Appeal, No. 16, May T., 1957, from judgment of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1954, No. 103, in case of Commonwealth of Pennsylvania ex rel. Frank F. Truscott, Attorney General et al. v. George DiLauro. Judgment affirmed.
Francis D. Pastorius, for appellants.
David Berger, City Solicitor, with him Jacob J. Siegal, Assistant City Solicitor, Abraham Wernick, Deputy City Solicitor, and Levy Anderson, First Deputy City Solicitor, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
The judgment is affirmed on the following excerpts from the able opinion of Judge NEELY:
"This quo warrantor proceeding was instituted by the Attorney General to oust the defendant from the office of City Treasurer of Philadelphia. The complaint filed April 28, 1954, alleges that the defendant illegally holds that office, because at a municipal election held in Philadelphia on November 3, 1953, Francis D. Pastorius, the Republican Party's candidate for the office of City Treasurer, received the highest number of votes and was duly elected for a four year term beginning January 4, 1954.
"The defendant's answer filed June 26, 1954, avers that he is the legal incumbent of the office of City Treasurer by virtue of an appointment dated December 28, 1953, made by the Director of Finance and approved by the Mayor of the City of Philadelphia; that these officers were authorized to effect this appointment by an ordinance of the Council of the City of Philadelphia dated October 16, 1953, which made the City Treasurer an appointive instead of an elective office. This change by ordinance in the office of City Treasurer from an elective to an appointive office was made shortly before the municipal election, and the appointment of the defendant was just prior to the beginning of the new term for which the plaintiff claims he was elected. ... The validity of the City Ordinance is in dispute.
"Because of the prospective change in the State Administration which bring into office a new Attorney General, Francis D. Pastorius sought to intervene as party plaintiff in order that he might prosecute this action in his own behalf. The petition for intervention was filed on December 9, 1954, and intervention was allowed on December 21, 1954. The facts in this case
are not substantially in dispute. We will hereinafter set forth those facts which we deem material to our decision. There are, however, serious legal questions that are in controversy between the parties. The parties waived a jury trial.
"This case was listed for trial by the intervening plaintiff at our Commonwealth Court held on October 11, 1955. At this trial the present Attorney General, who was the successor to the officer who instituted the suit, through his deputy stated in open court that he did not desire to prosecute this action further. He did not, however, withdraw his name of record, it having then been represented to the Court that the Attorney General desired to see justice done. In effect, we understand the position of the present Attorney General to be that he would take no further action in this matter, nor would he further prosecute the case in any respect.
"The intervening plaintiff representing himself then took over, introducing into the record certain facts. He called and ...