(Organization of municipal legislative bodies.) first Monday of January 1863, the new members thereof, with a view to the due organization of the common council; and for that purpose the complainants, together with the clerk and assistant-clerk of the preceding year (the said Wilson Kerr acting as president), met at the time and place appointed by law, and admitted and received certain members of the said council, who presented themselves for that purpose, and who had been duly elected as such at the last general election, and with the newly-elected members, composing a quorum of the whole body, duly organized the said body as the common council of the city of Philadelphia. That ten of the defendants, improperly and illegally acting in concert with the other defendants, by a prearranged plan, did, at the time and place appointed for the assembling of the said body, and whilst the said Wilson Kerr was in the chair, and duly acting as president, and whilst the other complainants were duly assembled to receive the newly-elected members, clamorously and illegally interfere with the proceedings of the complainants, composing the said common council, and did, by disorderly and violent outcries, proclaim Charles B. Trego, one of the defendants, president, and Gordon and Stewart clerks of their meeting or assembly; and did attempt to and did interrupt the regular and orderly transaction of the business of the said common council, and by such conduct did endeavor to prevent the complainants from duly acting in the matter of deciding upon the qualifications of persons claiming to be members of common council, and of considering and deciding upon the claims of certain contestants to seats therein. And at the next stated meeting, the defendants did again intrude themselves into the council-chamber, and continue to act as and call themselves the common council of said city, and intended as such to pass laws and ordinances for the government thereof. And the defendants threatened and intended to continue so to intrude, and to interfere with and prevent (Organization of municipal legislative bodies.) the orderly and lawful transaction of the public business. That the defendants threatened and intended, in pursuance of their said usurped and illegal action, to pass resolutions and ordinances appropriating the public moneys, and to direct their clerk to draw orders upon the city treasurer, and to present such orders to the city controller for allowance and payment out of the city treasury. The complainants moved for a preliminary injunction to restrain the acts complained of in the bill. The motion was heard, on affidavits, the defendants contending that, in consequence of frauds in the election of certain members, recognised by the complainants, the Kerr branch of the common council had not a quorum of members, and were, therefore, without power to elect officers or transact business; that Mr. Kerr had no authority to call council together; and that the printed list of members prepared by the clerk, containing, as it was alleged, the names of at least two persons who were not legally elected, showed an intention to admit them as members of council. Porter and Wharton, for the complainants. Sellers, Gibbons and Gilpin, for the defendants. LOWRIE, C. J., delivered the opinion of the court. 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 (Organization of municipal legislative bodies.) 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 affidavits 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 right. 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, 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 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 equitable 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 as this one; if a private partnership or corporation were to fall into similar confu (Organization of municipal legislative bodies.) sion, 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 have 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 entrusted, 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, 30 Penn. St. R. 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 prima facie written title to the office, and can be set aside only by a contest in the form prescribed by law; this is not now disputed. No doubt, this gives great power (Organization of municipal legislative bodies.) 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 competency, 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 already alluded to. The courts can never apply it to divisions in the supreme legislature, because that body is subject to no judicial authority, and cannot be; they, too, ought to adhere to this rule, for order and regularity are always worthy of respect, and especially so, in cases where there is no authority that can enforce their claims. But we need not dwell on this point, for it is admitted, that this rule is the test of legitimate organization. 6. Judging by this rule, was the Kerr body legitimately organized? We think it was. The undisputed facts are, that there were twenty-three members, including the president last elected, whose terms had yet a year to run; that the clerk and assistant-clerk were still in office, having been elected under a yet existing ordinance of 5th May 1855, § 6, that declares, that they shall continue in office until the organization of a new common council, and until their successors shall be duly elected; that on the day and at the hour appointed by law for the organization of the new council for this year, the president and clerks elected last year were in their usual places, and then and there proceeded first to call the roll of all the members whose terms of office had not yet expired, and then to call on the new members to present their certificates of |