Appeal, No. 144, Jan. T., 1961, from decree of Court of Common Pleas of Delaware County, Dec. T., 1959, No. 1593, in case of Commonwealth ex rel. Jacques H. Fox, District Attorney, v. Arthur A. Chace. Decree reversed.
John A. Reilly, for appellant.
R. Paul Lessy, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
This case involves the legal right of the appellant, Arthur A. Chace, to hold, by appointment, the office of councilman of the Borough of Brookhaven, in the County of Delaware. In an action of quo warrantor, the lower court held his appointment to the office illegal and of no effect. Chace appealed.
The issue was tried before the court without a jury. The facts are few and not in dispute.
At a meeting of the council involved, an elected member submitted his resignation which was accepted. Immediately, as disclosed by the official minutes of the meeting, the following occurred: "'Mr. Christopher nominated Mr. Arthur Chace, seconded by Mr. Waychunas. Mr. Whittington nominated Mr. Skulski but no second was received. A motion to close the nominations was made by Mr. Hensley and seconded by Mr. Phillips. Since only one nominee was seconded
the Secretary was instructed to enter the appointment of Mr. Arthur Chace to fill the unexpired term of Mr. Petit de Mange.'"
The lower court ruled that the Mr. Skulski, referred to in the minutes, was properly nominated to fill the vacancy and that his nomination was not lost because it was not seconded. Citing, Roberts Rules of Order, Revised. Hence, since there was more than one nominee to fill the existing vacancy, a vote should have been taken by the members of the council through which each councilman would have recorded his choice of the two nominees. Failing this no valid election or appointment followed. The court further held, that Section 901 of The Borough Code of May 4, 1927, P.L. 519, as amended, 53 PS § 45901, requires such vacancies to be filled by appointment, through a resolution, and that such formal action was lacking in this case.
The lower court erred. There was substantial compliance with the law, and the appointment of the appellant, certainly, reflected the will of the ...