
    Commonwealth ex rel. v. Keiser
    
      Marshall H. Morgan, for relator.
    
      Ben-Zion D. Oliensis, for respondent.
    
      February 16, 1940.
   Gordon, Jr., P. J.,

This is a •motion to quash a writ of quo warranto. Of the nine reasons assigned for quashing the writ, the sixth, seventh, and eighth alone are properly cognizable on a motion to quash. These are that we are without jurisdiction to try the title to office of a magistrate, and that the district attorney has no standing to prosecute the writ, which, it is alleged, can only be maintained by the Attorney General. These reasons are without merit: Commonwealth ex rel. v. Taylor et al., 159 Pa. 451; Commonwealth ex rel. v. Cameron, 259 Pa. 209; Commonwealth ex rel. v. Franek, 311 Pa. 341. The remaining reasons, as, for instance, the alleged unconstitutionality of section 8 of the Magistrates’ Courts Act of May 10, 1927, P. L. 866, establishing an age qualification for magistrates, should be raised by demurrer to the writ or, if the allegations of fact in the suggestion are not admitted, by an answer.

The writ in this case is directed to a recently-elected magistrate of the City of Philadelphia, and questions his qualification to hold the office on the ground of age. It is of the utmost importance that the public justice of the Commonwealth be administered only by those legally qualified to perform that function, and hence, when the qualifications of an incumbent of such an office are challenged, they should be promptly decided upon their factual as well as their legal merits. The leave requested by respondent to demur specially to the writ is refused. The true age of respondent must be definitely established before his right to hold the office in question can be finally decided and all his rights fully protected. This can only be done after a general demurrer or an answer on the merits. Accordingly, the motion to quash the writ is dismissed, with leave to respondent to demur generally to or answer the writ within 10 days.  