Commonwealth ex rel. Potter v. Meanor , 167 Pa. 292 ( 1895 )

Opinion by

Mr. Justice McCollum,

At the spring election in Turtle Creek borough in 1894, the relator and John T. C. Bowman were opposing, candidates for the office of school director, and each received seventy-nine votes. As they had an equal number of votes for the same term of office, it became their duty, in compliance with section two of the act of April 11, 1862, P. L. 471, to appear at the next regular meeting of the board of school directors to have their rights to seats therein determined, and the duty of the board to proceed in conformity with the act to decide which of them should hold the office. The parties appeared as by the statute they were required to do, but Bowman refused to participate in the drawing prescribed by it and the board adjourned without taking any action in the premises. The relator again appeared before the board, at its reorganization in June, for the purpose of having his right to a seat in it determined, but the board declined to act, on the ground that the duty of deciding the issue raised by the tie vote rested exclusively upon the board as constituted at the next regular meeting of it after the election. The failure of the board as constituted at that time to determine the rights of the parties before the reorganization of it was regarded by the reorganized board as destructive of the relator’s right under the statute, and as having created a vacancy in the office. It therefore declared that a vacancy existed and appointed the respondent to fill it. His title to the office thus acquired is attacked in this, proceeding on the ground that the board had no legal warrant for appointing him to it. The learned court below sustained the relator’s contention and entered a judgment of ouster against the respondent, from which he appealed.

It is conceded by the learned counsel for the appellant that the relator’s right to have the case decided under the act of 1862 was absolute and could not be taken from him or in anywise impaired by any act of the opposing candidate, but he insists that this right was lost by the inaction of the board prior to its reorganization in June. In other words it is claimed in support of the appeal that the postponement by the board of the performance of its duty under the act, deprived it of jurisdiction, extinguished the relator’s statutory right and created a vacancy in the office, to be filled by it under section seven of the act of May 8, 1854. The consequences of an allowance of this claim are well calculated to raise a doubt respecting the soundness of it. In the first place the proposition that the effect of the neglect or refusal of the board to discharge its plain duty when the parties appeared before it, was to deprive them of their statutory rights and it of the power to perform that duty at a subsequent meeting, is not tenable. There is nothing in the statute which in terms or by necessary implication attaches such consequences to the non-performance of the duty it imposes. The provision in relation to the time of appearance by the parties was complied with by them, and while it may be inferred from this provision that it was the duty of the board to determine their rights at that time, there is no legislative mandate to this effect, nor penalty prescribed for a failure to do so. Having regard to the subject-matter, object and language of the act of 1862 we are of the opinion that the provision in regard to time' is directory only and that the board could have lawfully determined the rights of the parties thereunder at any lawful meeting held at or before the beginning of the school year when the term of office for which they were candidates commenced. The law puts the duty of determining their rights under it upon the board of school directors of the proper district. The board is composed of six persons, two of whom retire from it at the end of each school year and their places are taken by persons chosen for them at the preceding election. The change thus effected in the membership of the board has no effect upon its powers and duties under the act of 1862. It follows from these views that it was the duty of the reorganized board to comply with the relator’s request and determine his rights to a seat therein, and that neither its refusal, the neglect of the board before the change of membership in it, nor the act of May 8, 1854 authorized the appointment to which this litigation relates. We conclude therefore that the learned court below did not err in entering the judgment complained of.

Judgment affirmed.