March 13, 1961
COMMONWEALTH EX REL. BLANC, APPELLANT,
Appeal, No. 320, Jan. T., 1960, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1957, No. 1469, in case of Commonwealth ex rel. Victor H. Blanc, District Attorney, v. Joseph J. Hersch, Chief Magistrate. Appeal dismissed.
Herbert G. Schick, with him Philip H. Ward, III, for appellant.
Mitchell S.Lipschutz, Solicitor, Board of Magistrates, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
[ 402 Pa. Page 627]
OPINION BY MR. CHIEF JUSTICE JONES.
This action in mandamus seeking enforcement of an alleged public (as distinguished from private) right, was instituted in the court below by a volunteer group of citizens on the relation, and with the consent, of the District Attorney of Philadelphia County. The court, after argument, dismissed the complaint and counsel for the initiating citizens assumed to appeal the order of dismissal to this court without the consent of the District Attorney having been obtained. As the appeal was taken without even color of legal authority, it will necessarily be dismissed.
No implication is to be drawn from this opinion as to whether the District Attorney could lawfully assent to the institution of the action below by private parties to be carried on by them acting by their private counsel. See Commonwealth ex rel. Shumaker v. New York & Pennsylvania Company, Inc., 378 Pa. 359, 367, 106 A.2d 239. That question is not before us and we, therefore, deliberately refrain from any indication of opinion with respect thereto.
Appeal dismissed at the costs of the individuals signatory to the complaint.
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