Kerr et al. v. Trego et al.

• Decision Date: 26 January 1864
• Citation: 47 Pa. 292
• Parties: Kerr <I>et al. versus</I> Trego <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 292

47 Pa. 292

Kerr et al. versus Trego et al.

Supreme Court of Pennsylvania.

January 26, 1864.

IN the Supreme Court of Pennsylvania.

COPYRIGHT MATERIAL OMITTED

The case was argued by William A. Porter and G. M. Wharton, for complainants, and by Messrs. Sellers, Gibbons, and Gilpin, for respondents.

The opinion of the court was delivered, January 26th 1864, by LOWRIE, C. J.

On account of the immense importance of this case to the city of Philadelphia, we all consented to sit together at the hearing of this motion for a preliminary injunction, hoping that we might thus bring to a speedy termination this very unpleasant difficulty. We have heard and carefully considered the case, and now proceed to pronounce the judgment of the law upon it, without expressing any opinion upon the merits or demerits of any of the parties to it, beyond what is necessary to the decision of the very point of the controversy. We shall neither approve nor disapprove here what we have no authority to judge.

Some objections were made to some of the minor details of the bill, but we say nothing about them, for they may be amended at any time, and it is sufficient, on this motion, that the main features of the case are so fully set forth in the bill and affidavit as to justify the motion. It is clearly alleged and shown that there are two bodies which claim to be regularly organized as the Common Council of the city, and each is proceeding to act as such, to the great detriment of the public interests. This is the wrong that is to be remedied. One or the other party must be wrong: they cannot both be regular.

1. Have the courts authority to redress this wrong? We think they have. All bodies, except the supreme legislature, are under law, and, therefore for all transgression of law, are subject to the authority of the judicial power established by the constitution. The corporation itself is subject to this authority, in so far as its acts are directed by law; though it is not, and cannot be so in so far as it is itself a law-making power. In so far as its judgment and direction are uncontrolled by the law of the land, it is free from the control of the courts; but in so far as its acts are directed by law, it is subject to the judicial authority. Much more, then, are all its officers subject to this authority, and especially those that pretend to act as its officers without right, and as there cannot be two common councils, one of these bodies must be a mere pretender to the right to act as such.

2. May the wrongful body be restrained from acting by means of the equity remedy of injunction? We think it may. This remedy extends to all acts that are contrary to law, and prejudicial to the interests of the community, and for which there is no adequate remedy at law; and we can hardly imagine any act that more clearly falls within this description than one that casts so deep a shade of doubt and confusion on the public affairs of a city as this does. In such a case, no remedy is adequate that is not prompt and speedy, and we know of no other remedy that is so prompt and speedy as this one. If a private partnership or corporation were to fall into a similar confusion, affecting all its members and all its creditors, we can think of no better remedy than this for staying the confusion that would be caused by two opposite parties pretending to act as the society. It is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in the last year. Therein we decided directly on rights of property, because that became the aim of dispute. Here we must decide on the right to public functions, because that is here the purpose of the dispute. The main question in all such cases is regularity of organization, and the right to functions and property is a mere consequence of this.

3. May one of the conflicting bodies, or the members of it, maintain this action against the other? We think they may. This could not be doubted in relation to private corporations and partnerships. But it is argued that, in relation to public corporations, the attorney-general alone can file such a bill. We do not think so. It is right for those to whom public functions are intrusted, to see that they are not usurped by others. Either of these bodies has the right to demand of the courts that it and the interests of the public alleged to be committed to it, shall be protected against the usurpation of the other. We decided a similar principle in Mott v. The Railroad, 6 Casey 9, and we need say no more about it now.

This case is therefore regularly before us, and we proceed to the consideration of it, premising that there is no material fact in dispute, and that we have no authority to decide directly upon the validity of the election of any one of the claiming members.

4. In all cases of this kind, at least in all bodies that are under law, the law is, that where there has been an authorized election for the office in controversy, the certificate of election, which is sanctioned by law or usage, is the primâ facie written title to the office, and can be set aside only by a contest in the forms prescribed by law. This is not now disputed.

No doubt this gives great power to dishonest election officers, but we know no remedy for this but by the choice of honest men. When party fealty is a higher qualification than honesty or competence, we must expect fraud and force to rule, and a man must be an Ajax or a Ulysses to be qualified for office.

5. On the division of a body that ought to be a unit, the test of which represents the legitimate, social succession is, which of them has maintained the regular forms of organization according to the laws and usages of the body, or, in the absence of these, according to the laws, customs, and usages of similar bodies in like cases, or in analogy to them. This is the uniform rule in such cases. It is always applied in the case of church divisions, and was so applied by us three times last year in the church cases...