The Commonwealth against The County Commissioners

The Commonwealth against The County Commissioners. Philadelphia, Wednesday, July 7. If county commissioners appoint a treasurer, not with the free exercise of their j udgments, but by drawing cuts to decide ' which of two of them shall give up his nomination to the other, the appointment is illegal,and the commissioners may make another appointment. IN this case a rule was granted upon the commissioners of Philadelphia county, to shew cause why a mandamus should not issue, commanding them to grant to Liberty Browne a certificate of his appointment to the office of treasurer. The commissioners severed in their return; two of them, Jacob Filler and Isaac Johnson, shewed for cause, that on the day fixed for the appointment of treasurer* all the commissioners attended at their office, and all voted for different persons. After several unsuccessful efforts to produce unanimity, Robert Taylor, the third commissioner, proposed to Johnson 'to draw cuts, to determine which of their two candidates should be appointed, and with some hesitation Johnson acceded. Taylor drew the longest paper, and Browne, the candidate of Taylor, was chosen; Fitler at the same time' declining any part in the transaction, but adhering to his own candidate. The amount of security to be given by the treasurer was then settled in a conference by all the commissioners, and a notice of the appointment was signed by Taylor and Johnson, but not delivered, though it was made known to Browne'. On the next day two of the commissioners being ashamed of \yhat had occurred, and Johnson regretting his agency in it, proposed, and proceeded to, a new appointment, when Fitler and Johnson voted for Daniel Groves, and Taylor, though he put in no ballot, still declared himself for Browne. The return of Taylor differed from the other in two par- ■ ticulars. He alleged, 1, That he never consented to the second election, but protested against it, and 2, That the drawing of lots was not for the purpos^ of. '¡electing^ but to decide which of the two should give üp-his hem, , J. R. Ingersoll for Liberty Browne, afgu^l in fivtiurb? the first appointment, and against the authority of the cotrimissioners to make a second; and he referred to the act of the 6th of March 1812, 5 Smith’s Laws 310, ’to shew that Groves, who was a member of the state legislature, was ineligible. Ingersoll contra, contended that the first appointment was illegal and void, that it was highly proper to make another, and that whether Groves was capable of taking the office, was immaterial upon this rule. [MAJORITY — Tilghman C. J.] Tilghman C. J. The Court are of opinion that this is an extremely clear case. It is at the same time a very important one, because it materially concerns the purity of elections or appointments; for the name is in this case of no mo-. ment. We should be sorry if the public supposed we could have any doubt upon the subject. The law intended that the appointment of county treasurer should be made by the judgment of the commissioners, and it has been made by chance; for if the agreement was that chance should decide which of two candidates should be withdrawn, chance was to decide who should be the treasurer. If a jury were to settle their verdict by drawing lots, the Court, if they knew it, would set tt aside; and the jury might be punished for their misconduct. We think the same of an appointment by the commissioners; and perhaps they would be liable to indictment for so improper an exercise of their official power. We therefore approve of the commissioners who reflected, and repented, and proceeded to a new appointment. Whether Mr. Groves is eligible to the office, it is not material at present to say; but we are very clear in refusing the mandamus. Per Curiam. Rule discharged.