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ought to have acted in strict conformity with the law of the land, have given notice to the member that a charge was made against him, and have given him an opportunity to come in and defend himself. It is admitted, that no such opportunity was given, and therefore, he had no knowledge of what was going on; it was done without a hearing, and without a charge being made. This is a case where the court ought to interfere on behalf of the citizen, or we may have a state of things where the citizens will defend their rights, not by a mandamus, but by the strong arm. We say you shall not do this, unless you do it in strict accordance with the terms of the constitution.

The motion to quash is overruled.

The defendants, thereupon, filed a return and answer, setting forth, that Thomas J. Duffield held an incompatible office, being inspector of clothing at the United States arsenal, and having received such appointment from a "Head of Department," to wit, the secretary of war; and that in declaring his seat vacant, they acted in the exercise of their legislative duty, as councilmen, for which they could not lawfully be questioned in any other place; and they submitted that, if their action was irregular for want of notice to the relator, inasmuch as they were desirous of conforming to the decision of the court, and of doing their whole duty in the premises, they were willing forthwith to rescind the resolution complained of, and to proceed to inquire into, judge and determine the question of the alleged disqualification of the relator to be a member of the said common council.

F. C. Brewster, for the relator, upon the presentation of this return, moved for judgment, and the allowance of a peremptory mandamus.

Phillips and Wharton, contrà.


THOMPSON, P. J. This case is a peculiar one; the return sets forth certain facts, and concludes by suggesting that the parties are willing to submit to what is supposed to be the law, as announced by the court; it presents the case in a double aspect. Upon the coming in of this answer, the relator's counsel have asked for a peremptory writ, in view of the insufficiency of the return; that, according to our practice, is not strictly in form; in the case of Commonwealth ex rel. Thomas v. County Commissioners, 32 Penn. St. R. 218, it has been ruled, that the practice has been changed by statute, and that "an unsatisfactory return is required to be replied to, by demurrer, plea or traverse; under our statute, the case then assumes the form of an ordinary action at law, and all questions properly arising are to be tried in the same manner as was formerly done at common law, in an action for a false return; if judgment be given for the party suing the writ, a peremptory writ of mandamus issues, without delay, as if the return had been adjudged insufficient; at common law, a judgment is not necessary to support the peremptory writ; under our statute it is. Such, in brief, is the statutory mode of proceeding in suits of mandamus; and because it is expressly enjoined by the act of 14th June 1836, and necessary also for the sake of the symmetry of the record, we shall treat the motion and argument made on behalf of the relator, as a demurrer to the return of the respondents, and proceed to consider the case, as if it had been entered in form." That is precisely the course we intend to pursue here; where a motion is made to disallow, the court will take it to be as if demurred to.

The answer does not set out matters which are material to the case; they are entirely immaterial. It is admitted, that there was no hearing. No demurrer that we can conceive of, would better present the case upon that point, and that is the only point that we consider important; and therefore, we determine to consider this as a demurrer,


so that the record may be correct, and we decide the case upon the sufficiency of the demurrer. If the supreme court has made a mistake in this respect, we but follow their decision. It is admitted upon the face of the answer, that this did take place, when the relator was not present, and when he could not enter his defence; he was, therefore, improperly and illegally removed. It is no answer to that, to say, that the facts upon which the motion was made can be established; it is too late to take that position; the party must be restored to his rights, before there can be any justification; we must restore him by act of law, to which he has appealed. There is another ground upon which the court feel justified in deciding this motion; we think this answer amounts to a submission to the action of the court; the parties state certain facts, and then say, we admit that we ousted this relator, and we will put him back; that is saying to the court, “we submit ourselves to whatever action the court pleases to take, although we assert that there are certain facts which would justify our action." They say they will undo that which they have done. If they are actuated by that sense of right which the law has enabled them to comprehend, and are willing to restore, it is the duty of the court to enforce that restoration. The writ is allowed. Peremptory mandamus awarded.*

After the delivery of this opinion, and the restoration of the relator, the council appointed a committee to examine and report whether or not Thomas J. Duffield had not vacated his seat as a member of common council, who, after hearing the case (Mr. Duffield attending with his counsel), reported that inasmuch as Thomas J. Duffield had accepted an office under the government of the United States, incompatible with that of councilman of the city of Philadelphia, he had thereby resigned his seat as councilman and that the same was vacant. This report was accepted on the 31st December 1862, and the seat of the

* This judgment was reversed in the supreme court, for irregularity.


said Thomas J. Duffield was thereupon declared to have been vacated. The relator thereupon petitioned the court of nisi prius for a writ of mandamus to restore him to his office.

LOWRIE, C. J., delivered the opinion of the court.* On the 4th of December last, the common council of Philadelphia declared the seat of Thomas J. Duffield vacated, because he had accepted an office of trust and profit under the United States, to wit, the office of general superintendent of the clothing depôt of the United States arsenal; but he was restored by a mandamus from the common pleas, because the common council had proceeded without notice, and perhaps for other reasons; and afterwards, the judgment of the common pleas was reversed in this court, because of irregularities in the proceeding there, no other question being then decided here. After his restoration, the common council proceeded in more regular order, and removed him again; he now applies to this court for a mandamus to restore him, on the ground that the office held by him is not incompatible with the office of councilman. Along with other matters, raising a question of disputed fact, not now to be discussed, the councilmen, in their return, claim that their act in vacating the relator's seat, is not subject to review and correction by the courts, and to this the relator demurs; and this raises the question of law, whether we have authority to interfere. It is the only question now to be discussed.

The common council removed the relator, because, during his term as councilman, he had accepted an office under the United States, and because they supposed that he had thereby become disqualified to exercise the office of councilman; and they justify the reason assigned, by referring to the charter act of 2d February 1854, § 4, which says, that "the members of the common council shall have the same qualifications as are required by the

* Reported in 20 Leg. Int. 100.


constitution for members of the house of representatives;" and to the constitution, Art. I., sect. 19, which says, leaving out irrelevant words, that "no person holding any office under the United States, shall be a member of either house (of the assembly) during his continuance in office.” Putting these two clauses together, mutatis mutandis, they may read thus, "no person holding any office under the United States, shall be a member of either council during his continuance in such office." This is the law under which the common council acted in removing the relator, and which they applied to his case.

We have, therefore, no difficulty in defining the function which the council was exercising when it removed the relator; it was judging of the qualifications of its members. The question of holding an incompatible office (as well as those of age, residence and citizenship), is always a question of qualification, and is everywhere so spoken of; and this question may be raised at any time, as well after the person elected has been sworn into office, as before. In nearly all the cases cited in the argument and referred to in the case of Commonwealth v. Binns, 17 S. & R. 219, the question was not raised until after the officer had been inaugurated, and very often the incompatible office is accepted during the continuance of the one in relation to which the question of qualification arises. The case is, therefore, quite distinct from one of contested election, or of expulsion for misbehavior in office or for the commission of some infamous crime.

What, then, is the tribunal that is to decide whether a councilman has become disqualified, by the acceptance of an incompatible office? The answer to this question is found in the charter act of 1854, § 35, which declares, that the respective councils "shall, in like manner as each branch of the legislature, judge and determine upon the qualifications of their members." The proper council has judged and determined this question of qualification; and now the question is raised, what authority have the

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