dissenting. — Because of equal division of the court on the disposition to be made of relator’s demurrer to respondent’s answer, the demurrer stands overruled, with judgment entered for respondent. When the court is equally divided, the motion before the court falls: Madlem’s Appeal, 103 Pa. 584; or, as stated in Summers v. Kramer, etc., et al., 271 Pa. 189, 195:
“Ordinarily, when the sitting judges are equally divided as to the judgment or decree which should be entered, the motion or rule fails and an order is entered accordingly”.
I dissent from the judgment thus entered in this case and state the reasons on which I would sustain the demurrer.
Proceedings were instituted on October 26, 1936, to remove the School Directors of Branch Township, one of whom was Roy Hossler, who was elected in 1935 for a term of six years, expiring on the first Monday of December 1941. On November 7,1936, after the petition for removal had been presented and the jurisdiction of the court had attached, Hossler tendered his resignation as a *112school director to the school board. Thereupon, at the same meeting, the remaining members of the board elected Henry A. Gottschall as Hossler’s successor. Gott-schall served until the first Monday of December 1937, and, at the election of November 2, 1937, Jerome Brady, respondent herein, was elected to fill the unexpired term of Hossler. On December 20, 1937, the court in banc removed the school directors, including Hossler and, on December 29, 1937, it appointed George Snyder, relator, to fill Hossler’s unexpired term. Thereupon, an appeal was prosecuted to the Supreme Court, which affirmed the judgment of ouster, but neither affirmed nor reversed the action of the court in appointing a successor to Hossler, stating that this action presents a question of title to office which can be decided only by quo warranto. Subsequently, on June 20, 1938, the present quo warranto proceeding was instituted to test respondent’s title to the office. Relator demurred to respondent’s answer, contending that the admitted facts show, as a matter of law, that respondent should be ousted.
It seems to me that the question to be determined is whether there was a vacancy which could be filled by election in November 1937. If Hossler’s seat was not then vacant, the election was a nullity. See Commonwealth ex. rel. v. James, 214 Pa. 319. It is my opinion that there was no vacancy.
In our opinion removing Hossler from office (In re Petition to remove School Directors of Branch Twp., 5 Schuyl. Reg. 249,) we said (p. 253) :
“We have concluded that Hossler is subject to judgment of ouster. Hossler’s culpability is established beyond question, and it would set a dangerous precedent, we believe, to permit one in his position to resign without the consent of the court after the court has acquired jurisdiction of a petition to remove. All accused directors could then resign in turn and fill their vacated offices with their own nominees, thus effectually defeating the purpose of the petition to remove.” In passing upon the same question, *113the Supreme Court said in Branch Township School Directors’ Removal, 330 Pa. 529, 532:
“In Redstone Township School District, 284 Pa. 325, we held the court was without jurisdiction to order ouster where the director had resigned before the ouster proceeding was begun. We expressly reserved the question of the effect of resignation after the commencement of the proceeding, but intimated, at page 333, that if the director withdrew ‘. . . to prevent the continuance of some instituted litigation, it would be treated as ineffective. . . .’ The question being now squarely before us, we decide that the resignation of Hossler was ineffective to oust the court of jurisdiction to order his removal with the consequent disqualification.”
Either Hossler was a school director until the time of the ouster or he was not. Surely his resignation could not he treated as being ineffective for one purpose and effective for another. If it was ineffective to prevent removal, it must be because Hossler remained a member of the school board. Consequently, he remained a school director in spite of his attempted resignation until final judgment of ouster was entered against him.
Respondent’s title to the office depends not alone on the fact of his election; it depends as well upon the question whether Hossler’s attempted resignation created a vacancy to be filled by election. Being of the opinion that there was no vacancy to be filled by election of the people, respondent’s election was abortive and he has no title to the office which he claims. When the vacancy was created by the removal of Hossler and the other directors, the court had jurisdiction to appoint a successor to Hossler under section 217 of the School Code of May 18, 1911, P. L. 309. The court having appointed realtor, he has valid title to the office.
For the foregoing reasons, I would sustain relator’s demurrer and enter judgment of ouster against respondent.