Road Com. v. Comrs

2 Citing cases

  1. Commonwealth ex rel. District Attorney v. Gibson

    316 Pa. 429 (Pa. 1934)   Cited 10 times
    In Commonwealth ex rel. District Attorney v. Gibson, 316 Pa. 429, 175 A. 389, the Act provided that the County Commissioners should appoint each year 2 registrars for each election district in cities of the third class, said appointments to be made from the names of two suitable persons to be submitted by the party representatives of the two major political parties. If the names submitted were not satisfactory the County Commissioners could ask that other names be filed.

    Regardless of its validity, the appointment of Angelina Lewis was made by those who alone had the power to do so, and she is now the de facto incumbent of the office of registrar of the second precinct of the third ward of the city of Sharon. The relator cannot, therefore, by this action force respondents to appoint another to that office. It is well settled that mandamus will not lie to compel the installation of one person in an office of which there is already a de facto incumbent (Com. v. Perkins, 7 Pa. 42; Caffrey v. Caffrey, 28 Pa. Super. 22; Daugherty v. Fippinger, 177 Ill. App. 522; French v. Cowan, 79 Me. 426; State v. Gasconade County Court, 25 Mo. App. 446; see Com. v. Comrs., 5 Rawle 75; Com. v. James, 214 Pa. 319; People v. Trustees of Saratoga Springs, 54 Hun (N.Y.) 16; High, Extraordinary Remedies (3d ed.), section 49), for to do so would be to try the latter's title to office in a proceeding to which he is not a party. A fortiori the other relief asked — that respondents be ordered to revoke their appointment of Angelina Lewis and execute an order appointing the relator as registrar — cannot be granted.

  2. Hill v. Comrs

    190 N.C. 123 (N.C. 1925)   Cited 7 times

    Again, it would seem that the act here challenged is only declaratory of, or supplementary to, the powers given the defendant under the general law. Road Com. v. Comrs., 188 N.C. 362. Such would apparently save its constitutionality. The exceptions are not allowed.