Commonwealth ex rel. Schermer v. Franek

• Decision Date: 10 April 1933
• Docket Number: 29
• Citation: 166 A. 878,311 Pa. 341
• Parties: Commonwealth ex rel. Schermer, Appellant, v. Franek; Commonwealth ex rel. Franek v. Schermer, Appellant
• Court: Pennsylvania Supreme Court

166 A. 878

311 Pa. 341

Commonwealth ex rel. Schermer, Appellant, v. Franek; Commonwealth ex rel. Franek v. Schermer, Appellant

No. 29

Supreme Court of Pennsylvania

April 10, 1933

Argued March 20, 1933

Appeal, No. 29, March T., 1933, by relator, from order of C.P. Mercer Co., June T., 1932, No. 76, quashing writ of quo warranto, in case of Commonwealth ex rel. Julius Schermer v Joseph A. Franek. Affirmed.

Appeal No. 47, March T., 1933, by defendant, from judgment of C.P. Mercer Co., June T., 1932, No. 185, of ouster in quo warranto, in case of Commonwealth ex rel. Joseph A. Franek v. Julius Schermer. Affirmed.

Cross actions of quo warranto to determine title to office of justice of the peace and alderman. Before McLAUGHRY, P.J.

The opinion of the Supreme Court states the facts.

Writ quashed in No. 76 and judgment of ouster in No. 185.

Relator in No. 76 and respondent in No. 185 appealed.

Error assigned, inter alia, was order quashing writ in No. 76 and judgment of ouster in No. 185.

The order sustaining the motion to quash in Appeal No. 29, and the judgment of ouster in Appeal No. 47, are affirmed, with costs in each appeal to be paid by appellant.

C. S. Schermer, with him Ben E. Sherman, for appellant, cited: Com. v. Swank, 79 Pa. 154; Kerr v. Trego, 47 Pa. 292; Riddle v. County, 7 S. & R. 386.

George Mashank and E. V. Buckley, of Service, McNeal & Buckley, for appellee, were not heard.

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

OPINION

MR. JUSTICE KEPHART:

The Borough of Farrell became the City of Farrell under the Third-Class City Act in October, 1930.

Joseph A. Franek had been elected Justice of the Peace of the Borough in January, 1930, for a term of six years. On November 3, 1931, the newly organized City held its first general municipal election for the purpose of assuming its status as a Third-Class City. Julius Schermer was elected Alderman of the second ward, and received a commission for a term of six years commencing January 6, 1932. The second ward was the same one in which Franek was a resident when commissioned Justice of the Peace. At the same general election Franek was elected Mayor of the newly constituted city. The change in organization precipitated cross actions of quo warranto. Schermer instituted his action to oust Franek from the office of Justice of the Peace and Franek retaliated with a similar proceeding to oust Schermer from the office of Alderman. The court below ousted Schermer from the office of Alderman and sustained Franek as Justice of the Peace. Appeals followed which will be decided in one opinion.

A writ of quo warranto to oust a public officer possesses many of the elements of a criminal prosecution. Historically, it was a criminal proceeding on information and resulted in the imposition of fines and sentences of imprisonment. While the writ soon lost its criminal character and applied to the mere purpose of trying the civil rights involved, it retained the criminal form. As a result, the action is brought in the name of the Commonwealth to redress a public wrong, is prosecuted in the name of the Commonwealth's attorney and by his leave; if the Commonwealth is successful, it results in ousting the usurper from the office which he unlawfully holds. The question, being a public one, cannot be raised by a private person, but by the attorney general or the district attorney: Com. v. Cluley, 56 Pa. 270; Com. v. Pfromm, 255 Pa. 485.

Although the present actions are brought in the name of the Commonwealth, the district attorney's name does not appear in the records. This is a defect which must not ordinarily be overlooked since the protection of public rights is involved; but as it was stated at the bar of this court that the district attorney had consented to the use of his name, although he made no formal appearance, the omission in this case is overlooked. We adopt this attitude more readily as we bear in mind that the attorney general or district attorney may not arbitrarily refuse either to bring the action or permit the use of his name by a private relator. Should he do so, the party aggrieved by his failure may, in a proper case, compel his cooperation by mandamus: People ex rel. v. Healey, 230 Ill. 280, 82 N.E. 599; Fuller v. Ellis, 98 Mich. 96, 57 N.W. 33; State ex rel. v. Berry, 3 Minn. 90; Bank of Mt. Pleasant's Case, 5 Ohio 250; State ex rel. v. Elliott, 13 Utah 200, 44 P. 248. The reason for this is set forth in Lamoreaux v. Ellis, 89 Mich. 146, 50 N.W. 812: "If the attorney general and prosecuting attorney can refuse, for no good reason, to file an information of this action upon the relation of one who claims that he was legally elected to an office, . . . then it may happen that, if both of these officers belong to the same political party as the incumbent of the office, they would, for that reason, refuse to move in the matter, and keep in any county office for the full term a person not legally elected or legally qualified to hold it. . . . The courts ought not to consent to any holding which will put the power arbitrarily or without remedy or redress into the hands of any one, two, or three, to prevent a candidate for office from establishing his election to any office. . . ."

Although the action is prosecuted in the name of the Commonwealth, it is on the relation of a private citizen. To invoke the issuance of a writ of quo warranto the relator, therefore, must show in himself an interest in the controversy greater than that which he has merely as an inhabitant of the municipality. He must possess some peculiar, personal...