Commonwealth v. Allen

• Decision Date: 12 February 1872
• Parties: Commonwealth <I>versus</I> Allen, Huhn and Shane.
• Court: Pennsylvania Supreme Court

70 Pa. 465

Commonwealth versus Allen, Huhn and Shane.

Supreme Court of Pennsylvania.

February 2, 1872.

February 12, 1872.

February 2d 1872.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Philadelphia: No. 228, to January Term 1872.

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W. H. Rawle and F. C. Brewster, Attorney-General (with whom was J. J. Ridgway, Jr.), for Commonwealth, plaintiff in error.— When a question is really not matter of privilege, the jurisdiction of the courts will not be ousted by the declaration of Parliament that it is matter of privilege: Stockdale v. Hansard, 11 Ad. & Ellis 253. Where a statute declares that the commission of a certain act shall work a forfeiture of office, the jurisdiction of the courts will not be ousted by being told that it is a mere matter of qualification: Regina v. Paty, 2 Lord Raymond 1105; Murray's Case, 1 Wils. 299; Lord Mayor's Case, 3 Id. 205; Burdett v. The Speaker, 14 East 1; Rex v. Hobhouse, 2 Chitty 207.

Where a statute declares a thing to be void — an office to be forfeited, and therefore gone — there is nothing to try; the house has no privilege, and the jurisdiction of the courts attaches to carry out the law by judgment of ouster in quo warranto: Commonwealth v. Pike Beneficial Society, 8 W. & S. 247; Queen v. Bolton, 1 Queen's Bench 66; Ex parte Amy Long, 29 Eng. Law & Eq. 194; Queen v. Grant, 14 Queen's Bench 43; Queen v. Evans, 3 Ellis & Black. 363; Society v. Vandyke, 2 Wharton 309; Toram v. Association, 4 Barr 519; Com. v. Leech, 8 Wright 332; Lamb v. Lynd, Id. 336.

The forfeiture occurs whenever the councilman is at the same time a surety; and it is immaterial whether he was surety before and councilman afterwards, or councilman before and surety afterwards. The moment the two occur, the forfeiture comes in, and the court has jurisdiction to enforce the forfeiture by quo warranto: Cleaver v. The Commonwealth, 10 Casey 284.

W. Ernst and J. C. Bullitt (with whom was J. I. Doran), for defendants in error.—The councils being the sole judge of the qualifications of its members, and having in their hands the remedy to impeach and expel these defendants for this or other misdemeanors in office, or other sufficient cause, has exclusive jurisdiction of the case: Commonwealth v. Leech, 8 Wright 332; Lamb et al. v. Lynd, Id. 336; Kerr v. Trego, 11 Id. 292, 299.

Here is the remedy by impeachment expressly provided, and that remedy must be followed in exclusion of others; but if the cause for which the offender is thus punished is a public offence he may be also indicted, tried and punished, according to law:" Barker v. People, 3 Cowen 705.

The forfeiture imposed by the sixty-sixth section of statute March 31st 1860, is part of the punishment for violating its provisions, and does not take place on the commission of the crime, but is the consequence of the final judgment of the tribunal having jurisdiction of that part of the punishment; 2 Blackstone's Com. 267; Bishop's Crim. Law, § 609, 646; Bacon's Abridg. Forf. E.; Fire Dep't. v. Kips, 10 Wendell 266; Regina v. Douglas, 13 Ad. & Ellis N. S. 42; Huber v. Reily, 3 P. F. Smith 112; King v. Heaven, 2 Term Rep. 782.

Whenever the law prescribes the manner of contesting an election that course must be pursued, and a quo warranto will not lie at the instance of the Commonwealth to test the right to the office: Commonwealth v. Garrigues, 4 Casey 11; Commonwealth v. Baxter, 11 Id. 263; Commonwealth v. Leech, 8 Wright 332. Even in a case of the actual conviction of a member, for a crime declared by law a disqualification to hold office, the court could not interfere should the legislative body permit him to become or continue a member: Barker v. The People, 20 Johns. 457, and 3 Cowen 686.

The defendants were not disqualified from being elected and holding office, although their acts whilst in office may have been a disqualification: Rex v. Chitty, 5 Ad. & El. 607; Regina v. Mayor of Leeds, 7 Ad. & El. 963.

The opinion of the court was delivered, February 12th 1872, by AGNEW, J.

We cannot doubt the jurisdiction of the court in this case. There is no true analogy between the state legislature and the councils of a city. Their essential relations are wholly different. The councils are in no proper sense a legislature. They do not make laws, but ordinances; nor are the members legislators, with the constitutional privileges and immunities of legislators. The councils owe their existence, their rule of action, their privileges and their immunities solely to the law, which stands behind and above them; and their ordinances have their binding force, not as laws, but as municipal regulations only by virtue of the law which infuses them with vigor. Hence all those decisions which evince the unwillingness of courts to interfere with the members of the legislature have no place in the argument. The legislature and the courts, deriving their existence from the Constitution itself, are co-ordinate, independent branches of the government, standing upon a footing of equality in the exercise of those powers which the Constitution imparts to each in its own sphere. It would ill become a court of justice to attempt to displace a member of Assembly. Its desertion of its appointed orbit would be followed by such a display of incompetency to effect its purpose as would be its most signal rebuke. This distinction between a legislative body, representing the people, the primary power in the state, was directly in the mind of the chancellor who decided Barker v. The People, 20 Johns. 457, a case strongly relied on by the defence. He said: "The disqualification pronounced by the court would then fail to produce exclusion from the legislature; but it would, nevertheless, be effectual to exclude from all other public stations. Its effect in respect to all other public employment must be decided by the tribunals of justice." If the councils of a city, no matter how large, may defy the law under which they exist and exercise all their powers, so may the councils of the most humble borough, and thus the law of the land be violated with impunity, unless the courts of justice have power to curb their deviations and correct their misdeeds. The right of this court to issue the writ of quo warranto to determine questions of usurpation and forfeiture of office in a public corporation cannot be questioned. Its powers, fully established by the General Assembly, 22d May 1722, 1 Smith's Laws 131, and repeated in the Act of 16th June 1836, Purd. 928, pl. 19, have been recognized in numerous decisions, to some of which I may refer: Commonwealth v. Arrison, 15 S. & R. 130; Commonwealth v. McCloskey, 2 Rawle 379-81; Commonwealth v. Jones, 2 Jones 365; Cleaver v. Com., 10 Casey 283; Lamb v. Lynd, 8 Wright 366; Updegraff v. Crans, 11 Wright 103; Kerr v. Trego, Id. 292. The second section of the Act of 14th June 1846, Purd. 832, pl. 2, confers upon the Courts of Common Pleas the power to issue writs of quo warranto concurrently with the Supreme Court in the cases enumerated, within which the present clearly falls. The cases cited by the defence against the exercise of the power by quo warranto, to remove one who has forfeited an office, have little weight. The Commonwealth ex rel. Duffield v. Laughlin, was an application for a mandamus to restore Duffield to a seat in council, after the common council had removed him for cause. The council had judged and determined the case, and this court refused to rejudge it, because it fell within the power of the council to determine the disqualification. This is no authority against the power of the court to remove one who has forfeited his seat by a violation of law, which the council has neglected or refused to redress. The Commonwealth v. Barger was the case of a motion for a quo warranto founded on the provision of the city charter that "no member of the state legislature shall be eligible as a member of councils." Says the opinion: "This law is express that one who is a member of the legislature cannot be elected to council; but does not say that a councilman, on becoming a member of the legislature, loses his seat in council." The latter question the court declined to decide and refused the motion. It is evident that the mind from which the opinion emanated was laboring under the impressions produced in writing the opinion in Duffield's Case, which is referred to, but which has no possible reference to such a case as that now before us.

The question as to the quo warranto evidently received but little consideration. As to the English cases of King v. Heaven, 2 Term Rep. 772, and King v. Ponsonby, 1 Vesey, Jr. 1, all that need be said is that they are inconsistent in the application now made of them, with the practice in this state, as shown by the authorities already cited. The quo warranto...