Opinion
by Handley, J.
It was agreed in this case that the city of Scranton is a municipal corporation, * * * created as such by act of Assembly, and that it contains more than three thousand inhabitants, and under tbe act of 1867, is entitled to a city superintendent of schools ; that the board of school directors are authorized and empoweied to elect such superintendent for the term of three years as provided in the act of 1867. By the act of 1862 the school year is required to commence on the first Monday of June in each year, and under the act of 1867 the board of directors or controllers are directed to fix the salary of the city superintendent before proceeding to elect. That on the first Monday of June in the year 1876, the office of city superintendent of the city of Scranton became vacant, and on the first Tuesday in May, as required by law, the board of control of said city met in convention for the purpose of [63] ■holding an election to fill the vacancy aforesaid ; that before proceeding to an election the board by a vote of the majority of the members present fixed the salary of the superintendent at eighteen hundred dollars per annum. The board then proceeded to elect a superintendent as provided by law, but the convention adjourned without an election. At a subsequent meeting of the board a convention was held, but the action thereof was declared void by the Superintendent of Public Instruction. At a convention of the School Board held on the 29th day ol Tune 1878, a vote was taken for the election of a City Superintendent, J. E. Hawker received ten votes and the plaintiff nine votes, whereupon Prof. Hawker was declared duly elected- In accordance, however, with the 8th and 13th sections of the act of 1867, objections were filed.against issuing a commission to Prof. Hawker * * * which objections were sustained by the School Department at Harrisburg; and the plaintiff, Prof. Roney, having received the second highest number of votes * * * was decided to be entitled to the office of city superintendent and under the provisions ol the act of 186.7, was commissioned as such. That pending the determination of the question as to who was legally elected, city superintendent the Board of School - Controllers appointed Prof. Roney principal of the Scranton High School, at a salary of one hundred dollars per month and the duties of that position were performed by him from the first Monday of Septmber, 1878, until the commission aforesaid was issued on the 22d day of ¡November in said year. If upon these state of facts .the court should be of the opinion that the plaintiff is entitled to his salary as city superintendent from the beginning of the school year on the first Monday of June, 1878, then judgment to be entered in favor of the plaintiff and against the defendant for the sum of one thousand and fifty dollars, this sum to be in full of the plaintiff’s claim to, the first day of June, 1879. But if the Court should be of the opinion that the plaintiff is not entitled to the payment of his salary as city superintendent from the first Monday of June, 1878, then judgment [64] to be entered in fav.or of the plaintiff for the sum as is due him under the tacts herein stated; In either case all sums paid to the plaintiff by the defendant since the first Mom day of January, 1878, for services rendered since that time to be applied as payments on said judgment.
The question here presented is simply salary, when it commences, and the amount. The legality of Prof. flaw-, ker’s election is not raised, nor is the validity of the commission of Prof. Roney at issue. It will be borne in mind that Prof Roney was, for a long period, prior to this complication, superintendent of the Scranton Common Schools. His last commission, prior to Scranton becoming a city of the third class,, was dated the 7th day of June, 1875. The commission of Prof.. Roney, issued since Scranton became a city of the third-class, is dated the 22nd day of November, 1878. This commission appoints Prof. Roney Superintendent of Common Schools in and for the city of Scranton trom the 20th day of September till the first Monday in June, 1881.
The act of 1867. 1 Purd. Dig., 150provides how and when the qualification of the Superintendent1 elected :may. be tested, and it then states that should “he be found duly qualified, the superintendent shall issue to him the usual commission, but if not, the said superintendent shall proceed in a like manner to test the qualifications of the person receiving the next highest number of votes in the convention of directors, who, if found qualified, shall receive the commission.” The school year commences on the first Monday of June in each succeeding year. (1 Purd. Dig. 247, § 75.) The period for which a -superintendent is elected is tor the three succeeding school years, and the first Tuesday of May in each year is the time fixed for the school directors to elect such superintendent. (1 Purd. Dig. 250, § 92.) The commission, therefore, issued to Prof. Roney ought to date from the first Monday of June, notwithstanding the election was not finished on the first Tuesday of May. The reading of the act is, if “he be found duly qualified
* * * the superintendent shall issue the usual com[65] mission, and if he be not found duly qualified, then the person receiving the next highest number of votes *
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Opinion
by Handley, J.
It was agreed in this case that the city of Scranton is a municipal corporation, * * * created as such by act of Assembly, and that it contains more than three thousand inhabitants, and under tbe act of 1867, is entitled to a city superintendent of schools ; that the board of school directors are authorized and empoweied to elect such superintendent for the term of three years as provided in the act of 1867. By the act of 1862 the school year is required to commence on the first Monday of June in each year, and under the act of 1867 the board of directors or controllers are directed to fix the salary of the city superintendent before proceeding to elect. That on the first Monday of June in the year 1876, the office of city superintendent of the city of Scranton became vacant, and on the first Tuesday in May, as required by law, the board of control of said city met in convention for the purpose of [63] ■holding an election to fill the vacancy aforesaid ; that before proceeding to an election the board by a vote of the majority of the members present fixed the salary of the superintendent at eighteen hundred dollars per annum. The board then proceeded to elect a superintendent as provided by law, but the convention adjourned without an election. At a subsequent meeting of the board a convention was held, but the action thereof was declared void by the Superintendent of Public Instruction. At a convention of the School Board held on the 29th day ol Tune 1878, a vote was taken for the election of a City Superintendent, J. E. Hawker received ten votes and the plaintiff nine votes, whereupon Prof. Hawker was declared duly elected- In accordance, however, with the 8th and 13th sections of the act of 1867, objections were filed.against issuing a commission to Prof. Hawker * * * which objections were sustained by the School Department at Harrisburg; and the plaintiff, Prof. Roney, having received the second highest number of votes * * * was decided to be entitled to the office of city superintendent and under the provisions ol the act of 186.7, was commissioned as such. That pending the determination of the question as to who was legally elected, city superintendent the Board of School - Controllers appointed Prof. Roney principal of the Scranton High School, at a salary of one hundred dollars per month and the duties of that position were performed by him from the first Monday of Septmber, 1878, until the commission aforesaid was issued on the 22d day of ¡November in said year. If upon these state of facts .the court should be of the opinion that the plaintiff is entitled to his salary as city superintendent from the beginning of the school year on the first Monday of June, 1878, then judgment to be entered in favor of the plaintiff and against the defendant for the sum of one thousand and fifty dollars, this sum to be in full of the plaintiff’s claim to, the first day of June, 1879. But if the Court should be of the opinion that the plaintiff is not entitled to the payment of his salary as city superintendent from the first Monday of June, 1878, then judgment [64] to be entered in fav.or of the plaintiff for the sum as is due him under the tacts herein stated; In either case all sums paid to the plaintiff by the defendant since the first Mom day of January, 1878, for services rendered since that time to be applied as payments on said judgment.
The question here presented is simply salary, when it commences, and the amount. The legality of Prof. flaw-, ker’s election is not raised, nor is the validity of the commission of Prof. Roney at issue. It will be borne in mind that Prof Roney was, for a long period, prior to this complication, superintendent of the Scranton Common Schools. His last commission, prior to Scranton becoming a city of the third class,, was dated the 7th day of June, 1875. The commission of Prof.. Roney, issued since Scranton became a city of the third-class, is dated the 22nd day of November, 1878. This commission appoints Prof. Roney Superintendent of Common Schools in and for the city of Scranton trom the 20th day of September till the first Monday in June, 1881.
The act of 1867. 1 Purd. Dig., 150provides how and when the qualification of the Superintendent1 elected :may. be tested, and it then states that should “he be found duly qualified, the superintendent shall issue to him the usual commission, but if not, the said superintendent shall proceed in a like manner to test the qualifications of the person receiving the next highest number of votes in the convention of directors, who, if found qualified, shall receive the commission.” The school year commences on the first Monday of June in each succeeding year. (1 Purd. Dig. 247, § 75.) The period for which a -superintendent is elected is tor the three succeeding school years, and the first Tuesday of May in each year is the time fixed for the school directors to elect such superintendent. (1 Purd. Dig. 250, § 92.) The commission, therefore, issued to Prof. Roney ought to date from the first Monday of June, notwithstanding the election was not finished on the first Tuesday of May. The reading of the act is, if “he be found duly qualified
* * * the superintendent shall issue the usual com[65] mission, and if he be not found duly qualified, then the person receiving the next highest number of votes *
* * if found qualified, shall receive the commission aforesaid.” What commission aforesaid ? Why, the very commission which the person receiving the highest number of votes is entitled to receive if found qualified to act. as city superintendent “for the three succeeding years.” How it is plain the superintendent of public instruction erred when he worded the commission of Prof. Roney to read “lrom the 20th day of September till the first Mom day in June, one thousand eight hundred and eighty-one.” The period thus named does not cover the three succeeding school years, and the law provides for no other commission. (1 Purd. Dig. 250, § 91.) We must, therefore, while disposing of this question, treat the present commission of Prof. Roney the same as if it was issued as the law directs. The' mistakes of others must not be charged over to Prof. Roney, and the bread earned by the sweat of his brow, returned to the commonwealth. (See Bowman vs. Slifer, 1 Casey 29, 30. We have now reached another question in this case, namely, whether Prof. Roney ceased to be the superintendent of common schools on the first Monday of June,.1878 ? His eommis~ ,sion reads that he is “to have and to hold the said office, with all the rights, powers and emoluments thereunto belonging 45 * * during the full term aforesaid,” if he shall so long behave himself, and well and faithfully perform the duties theieof according to law. It may be conceded that the office in question was not abolished, and that Prof. Roney continued to faithfully perform the duties thereof according to lawT, from the first Monday of June, 1878, until the 20th day of September, the same year, and until he received his present commission. It has been held, that a state librarian holds over by right until his successor is duly elected and qualified, although there is no statute provision authorizing him to do so: Stratton vs. Oulton, 28 Cal., 44. It was also held, that an officer elected under a law which is silent as to his term [66] of office, but which requires an election to be held-every two years, holds until his successor qualifies: Cordiell vs. Frizell, 1 Nev. 130. At common law a public officer, chosen for a specified term, cannot hold over upon the failure of the proper body to elect a successor: People vs. Tieman, 30 Barb., 193. An officer elected “for the year ensuing” in the absence of any restrictive provisions, may continue to hold and exercise his office, after the expiration of the year, until he is superseded by the election of another person in his place: McCall vs. The Byram Manufacturing Co., 6 Conn. 428; Spencer vs. Champion, 9 Conn. 536; Bethany vs Spencer, 10 Conn. 200. We are of the opinion that Prof. Roney, the plaintiff in this case, is entitled to his salary as city superintendent from the beginning of the school year on the first Monday of June, 1878, and/therefore, direct, in accordance with the agreement of the parties, judgment to be entered in favor of the plaintiff, and against the defendants, for the sum of one thousand and fifty dollars. All sums of money paid by the defendants to the plaintiff- since the first Monday of June, 1878, for services rendered as superintendent to ‘be applied as part payment of said judgment.
How, 24th February, 1879, the Prothonotary of Lacks awanna county is directed to enter judgment in this case, as above directed.