Commonwealth ex rel. v. Zalewski

• Decision Date: 03 June 1918
• Docket Number: 43
• Citation: 104 A. 683,261 Pa. 409
• Parties: Commonwealth ex rel., Appellant, v. Zalewski
• Court: Pennsylvania Supreme Court

104 A. 683

261 Pa. 409

Commonwealth ex rel., Appellant, v. Zalewski

No. 43

Supreme Court of Pennsylvania

June 3, 1918

February 26, 1918, Submitted

Appeal, No. 43, Jan. T., 1918, by relator, from judgment of C.P. Lackawanna Co., Jan. T., 1918, No. 320, refusing judgment of ouster in quo warranto proceedings in case of Commonwealth ex rel. George W. Maxey, District Attorney, v. Joseph Zalewski. Affirmed.

Suggestion for writ of quo warranto. Before EDWARDS, P.J.

The opinion of the Supreme Court states the facts.

The respondent demurred to suggestion for the writ. The court entered judgment for the respondent on the demurrer. Relator appealed.

Error assigned was the judgment of the court.

Judgment affirmed.

A. A. Vosburg, for appellant.

M. J. Martin and Ralph W. Rymer, for appellee.

Before BROWN, C.J., POTTER, STEWART, MOSCHZISKER and WALLING, JJ.

OPINION

MR. CHIEF JUSTICE BROWN:

This proceeding was instituted to oust the appellee from his office as councilman of Dickson City Borough, on the ground that he had taken his oath of office before a notary public. Section 2, Article I, Chapter VII, of the Act of May 14, 1915, P.L. 312, provides that, "Before entering upon the duties of their office, the councilmen shall take and subscribe an oath or affirmation to support the Constitution of the United States and of the Commonwealth of Pennsylvania, and to perform the duties of their office with fidelity. The oath or affirmation may be taken before any judge or justice of the peace of the county, or before the burgess of the borough, when he is qualified, and shall be entered upon or filed among the records of the borough." Before entering upon his duties the appellee took the oath so prescribed, and the notary public who administered it to him had power to administer an oath, "as fully, to all intents and purposes whatsoever, as any judge of the Supreme Court, or president, or associate judge, of any of the Courts of Common Pleas, or any alderman, or justice of the peace, within this Commonwealth": Act of August 10, 1864, P.L. 962. The provision in the Act of 1915 that the councilmanic oath of office "may be taken" before a judge, justice of the peace or burgess, is merely directory or permissive, and not mandatory, as it would be if the word "shall" had been used instead of "may," and the learned president judge of the court below correctly so held.

Judgment affirmed.