Commonwealth ex rel. Swartz v. Wickersham

66 Pa. 134, 1870 Pa. LEXIS 288

• Court: Supreme Court of Pennsylvania
• Decided: May 28, 1870
• Status: Published

Opinion

The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

— It is not necessary to consider and determine whether the only proper remedy of the relator is not by a writ of quo warranto against the actual incumbent of the office which he claims. Conceding that a mandamus lies, we think that upon the facts admitted by the demurrer he has no title to a commission as county superintendent of Cumberland county.

It is undoubtedly necessary before the state superintendent can be required to issue a commission to any person as a county superintendent, that the president and secretary of the triennial convention of directors of the county should certify to him the name and post-office address of the person elected: Act of May 8th 1864, § 40, Pamph L. 626. Was there such a certificate in this case ? The document which was transmitted as such certifies that “ George Swartz, whose address is Boiling Springs, was declared elected vivd voce by a majority of the members voting.” —and it then proceeds to declare “ that the whole number of directors was 112, of whom 56 voted for said Swartz, and that I). E. Kast, whose address is Mechanicsburg, received 55 votes, one member refusing to vote at all on the last ballot.” In other words it certifies that 112 directors were present, of whom the relator received 56 votes and was thereupon declared elected. Such were the facts as set forth in the answer of the defendant and admitted by the demurrer, except that although the president of the convention at first declared that the relator was elected, yet upon objection being made he withdrew that decision, and the convention adjourned without any declaration.

The thirty-ninth section of the act expressly provides that the selection shall be uvivd voce by a majority of the whole number of directors present.” It is urged that the director refusing to vote was virtually absent. He might perhaps have withdrawn, but he did not do so. He remained, and being present, was entitled to be counted. It matters not what he supposed to be the effect of his action. The legal intendment was that he voted for neither or for the minority candidate. It would be dangerous to fritter away the express provision of the statute by construing an actual presence into a virtual absence. It is a sound canon of interpretation quoties in verbis nulla est ambiguitas, ibi nulla ex-positio contra verba fienda est: and hence the general rule a verbis legis non est recedendum. “Nothing,” said Lord Denman, “is more unfortunate than a disturbance of the plain language of the legislature by the attempt to use equivalent terms:” Everard v. Poppleton, 5 Q. B. 184. The certificate then was a nullity: it was sbfelo de se. Suppose it had set forth on its face that A. had a majority of the votes of the directors present, but that 33. was elected: would the state superintendent be bound to receive such a certificate and issue a commission to 33. ? Certainly not. But this is a case within the same reason, where the paper shows upon its face that there was no election at all, and does not assume to certify that the relator was elected, but merely that he was declared elected.

Judgment for the defendant.