Appeal from order of Court of Common Pleas of McKean County, Dec. T., 1966, No. 228, in re appointment of Donna Jean Westlund as school director for Smethport Area School District.
Ralph N. DeCamp, for appellant.
No argument was made nor brief submitted for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell dissents.
On August 9, 1966, F. W. Willardson, a member of the board of school directors of Smethport Area School
District, a third class school district, submitted his resignation. On October 11, 1966,*fn1 the remaining members of the board of school directors appointed Dr. C. F. Michielson, Jr. to fill the vacancy created by Willardson's resignation. On November 2, 1966, ten resident taxpayers of the district petitioned the Court of Common Pleas of McKean County to appoint Donna J. Westlund to fill the vacancy created by Willardson's resignation. The court notified the president of the school board of the filing of the petition and was advised that Dr. Michielson had been appointed but had not yet accepted the appointment. At the next regular meeting of the school board -- November 8, 1966 -- Dr. Michielson appeared, took his oath of office and became a member of the board and of these events the court was advised on November 9, 1966. Nevertheless, on November 16, 1966, the court appointed Mrs. Westlund to fill Willardson's vacancy on the school board.
Thereafter, the board of school directors requested the court to vacate its appointment of Mrs. Westlund and the court awarded a rule to show cause why the appointment should not be vacated. On February 1, 1967, the court discharged the rule and upheld Mrs. Westlund's appointment. From that order the board of school directors has taken the present appeal.
The real crux of this controversy is whether, after the expiration of thirty days from the time a vacancy occurs on a board of school directors, the court of common pleas has exclusive power to fill such vacancy. The court below took the position that it has such exclusive power. The board of school directors urges that, even after the expiration of the thirty day period, until such time as a petition has been presented asking
the court to make the appointment the board still has the power to fill the vacancy. Resolution of this issue depends upon a construction of § 315 of the Public School Code.*fn2
Section 315 provides, in pertinent part: "In case any vacancy shall occur in any board of school directors by reason . . . resignation . . ., in a school district of the second, third or fourth classes, the remaining members of the board of school directors shall, by a majority vote thereof, fill such vacancy within thirty days thereafter . . . . If by reason of a tie vote or otherwise, such vacancy shall not have been filled by the board of school directors within thirty days after such vacancy shall have occurred, the court of common pleas of the proper county, ...