Commonwealth v. Fenner , 228 Pa. 201 ( 1910 )

Opinion by

Mr. Justice Elkin,

The Act of May 23, 1893, P. L. 113, provides for the election of a chief burgess by the qualified voters of every borough in the commonwealth triennially and makes a burgess so elected ineligible to serve for the next succeeding term. The appellee was first elected in 1903, and served his full term. In 1906, he was re-elected for another full term but resigned about one month before the expiration of his term and was then re-elected for another term of three years. If he is permitted to serve out his present term he will have served as chief burgess almost continuously for a period of nine years while the law in express terms provides that he shall only continuously serve for three years. The.learned court below in reaching the conclusion that he was qualified to hold his office for the present term placed a technical construction upon the act of 1893, which provides for the triennial election of a properly qualified person to the office of chief burgess. It was held that the present incumbent is not disqualified because when re-elected in 1906, he was not a properly qualified person to hold the office for that term and because he was not qualified to hold the office from 1906 to 1909, he cannot be held to have been elected for the succeeding term from 1909 to 1912, within the meaning of the act of 1893. Such a construction of the act would defeat its purpose and render its provisions meaningless. There can be no question as to the legislative intention expressed or implied in the statute. It was to make a uniform law throughout the commonwealth. Prior to that time the length of the term of a chief burgess varied in many boroughs, and as a general rule it was for one year only. The purpose of the act was to make a uniform term of three years and as a matter of public policy it was deemed wise to make a person so elected ineligible for the succeeding term. With the wisdom of this policy we have nothing to do, but it is the law, and it is our duty to enforce it according to its spirit and purpose. To hold that because an officer had improperly held an office for one term, his right to hold office for the succeeding term could not be questioned because the term during which he improperly held the office could not be counted against him, would be to put the stamp of approval upon wrongful doing and to reward sharp practices in evading the law. The purpose of the act of 1893, was not only to provide for the triennial election of all chief burgesses but to make persons so elected ineligible to succeed themselves. The appellee not only succeeded himself in 1906 but has again done so in 1909. This is in plain violation of the statute and cannot be sanctioned. The respondent is not entitled to hold the.office of chief burgess for the present term and judgment of ouster should have been entered against him.

Judgment reversed and record remitted to the court below with directions to enter such judgment, or make such order as may be required to effectuate the purpose of this proceeding in accordance with the views herein expressed. Costs to be paid by appellee.