(Mandamus to elect.) ing to different degrees and forms of civilization. True and natural social liberty is, therefore, a liberty regulated by law, and law must be the social rule of conduct, though it is very far from applying to all social conduct; we are free under it, because and in so far as it fits us; and we are free outside of it, in the thousands of acts of our lives, which it does not profess to regulate. But official conduct is never free from law; it is always regulated more or less straitly; it must follow the path prescribed to it; the law of society, and not individual will, is the measure of its freedom; and it is only thus that individual liberty is secured against official arbitrariness. This plea of the defendants shows, that they are attempting officially to meddle with functions that do not officially belong to them, and to control the action of others over whom they have no authority. They refuse to join those whom the law has appointed to act with them in a particular business, because they think that the law, as actually carried out, has not rightfully appointed their colleagues in the business; they refuse to do their duty, because, in their misapplied judgment, others have not done their duty well. Thus, they undertake to dictate duty to others, and guide their conscience, instead of carefully keeping their own; this is a very common fault, and no doubt will continue to be, until men become better instructed in the law of liberty, and we mean no censure in exposing it. No doubt, the defendants have satisfied their conscience in so acting against law, by appealing to some principle which they suppose to be more obligatory than civil law; but they ought to know, that it is by civil law only that their official duties can be defined, and by civil law we must judge them. If, therefore, they may appeal from that law, we have no tribunal that can try their appeal, and there can be no earthly one to try it, except that which is found in wars and revolution-human force; and surely this is not a more intelligent tribunal than those which the law provides, imperfect as they may (Mandamus to elect.) be. An appeal from the law of official duty, except to the law-making power, can be nothing else than usurpation or rebellion or revolution; and we are sure the defendants mean none of these things. In all cases of usurpation and rebellion and revolution, and in all partisan disputes and contests, both parties appeal to other principles than those expressed by the law, and yet the differences continue, until settled by some definite law, very much to the dissatisfaction of men of extreme views. Let men in and out of office criticise and censure official conduct according to the dictates of their skill and prudence; the law allows this; but let them not attempt to correct civil disorders, by a revolution of the law of their office. It is not pretended, that there is no common council known to the defendants, for it has been acting, for a considerable time, in concert with the select council, in the passage of ordinances, and even in joint meeting for the election of certain functionaries; the reason for their stopping now may be connected with the outside pressure spoken of in the return. And now we may add, that the excuse we have been considering is guilty of the fault of attacking title to office, in a collateral way, which, it is well known, is never allowed. Again, the defendants seek to excuse themselves for disobeying existing law, by saying, that they are about to propose a change of the law, and they offer some important reasons in favor of the change, with which we have nothing to do. But if, because they propose a change of the law, they cease to be bound by it, then the individuals composing the law-making power, may always be exempt from law, because they may always allege a purpose to change, which is absurd; when they actually abrogate it, they are free from it, and not till then; they may change the law now, and that will free them from its duty; but the law is in force now, and declares their present duty. We cannot sustain either of the excuses offered. (Mandamus to elect.) We think, moreover, that the defendants ought to have verified their return by their affidavits; but that is now an unimportant question in the case. Peremptory mandamus awarded. The doctrine that a municipal body that is authorized by statute to judge of the election and qualification of its own members, is the exclusive judge thereof, and that the courts have no jurisdiction in the premises, is re-affirmed in Commonwealth v. Leech, 44 Penn. St. R. 332; and the same conclusion was arrived at in Commonwealth v. Loughlin, 20 Leg. Int. 100; and Commonwealth v. Barger, Ibid. 101. (And see Commonwealth v. Garrigues, 28 Penn. St. R. 9; Commonwealth v. Reed, 18 Pittsburgh Leg. Journal 131.) But in none of these cases is there any reference to the older decision of the supreme court of Pennsylvania, in Commonwealth v. McCloskey, 2 Rawle 369 (ante 196), where it was held, that such a grant of power did not oust the jurisdiction of the courts in quo warranto; and the same principle was involved in Commonwealth v. Small, 26 Penn. St. R. 31. The modern decisions appear to be founded on the idea that, as the two branches of the legislature are the judges of the election and qualification of their respective members, to the exclusion of the judicial department, therefore, the grant of a similar power to a municipal corporation, will carry with it a similar exemption from judicial revision; but it must be remembered, that the power residing in the legislative bodies is granted to them by the constitution, and that, being a co-ordinate branch of the government, their decision upon a question clearly within their jurisdiction, must be necessarily exclusive; a municipal corporation, however, is the mere creature of the law, and to hold that a grant to them of the power to judge of the election and qualification of their own members, necessarily carries with it the constitutional privilege of the legislature of being exempt from the judicial supervision of the courts, would appear to be a strained construction of the law. See Kerr v. Trego, 47 Penn. St. R. 295 (ante 635). And the point can hardly be deemed a settled one, until Commonwealth v. McCloskey be formally overruled. The power of a court of last resort to overrule a solemn decision of their own, made upon full argument, is, at best, of doubtful propriety; it is well known that, in England, the House of Lords does not possess the power to overrule (Mandamus to elect.) a former decision of the house, the only remedy being the passage of an act of parliament, changing the law; and it would add much to the respect which ought to be entertained for such a tribunal, if our own courts of last resort were subject to a similar restriction. We have had some lamentable instances, of late years, of the overruling of former solemn decisions, on a change in the political majority of courts, which has much lessened the respect formerly entertained by the people and the profession for their judgments. If the president and board of trustees of an incorporated town have neglected to give the requisite notice for holding the annual election for the new board, within the year for which they were elected, as required by law, and refuse to do so afterwards, they will be compelled to perform their duty, by mandamus. People v. Town of Fairbury, 51 Ill. 149. KERR v. Trego. In the Supreme Court of Pennsylvania. JANUARY TERM 1864. (REPORTED 47 PENNSYLVANIA STATE REPORTS 292.) [Organization of municipal legislative bodies.] The test for ascertaining which of two divisions of a municipal legislative body 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, in accordance with the laws, customs and usages of similar bodies, in analogous cases. Where an ordinance of the common council of Philadelphia provided that the clerk and assistant-clerk should continue in office until the organization of the new council, and until their successors should be duly elected; and at the organization of a new council, there were present twenty-three members whose term of office had not expired, including the president of the preceding year, who with the clerks were in their usual places at the time appointed for the organization of the new council; it was held, to be the right of the said officers to organize the council by first calling the roll of the members holding over, and then requiring the members elect to present their certificates of election, that their names might be enrolled; and that any interference therewith was irregular and improper. The certificate of election, sanctioned by law or usage, is prima facie evidence of title to the office, and can only be set aside by a contest in the forms prescribed by law. Any interference with the due organization, by a division of the body, claiming to be the common council, will be restrained by injunction. This was a bill for an injunction exhibited by Wilson Kerr and others against Charles B. Trego and others, setting forth that the complainants had been, since the first Monday of January 1862, members of the common council of the city of Philadelphia, and that their terms of office would not expire until the month of January 1864; that Wilson Kerr was duly elected president of the said body on the first Monday of January 1862, and had since acted as such. That it was the duty of the said continuing members of council to receive, at the city-hall, on the |