delivered the opinion of the court, March 81, 1884.
The proceeding in this case has its foundation in a writ of quo warranto, issued, at the instance of the district attorney to try by what right Richard Gilroy, John Morrow, John Corcoran, John Garden, Patrick Loftus and Michael Coyne, exercise the office of school directors in the borough of Archibald. ' We think the. facts of this case were properly disposed of in the eourt below. It was certainly a mistake for the citizens of this district, in February 1881, to elect a full board of directors. The learned judge, who directed the trial of this case in the court below, properly instructed the jury, that, at that time, there were but two such officers to elect, who would, in regular order, take the places of those whose terms expired in the month of June following, and that the election of the other four was a nullity and must* be disregarded. Hor less correctly has the case of John Morrow been disposed of. This man was- properly and regularly elected, and might have liad his seat had he chosen to take it; but having refused to sit with the legal board, he occasioned a vacancy which was properly filled by appointment, and he thus forfeited his right by his own act.
*487It is contended, however, that the writ in this case ought to be quashed for the reason that the district attorney has not the power to file suggestions for a quo warranto as had the deputy attorney general under the Act of June 14, 1836, and that treating the writ as having been issued at the suit of a private person, it ought not to have been allowed but upon a previous rule to show cause. 'Neither of these positions can be sustained; the first because the Act of May 3, 1850 has, in express terms, vested the district attorney with all the powers which formerly belonged to the deputy attorney general. In the case of the Commonwealth v. The Commercial Bank, 4 Ca., 391, the only question relating to the subject in hand, was whether the Act of 1850 did not take away the power of the attorney general to institute the proceeding in quo warranto. It was held that it did not; but at the same time it was said, that the Act was designed to clothe the district attorney with an authority independent of that of the attorney general. In other words, he who occupies the position formerly filled by tlie deputy, now takes the place of a principal whoso powers are measured by those which previously belonged to the deputy.
As to the second position assumed as above stated, whilst in the Commonwealth v. Jones, 2 Jo., 365, a ease in which the writ was issued at the instance of a private prosecutor, to try the right of an incumbent to the office of mayor, it was held that such process would he granted only after a rule to show cause, yet the subsequent cases of Murphey v. The Farmer's Bank, 8 Har., 415, and the Commonwealth v. Cluley, 6 P. F. S., 270, have so modified this decision as to hold that the rule to show cause is not indispensable. In sueli case the practice is analogous to that prescribed by the British statute of 9 Anne, under which the writ was allowed by the court, and as the matter thus rests throughout in the sound discretion of the court, if it appears at any time during the trial that the writ issued improvidently, the court may refuse to entertain it. This removes the necessity of a strict insistence upon the rule to show cause, since the defendant does not thereby lose Ms opportunity of showing that the suggestion should not have been entertained.
The materia] assignments of error being in this manner disposed of, the others become of no consequence, and are, therefore, passed without special consideration.
The judgment is affirmed.