Appeal, No. 244, Jan. T., 1946, from decree of C. P., Bedford Co., Sept. T., 1946, No. 210 in the case of Commonwealth ex rel. Paul A. Koontz, District Attorney, and David E. Calhoun v. Jacob A. Dunkle. Decree affirmed.

Proceeding upon information for quo warranto.

The facts are stated in the opinion, by WRIGHT, P. J., of the court below as follows:

David E. Calhoun has asked the court to issue a writ of quo warranto. He asserts that he was regularly elected chairman of the Republican County Committee of Bedford County and that Jacob A. Dunkle has wrongfully usurped said office. When the suggestion was first presented at Chambers, we were of the opinion that the court could not determine a political controversy of this nature. We might have forthwith refused to issue the writ. However, we granted a rule so that the attorneys for the parties concerned would have an opportunity to present their arguments fully in open court. After complete hearing and thorough consideration our original opinion remains unchanged.

The first question is one of procedure. Attorneys for the relator argue that the granting of a rule was improper, citing Com. ex rel. The Attorney General v. Walter, 83 Pa. 105. That case directly supports our action. The Supreme Court said, "It is proper to remark as a matter of practice, that when the Commonwealth through her attorney-general applies for a writ of quo warranto, she is entitled to it without a previous rule to show cause . . . It is not so in the case of a private relator, who is usually put to his rule to show cause". In the case of Com. v. Sommer, 309 Pa. 447, the lower court, without granting a rule, forthwith refused a writ of quo warranto applied for by a private relator, and the decision was affirmed by the Supreme Court.

Coming now to the main proposition, courts cannot determine political controversies such as that between Mr. Calhoun and Mr. Dunkle. It has been said that the writ of quo warranto is as ancient as the common law itself. In Pennsylvania it is provided for by the Act of June 14, 1836, P. L. 621, inter alia "In case any person shall usurp, intrude into, or unlawfully hold or exercise any county or township office within the respective county". Quo warranto is an action to try title to public office: Brinton v. Kerr, 320 Pa. 62. Party officers are distinct from public officers. The Supreme Court has squarely ruled that members of a political committee are not public officers: Kenneck v. Pennock, 305 Pa. 288. In that case it was said that they "have no municipal duties to perform, receive no compensation from the municipality, and the committee in which they may have membership is not a creature of the government but solely pertains to an essentially political party". To this we might add that, so far as the county chairman of a political party is concerned, he does not take the official oath prescribed for all county officers by Article 7, Section 1, of the Constitution. The only logical interpretation of the reasoning of the Supreme Court is that a county chairman is not a public officer. It follows as a matter of law that the requested writ cannot be issued. Incidentally, this seems to be the clear intendment of Pa. R. C. P. No. 1112 relating to venue in actions of quo warranto, which becomes effective January 1, 1947.

Attorneys for the relator rely principally upon the lower court case of MacDonald v. Shafer, 13 D. R. 571. In that case a bill in equity was dismissed on the ground that quo warranto was the proper legal remedy to try title to the office of county chairman of a political party. The decision was largely based upon Longenecker v. Barron, 10 D. R. 429, which was a mandamus proceeding wherein it was held that the county chairman of a political party was a public officer. Practically all of the powers then vested in county chairmen are now vested in the county board of elections. These early cases have not since been approved. They were expressly repudiated in a later lower court opinion: Com. ex rel. Gardner v. Foster, 72 P. L. J. 710. In that case it was held that the chairman of a city political committee was not a public officer. Another early lower court case cited on behalf of the relator is Butler v. Painter, 2 Blair 219, wherein it was held that a county committeeman was a public officer whose title to the office could be tested by a quo warranto proceeding. But that case is directly in conflict with Kenneck v. Pennock, supra.

The only appellate court authority cited by counsel for the relator is Chester County Republican Nominations, 213 Pa. 64. In that case, upon objections to a certificate of nominations, the Supreme Court construed the rules of a political party. It is a complete answer to point out that this case involved an election contest which was expressly provided for by statute. The Supreme Court said, "The statutes make the party rules the law of the case, and the authority of the courts . . . is merely to see that the acting body proceeded regularly according to its own rules". To explain, Section 603 of the Election Code (1937 P. L. 1333) provides that political parties may use the public election machinery at the spring primary for the selection of such party officers "as may be required by the rules of the several political parties to be elected by a vote of the party electors". Incidentally, the rules of the Republican Party of Bedford County require that the county chairman shall be selected not by the electors but by the members of the county committee. Where party officers are selected by use of the public election machinery, controversies may arise over which the court must exercise limited jurisdiction. This would not apply in the case of a tie vote, however, because under Section 811 of the Election Code candidates receiving tie votes for party office are required to cast lots.

To illustrate the type of controversy concerning party office over which the court would exercise limited jurisdiction, we mention Hodgen's Election, 19 Pa. D. C. 283. In that case the court determined who was actually elected a member of a county committee who had been voted for by party electors through use of the public election machinery. The court was careful to point out, however, that the legal status of party committees is not such as to give the court general jurisdiction over them, as their duties are prescribed entirely by party rules and are not of interest to the public generally, saying: "Here we can say who was elected county committeewoman from the second ward of Aston Township, at the primaries held April 26, 1932, but it is the county committee as a whole which ultimately passes upon the membership of such committee. In other words, a member of the county committee, although permitted to be voted for in the primaries in the same manner as other candidates, is not such a candidate as comes within the category of those whose nomination and election is particularly referred to by statute and who are a necessary part of the government of the State or political subdivision thereof and at all times amenable to the courts of the State. The duties of the latter are specifically defined; those of the county committeeman or committeewoman being merely a part of the party organization and naturally amenable to the county committee as a whole. The courts, however, never lose control of the ballot, and it is to that extent only we consider this petition".

Conversely, in the case of Horan v. Blenk, 17 D. R. 363, the courts held that it had no jurisdiction to remedy by mandamus the refusal of the chairman of a political committee to receive the certificate of election of one duly elected thereto, saying: "The court can compel the issuance of a certificate of election to a party officer who has been elected, (i. e. by the public machinery) as it could have done under the Act of 1881, but it cannot compel the members so elected to associate with each other . . .

"The ward committee of the Democratic party is not a corporation, its officers have no public duties to perform nor have they power to determine any duties affecting or in any way relating to the public rights of other citizens. This being so, they are not officers within the meaning of the act of assembly, and therefore are not subject to the writ of mandamus or other control by the courts".

What practical purpose would be served if we did attempt to determine the controversy between Mr. Calhoun and Mr. Dunkle? As has been pointed out, we could not force the members of the county committee to recognize either. Nor could we force recognition of either by the state committee, which has been acknowledged in Section 807 of the Election Code to be the ultimate and supreme governing body of the party. To illustrate this general proposition: though the office of state senator is clearly a public one, yet in the case of Com. v. Crow, 218 Pa. 234, the Supreme Court refused to entertain a writ of quo warranto to try title to that office, saying, "Even a judgment of ouster against the respondent would not give the office to the relator, for his own qualifications and the regularity and validity of his election would still be subject to the investigation and judgment of the senate, which is the ultimate and supreme tribunal on these matters".

Finally, it is well established that the issuance of a writ of quo warranto rests within the sound discretion of the court: Com. ex rel. Margiotti v. Union Traction Company, 327 Pa. 497. In his scholarly opinion in that case, Mr. Justice LINN points out that this fundamental question can be raised and determined even after the writ is issued by means of a motion to quash. In our considered judgment, it is better that courts do not attempt to determine political disputes. As was said by the Supreme Court in Kearns v. Howley, 188 Pa. 116, 122, "Political parties . . . must govern themselves by party law. The courts cannot step in to compose party wrangles, or to settle factional strife. If they attempt it, it may well be doubted whether they would have much time for anything else".

Writ of quo warranto refused and rule discharged. Relator appealed.