discussing the meaning of "duly qualified," it was said (page 517): "Being duly qualified in the constitutional sense, and in the ordinary acceptation of the words, unquestionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite before entering on the duties of the office; that, in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation (vide 8th article of Constitution) to support the Constitution of the Commonwealth, and to perform the duties of the office with fidelity. Until all these prerequisites are complied with by his successor (for if you can dispense with one, you can dispense with all), the respondent is de jure, as well as de facto, the clerk of the orphans' court."

Commonwealth v. Sheatz, supra, involved the right of the state treasurer a constitutional officer, to hold over where the newly elected treasurer died before qualifying for his office. In that case it was held that an act of assembly extending the term of office beyond the period fixed by the Constitution, was void, and consequently on the death of the newly elected treasurer a vacancy was created which the governor was authorized to fill by appointment. In the course of the opinion of this court, in referring to the right of a county officer to hold until his successor should be duly qualified, it was said, (page 310): "It necessarily follows that no vacancy can occur in a county office so long as the elected incumbent continues to perform the duties of the office. This rule prevails when the officer elected or appointed has for any cause whatever failed to qualify, and is recognized not only in our own but in other jurisdictions of this country. It is the settled interpretation of such constitutional provisions. Of course, in the absence of a fixed and definite term or other constitutional restriction, it is competent for the legislature to authorize a public officer to hold over until his successor is qualified. In such cases, like those where the right to hold over is expressly authorized by the constitution, the additional period...