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COMMONWEALTH EX REL. FOX v. SWING (11/28/62)

November 28, 1962

COMMONWEALTH EX REL. FOX
v.
SWING, APPELLANT.



Appeal, No. 229, Jan. T., 1962, from order of Court of Common Pleas of Delaware County, March T., 1961, No. 45, in case of Commonwealth ex rel. Jacques H. Fox, District Attorney, v. Albert H. Swing. Order reversed.

COUNSEL

David F. Maxwell, with him Robert E. Porter, Harold D. Greenwell, David O. Maxwell, and Greenwell, Porter, Smaltz & Royal, and Obermayer, Rebmann, Maxwell & Hippel, for appellant.

Albert Blumberg, with him Read Rocap, Jr., Louis A. Bloom, Joseph W. deFuria, Paul R. Sand, and James A. Lynch, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Eagen

[ 409 Pa. Page 242]

OPINION BY MR. JUSTICE EAGEN

Appellant, Albert H. Swing, in 1957, was elected to a four-year term as treasurer of Radnor Township, a first class township located in Delaware County. He assumed the duties of said office in January, 1958, and holds this position at the present time having been re-elected to a second four-year term in 1961. In 1959, appellant was elected a county commissioner of Delaware County, a third class county, for a term of four years. He assumed the duties of that office in January 1960.

Relator, Jacques H. Fox, District Attorney of Delaware County, filed a complaint in quo warrantor against appellant in 1961, alleging that the offices of township treasurer and county commissioner which are held by appellant have functions, duties and responsibilities that are incompatible and that for this reason the positions are held illegally by appellant.

Appellant filed preliminary objections to the jurisdiction of the court below, contending that under Article XII, § 2, of the Pennsylvania Constitution of 1874, the power to determine whether or not two public offices are incompatible is vested exclusively in

[ 409 Pa. Page 243]

    the legislature, and that the question of incompatibility cannot be decided by the courts. After argument, the preliminary objections were dismissed and appellant was given twenty days within which to file an answer. This appeal was taken.

Before deciding the merits of the legal question presented, we must dispose of appellee's motion to quash or dismiss the appeal. Appellee contends that the order of the court below overruling appellant's preliminary objections challenging the court's jurisdiction over the subject matter is interlocutory and not appealable. Suffice it to say that the Act of March 5, 1925, P.L. 23, 12 P.S. § 672, was designed to permit an appeal in the present situation. As we stated in Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 57, 117 A.2d 697 (1955), "Plaintiff has moved to quash the appeal on the ground that the court's decree was interlocutory and not a final decree from which an appeal may properly be taken. It is true, of course, that the appeal is not from a final decree, but the very purpose of the Act of 1925 was to permit such an appeal in order that the question of jurisdiction might be preliminarily determined. The motion to quash is overruled." Neither Guzek v. Empire Wholesale Company, 396 Pa. 78, 151 A.2d 470 (1959), nor Fairchild Engine and Airplane Corporation v. Bellanca Corporation, 391 Pa. 177, 137 A.2d 248 (1958), is applicable here.

Turning now to the main point at issue, the Constitution of Pennsylvania, Article XII, § 2, provides: "No member of Congress from this State, nor any person holding or exercising any office or appointment of trust or profit under the United States, shall at the same time hold or exercise any office in this State to which a salary, fees or perquisites ...


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