Appeal, No. 88, April T., 1915, by defendant, from order of C. P. Mercer Co., April T., 1911, No. 97, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Frank P. Craig, et al., v. J. Mede Lininger.

Rule for judgment for want of a sufficient affidavit of defense.

Williams, P. J., filed an opinion the material portions of which are as follows:

The plaintiffs, Frank P. Craig, J. E. Callahan and John Hassel, were the duly elected and qualified county commissioners for the County of Mercer and performed their duties as such commissioners for and during the years 1909,1910 and 1911. The defendant, J. Mede Lininger, was the duly elected .district attorney in and for the County of Mercer on the 3d day of November, 1908, for a term- of three years, and entered upon the duties of said office on the first Monday of January, 1909, and discharged the duties thereof during the ensuing three years of 1909, 1910 and 1911.

At the time said J. Mede Lininger was elected district attorney and at the time he entered upon the duties of said office on the first Monday of Januai’y, 1909, the population of Mercer County, according to the then last United States census, that of 1900, was 57,387, being over 50,000 and not exceeding 60,000. The Act of April 17, 1905, P. L. 170, provides that the salaries to be paid to district attorneys in counties having a population of more than 50,000 and not exceeding 60,000 shall be $1,-250.00. The census' of 1910, taken and announced after the defendant had been elected and entered upon the duties of his office as district attorney, shows the population of Mercer County to be 77,699. Said Act of April 17, 1905, provides that in'counties having a population of more than 70,000 and not exceeding 80,000 the salary of the district attorney shall be $2,000.00. The defendant, assuming that Mercer County had passed into the class of counties having a population of more than 70,-000 and not more than 80,000, and that he was entitled to a salary of $2,000.00, as district attorney for the year 1910, asked for and received from the county treasurer of Mercer County the sum of $2,000.00 as compensation for his services as district attorney for the year 1910; said sum having been paid to the defendant at sundry times during said year upon Avarrants draAvn in Ms favor by the county commissioners of said county.

The county auditors of Mercer County made a settlement of the accounts of the county commissioners of said county for the year 1910, and in their report filed on May 2, 1911, gave said county commissioners credit for said sum of $2,000.00 paid to the defendant as compensation for his services as district attorney for the year 1910.

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