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COMMONWEALTH EX REL. MAURER v. BURNS (11/13/50)

November 13, 1950

COMMONWEALTH EX REL. MAURER, DISTRICT ATTORNEY, APPELLANT,
v.
BURNS



Appeal, No. 275, Jan. T., 1950, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1950, No. 2178, in case of Commonwealth of Pennsylvania ex rel. John H. Maurer, District Attorney v. Joseph J. Burns. Judgment reversed.

COUNSEL

Philip Price, with him Elkins Wetherill, and William Barclay Lex, for appellant.

Joseph W. Henderson, with him Joseph H. Lieberman and Rawle & Henderson, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Lander and Chidsey, JJ.

Author: Drew

[ 365 Pa. Page 596]

OPINION BY MR. CHIEF JUSTICE DREW

The sole question raised by this appeal is whether an appointment to the Board of Revision of Taxes of

[ 365 Pa. Page 597]

Philadelphia County is valid when made by a majority of the judges of the courts of common pleas of that county without notice to all of such judges and without a meeting of them.

On June 20, 1950, a "round robin" purporting to appoint defendant, Joseph J. Burns, to the Board of Revision of Taxes of Philadelphia County was circulated among the judges of the courts of common pleas in that county. That paper was addressed to the Secretary of the Board of Judges and, after being signed by fifteen of the twenty judges, was forwarded to the addressee who then notified the proper persons of the appointment. Subsequently this action in quo warrantor was instituted challenging the validity of the appointment, it being alleged in the complaint and not denied by the answer that the proposed appointment was not discussed at any meeting of the Board of Judges, that some judges had no opportunity to express their opinions of defendant's fitness for the office, and that one president judge had no knowledge of the circulation of this "round robin". By stipulation the case was heard on the pleadings. The learned court below, Judge KNIGHT specially presiding, held that the appointment of defendant was legal and this appeal followed.

Section 2 of the Act of June 27, 1939, P.L. 1199, provides that members of the Board of Revision of Taxes in counties of the first class shall be appointed "by a majority of the judges of the courts of common pleas of the county". The court below held that there was no attempt made by the legislature to control the method of ascertaining the will of the majority of the judges; and further that although the "round robin" was not the best and most appropriate method of filling the vacancy, it was a legal method. It is these rulings which are here challenged.

In considering the intention of the legislature in the Act of 1939, it should be ...


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