Hayes v. Sturges , 215 Pa. 605 ( 1906 )

Opinion by

Mr. Justice Potter,

In this proceeding the legality of the election of the persons assuming to act as eouncilmen of the borough of Old Forge, was attacked, upon the ground that there was no legislative authority for the election of members of council for any term longer than one year, in boroughs which are divided into wards. It was alleged that the provisions of the law as to classification do not apply to such boroughs. The appropriate remedy in this case would have been quo warranto. Equity has no jurisdiction to determine the right to hold and exercise a public office: Gilroy’s App., 100 Pa. 5 ; Dayton v. Carter, 206 Pa. 491. But the parties here have agreed upon the record to waive the question of jurisdiction and the court below has considered the case as if it had been brought before it by writ of quo warranto. The decree awarding an injunction is therefore to be regarded as equivalent to a judgment of ouster in quo warranto proceedings.

The decision of the court below that the defendants are not legally members of council of the borough of Old Forge is based upon the conclusion of law, that the act of 1883 applies only to boroughs not divided into wards, and has no application to Old Forge borough. “ This case,” the court says, “ turns upon the question whether the Act of June 1, 1883, P. L. 54, applies to boroughs divided into wards.”

The court below assumes that the act of 1883 cannot be applied to boroughs divided into wards, but it gives no reason for this assumption, except a quotation from the opinion of Judge Hand, in a case in the court of common pleas, to the effect that no provision is made as to which wards are to elect for the different terms, and until the law provides for this, no elector will know how to vote.

The difficulty in this ease seems to arise out of a mistake made by the court of quarter sessions in 1903 when the borough was divided into six wards, each ward to elect two councilmen, but so as not to interfere with the terms of those already elected. But the decree also provided that at the next election, two councilmen should be elected in each of the second, third and fifth wards, and one in each of the fourth and sixth wards, all for terms of three years. There seems to have been no statutory authority for directing the terms to be all for three years.

The Act of May 13, 1889, P. L. 193, provides that if the court increases the number of councilmen they shall at the next succeeding municipal election, “ be elected as is provided for by existing law.” And the act of 1883 which was existing law, authorized classification, so that one-third of the councilmen should be elected each year. This provision was disregarded by the court of quarter sessions in dividing the borough of Old Forge into wards, and the election of councilmen in 1904 for terms of three years would seem to have been illegal, as being without authority of law. But the court having failed to designate the manner in which councilmen should be elected, the voters themselves seem to have done so, and as a matter of fact, in 1905, they elected a council whose terms are classified in accordance with the act of 1883, thus accomplishing the result intended by the legislature, and atoning for the failure of the court to make the proper order in the premises.

The Act of April 13, 1903, P. L. 171, by its terms, applies only to boroughs which were divided into wards at the time of its passage, and therefore it does not include the borough of Old Forge, but it indicates the intention of the legislature that all boroughs, including those divided into wards, should elect their councilmen in classes. It also shows that it is not impracticable to elect the council of a borough divided into wards by classes. In Com. v. Fletcher, 180 Pa. 456, the court divided a borough into wards and directed that the school directors should bo elected by classes, as provided by the act of June 1, 1883. They had already been classified, as had the councilmen in the present case, prior to the division into wards. The question of the application of the act of 1883 was not discussed, apparently being taken for granted. But the case shows that it was possible to make such a division under circumstances which were practically the same as those in the present case.

We see nothing in the act which would justify the assumption that it was intended to apply exclusively to boroughs not divided into wards. The language both of the title, and the body of the act indicates that it is intended to apply to all boroughs in the commonwealth.

The assignments of error are sustained, and the decree of the court below is reversed, and it is ordered that the injunction restraining the defendants from acting as councilmen of the borough of Old Forge, be dissolved, and the bill be dismissed.