Appeal, No. 7, Jan. T., 1964, from decree of Court of Common pleas of Delaware County, Sept. T., 1961, No. 954, in case of John H. Farrell v. County of Delaware. Order permitting intervention revoked; petition for leave to intervene dismissed; reargument refused April 21, 1964.
John F. Cramp, Solicitor, for County of Delaware, appellant.
William A. Welsh, for intervenors, appellants.
Donald J. Orlowsky, with him Walter T. ReDavid, and ReDavid, Sparks, Orlowsky & Maffei, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
On March 10, 1961, the Commissioners of Delaware County, Pennsylvania, through the affirmative votes of two members, Albert H. Swing and William A. Welsh, passed a resolution, fixing the commissions or compensation to be paid tax collectors beginning January 1, 1962, for collecting county and institutional district taxes.
On said date, Swing was not only a duly elected county commissioner, but was also serving an incumbent term as tax collector for Radnor Township, in said county, which term expired in January 1962. The resolution did not attempt to fix the rate of compensation paid to Swing in his capacity as tax collector for the term in which he was then serving. On March 13, 1961, three days subsequent to the passage of the resolution, Swing became a legal candidate for re-election to the office of tax collector.*fn1
On October 17, 1961, John H. Farrell, a nominated candidate for the office of tax collector of Upper Darby Township, Delaware County,*fn2 instituted this action in equity seeking an injunction prohibiting and restraining enforcement of the resolution hereinbefore described, and seeking restoration of the rate of commissions in effect and paid tax collectors prior to its passage. The defendant, the County of Delaware, filed an answer and the matter came on for hearing before the court. A decree was subsequently entered ruling that the resolution was illegal and of no effect because Swing, as of the date of its passage, "had every intention of campaigning and running for the office of tax
collector for a new four-year term, commencing January 1962," and was, therefore, disqualified to vote thereon, because of an existing personal and pecuniary interest. The rate of compensation paid tax collectors for collection of county and institutional district taxes in effect prior to the passage of the resolution was restored.
On March 21, 1963, the defendant, County of Delaware, filed a timely appeal to this Court from the lower court's decree. On December 17, 1963, a new Board of Commissioners of Delaware County,*fn3 despite the questionable correctness of the lower court's decree and the substantial amount of public tax dollars involved, by majority vote, directed the county solicitor ...