Commonwealth v. Anthony , 4 Watts & Serg. 511 ( 1842 )

The opinion of the Court was delivered by

Sergeant, J.

— It is very clear that the requisites of the Act of Assembly have not been complied with, and therefore the appointment of the relator was unauthorized and void. Though the power to appoint is given to a judge, yet the mode in which it is to be made is specially pointed out, and could not be departed from. It was to be on the nomination of a majority of the creditors whose claims had, at the passage of the Act of Assembly, been reported and filed with the then commissioner. They were thus a fixed and definite number — not subject, in this respect, to increase or diminution, or to any contingency; and that numbér was one hundred and twenty-six, of which fifty-one, not being a majority, had no power whatever to nominate a commissioner, nor could such nominee be duly appointed.

It is urged that the law contemplated a majority of such as voted at an election, and that until the contrary appears, the presumption is that the relator had more votes than any other candidate, and therefore may be said to have been nominated by a majority of the one hundred and twenty-six. But there is nothing in the law which contemplates,,an election by the creditors. That could only take place by meeting at a time and place fixed for their attendance, and giving in .their votes;' whereas the nomination intended, obviously means one to be exercised by the creditors individually, in their separate rights, as interested in the fund, and a majority of the whole number is made necessary.

As to the claim that the judge had a right to appoint in case of a vacancy, and that the relator may hold under this provision, it is sufficient.to say, it does not appear that there had been a vacancy. The appointment appears to have been made as an original one, and must be good as such or not at all.

The appointment then being void, the court will not restore the relator to an office which-he had no title to hold or enjoy. They will not interfere to place him in an office to-day, from which they Would remove him on a quo warranto to-morrow.

Motion denied.