Summary
No. 15 May Term 1891, Sup. Ct.; court below, No. 161 January Term 1890, C. P.
On October 17, 1890, Mr. William S. Kirkpatrick, attorney general, came into court and gave the court to understand and be informed: *
“ That one James B. Denworth, of the city of Williamsport, in the county of Lycoming, hath, since the first day of January, 1889, used and exercised, and still doth use and exercise, the office of recorder in and for the said city of Williamsport, under color of an act of assembly of March 24, 1877, [P. L. 47,] entitled,.....; and. a supplement thereto of May 1, 1879, [P. L. 44,] entitled,.....; and another supplement thereto of February 14, 1881, [P. L. 6,] entitled,....., without any warrant or lawful authority therefor; which color-able office, and the powers, authorities, emoluments and franchises thereto so belonging and appertaining, the said James B. Denworth, during all the time aforesaid, hath usurped, and still doth usurp upon the government of said commonwealth, to the great damage and prejudice of the lawful authorities of the same.
“ Whereupon, the said attorney general makes a suggestion and complaint herein, and for due process of law against the said James B. Denworth in this behalf, to be made to answer by what warrant he claims to have, exercise, use, and enjoy the said office.”
A writ of quo warranto having been awarded as prayed for, and service thereof accepted, the defendant, on March 31,1890, filed an answer averring as follows :
1. “ That the city of Williamsport was, at the time of the passage of an act entitled,...... approved March 24,1877, P. L. 47, and still is, a city whose population does not exceed thirty thousand, and is not less than eight thousand five hundred ; and said city did, by an ordinance duly adopted by the councils thereof and approved by the mayor, accept the provisions of the said act, and cause to be filed in the Court of Common Pleas of the county of Lycoming, in which said city is situated, and also to be recorded by the recorder of deeds of said county, a duly certified copy of the said ordinance, the same being done prior to the passage of the supplement to the said act of 1877, approved May 1, 1.879, P. L. 44, and the supplement approved February 14, 1881, P. L. 6; and the said city of Williamsport, upon the filing and recording of the said ordinance as aforesaid, became, and still is, by the terms of the said act of 1877, and the supplements thereto, entitled to have a recorder for the purposes and with the jurisdiction and powers by the said act and its supplements provided.
2. “ Defendant, who was and is a person duly qualified to hold the office of city recorder, within the requirements of the aforesaid act of 1877, and its supplements, was, on the fifteenth day of February, 1887, by the duly qualified electors of the city of Williamsport, elected to fill the office of city recorder of said city, and was, upon t]je fourteenth day of April, 1887, commissioned by the governor of the commonwealth of Pennsylvania, to hold said office for a term of five years, which term has not yet expired; and did, also, before entering upon the discharge of the duties of said office, give the bond required by § 13 of the aforesaid act of 1877, which bond was approved by the Court of Common Pleas of the said county of Lycoming, and filed and recorded as by the said act required; whereupon, by the terms of the aforesaid act of 1877, and its supplements, defendant became, and still is, entitled to hold the office of city recorder of the city of Williamsport.
“ Wherefore, defendant prays the judgment of this honorable court whether he should be compelled to make any further answer to the said suggestion of the attorney general, and prays to 'be hence dismissed with his reasonable costs in this behalf most wrongfully sustained.”
The same day, the commonwealth, by her attorney general, joined “ issue upon the matters alleged in the answer of the defendant.”
The same day, a trial was ordered and a jury called, when the following admissions of fact were made :
“ For the purposes of this ease, it is admitted that James B. Denworth, of the city of Williamsport, county of Lycoming, since January 1, 1889, used and exercised, and still does use and exercise, the office of recorder in and for the said city of Williamsport, under color of the act of assembly of March 24, 1877, entitled, . . . , and the supplement thereto of May 1, 1879, entitled, . . . , and another supplement thereto of February 14, 1881, entitled.....
“ It is further admitted that the city of Williamsport was, at the time of the passage of said act of assembly and the supplements thereto, and still is, a city whose population does not exceed thirty thousand and is not less than eight thousand five hundred; that said city did, by ordinance duly adopted by councils and approved by the mayor, accept the provisions of said act, and caused to be filed in the Court of Common Pleas of Lycoming county and also to be recorded, a duly certified copy of said ordinance; the same being done prior to the passage of the supplements of May 1,1879, and February 14,1881; that the defendant is eligible to said office under the terms of said act, and was elected by the qualified electors of the said city of Williamsport on February 13, 1887, to fill said office of recorder, and was on April 14, 1887, commissioned under a commission (here produced and shown to the court) by the governor of the commonwealth, for the term of five years to be computed from June 4,1887; that he gave the bond required by the thirteenth section of the act of 1877, duly approved, filed and recorded.”
Mr. Sanderson: The above admissions as to facts are subject to objection as to their relevancy. The commonwealth objects to the facts relating to the election of the said Denworth, and the acceptance of the provisions of the acts quoted, and their supplements; also to the oath, bond and commission as irrelevant.
Thereupon, the court, McPherson, J., charged the jury:
This proceeding is an action brought by the state against the recorder of the city of Williamsport. He was elected under the authority of certain acts of assembly which have been called to our attention, and which we believe to be unconstitutional. [We therefore instruct you to render a verdict in favor of the commonwealth, upon the ground that the acts are unconstitutional, and the defendant has therefore no authority to exercise the office which he has been exercising for the last two years.] Exception.1
—The jury returned a verdict for the commonwealth; and on April 9,1890, “ judgment on the verdict.” On April 17th, the defendant filed a certiorari sur appeal to No. 18 May Term 1890, Sup. Ct., but on May 16th, on motion of the defendant’s attorney, a rule was granted to show cause why the judgment entered should not be stricken off. This rule, on December 10, 1890, was made absolute, the judgment theretofore entered stricken off, and it was ordered that a proper form of judgment be drafted by counsel and presented for signature. Subsequently the following order was signed:
And, now, December 17, 1890, it is ordered, adjudged and decreed that the defendant, James B. Denworth, hath unlawfully assumed and exercised the duties of the alleged office of recorder of the city of Williamsport; that the act of assembly of March 24, 1877, and its supplements, under which the respondent claims to exercise the said office, are unconstitutional and void; that the defendant is therefore without title to the said office; that he be ousted and forever excluded from the actual exercise thereof, and that the commonwealth have and recover from the respondent the costs of this proceeding.3
—Thereupon, the defendant took this appeal, specifying that the court erred :
1. In the portion of the charge embraced in [ ] 1
2. The facts upon which the issue was joined having been admitted, the learned court erred in not instructing the jury to render a verdict in favor of the defendant.
3. In making the order, judgment, or decree.3
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
