Mahanoy Township Authority v. Draper

• Decision Date: 07 May 1947
• Docket Number: 3164
• Citation: 356 Pa. 573,52 A.2d 653
• Parties: Mahanoy Township Authority v. Draper et al., Appellants
• Court: Pennsylvania Supreme Court

52 A.2d 653

356 Pa. 573

Mahanoy Township Authority v. Draper et al., Appellants

No. 3164

Supreme Court of Pennsylvania

May 7, 1947

Argued April 17, 1947

Appeal, No. 119, Jan. T., 1947, from decree of C.P Schuylkill Co., March T., 1947, in Equity, No. 6, in case of Mahanoy Township Authority v. John Draper et al. Decree reversed.

Bill in equity.

Preliminary injunction granted upon affidavits, opinion by PALMER, P.J Defendants appealed.

Decree reversed; costs to abide the event.

Roy P. Hicks, with him James J. Gallagher and James P. Bohorad, for appellants.

D J. Boyle, with him John B. McGurl, for appellee.

Before MAXEY, C.J., CREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE LINN

The plaintiff, Mahanoy Township Authority, supplies water in the Township of Mahanoy, the borough of Mahanoy, the borough of Gilberton and other adjacent territory. It was created September 23, 1940, by the Board of Supervisors of Mahanoy Township, in Schuylkill County, pursuant to the Municipal Authorities Act of June 28, 1935, P.L. 463, re-enacted as the Municipal Authorities Act of May 2, 1945, P.L. 382, 53 PS 2900Z (supp.). A governing body of five members was appointed by the Board of Supervisors as required by section 7. The members are public officers: Com. ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686.

There seems to have been a dispute toward the end of 1946 with respect to the membership. We understand from plaintiff's bill that on November 6, 1946, the members were McElhenny, Draper, Bradley, Leary and Mongrain; that in consequence of resignations, appointments and re-appointments, Igo and Sullivan replaced Mongrain and Draper, and that a week later Mongrain was reappointed for a term to begin January 1, 1947. Igo, Sullivan and Mongrain, claiming membership, asserted the right to exercise the office of member on or about January 1, 1947. The members then in office resisted the attempt. The controversy, therefore, was between members in office prior to January 1, 1947, and those claiming membership after that date, and could only be ended by determining who held title to the office of member. The Authority then filed this bill against four of the incumbents and the superintendent or manager of the water works, charging conspiracy to retain and operate the property by excluding Igo, Sullivan and Mongrain. Mongrain, describing himself as President, made the affidavit to the bill. On plaintiffs' application and on presentation of two affidavits to the truth of the facts averred in the bill, the court without notice to defendants, granted an injunction restraining them, in substance, from having anything to do with the property and business of the Authority, in other words, requiring them to turn the property over to someone else claiming a right to office. Defendants immediately appealed to this court; on their motion, a supersedeas was granted to maintain the status quo in order to avoid interruption of the public service rendered to consumers in various municipalities by the plaintiff.

There has been no challenge to the title of two of the defendant members, Leary and Bradley, who, though entitled to exercise the rights of their respective offices, have nevertheless been enjoined. If there has been misconduct by a member, the Act specifies the remedy. Section 7 provides: "A member may be removed for cause by the court of quarter sessions of the county in which the Authority is located after having been provided with a copy of the charges against him for at least ten days and full hearing by the court."

There are several reasons why the decree must be reversed.

1. The obvious purpose of the bill was to exclude from public office, certain members of the Authority and to permit others, claiming membership, to obtrude themselves into the offices and take over possession and management of the property and business of the Authority. That, said Justice MITCHELL, in Fredericks v. Huber, 180 Pa. 572, 37 A. 90, "is not the office of a preliminary injunction, which is not to subvert but to maintain the existing status until the merits of the controversy can be fully heard and determined. The sole object of a preliminary injunction, says STRONG, J., in Farmers' R.R. Co. v Reno, etc. R.W. Co., 53 Pa. 224, 'is to preserve the subject of the controversy in the condition in which it is when the order is made. It cannot be used to take property out of the possession of one party and put it into...