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subject-matter, being one in which the commonwealth is a chief party in interest, plainly indicates an intention to bind the state; if this were not the construction, the statute would be almost inoperative. It is, therefore, our opinion, that the remedy prescribed by the act of 1854 excludes all other remedies for matters which might have been investigated in the form prescribed by that act.
It is not necessary to determine how far this statute binds Henry Wynkoop; he is not a party to this suit; he has carefully avoided becoming the relator or in any way making himself liable for costs. The 13th section of the act of 13th April 1840, applies to writs of quo warranto brought by individuals, in which the controversy is "between persons claiming to be duly elected." It does not, therefore, apply to this case; if it did, it is repealed by the act of 1854, so far as the former is repugnant to the provisions of the act last mentioned. It follows, that the defendant is entitled to judgment on the demurrer.
Judgment for defendant.
COMMONWEALTH V. MEESER.
In the Supreme Court of Pennsylvania.
JANUARY TERM 1863.
(REPORTED 44 PENNSYLVANIA STATE REPORTS 341.)
A quo warranto will lie to test the right of a person to a seat as a member of a municipal legislative body, though it have power to decide upon the election and qualification of its own members, where the claim rests on an election to fill a vacancy which did not exist; the court cannot inquire into the regularity of the election, but it can decide whether there was an office or a vacancy to be filled.
This was an application by Henry E. Wallace and Edmund S. Yard, for a writ of quo warranto, to test the right of the defendant to the office of a member of the common council of the city of Philadelphia. The suggestion set forth that the Fifth ward of the said city, having less than 4000 taxable inhabitants, was entitled to but one member of common council; that William M. Baird was elected to said office in 1861 for the term of two years, and that his term of office had not expired; that at the election in 1862, five votes were cast for the defendant, in virtue of which the return judges had fraudulently given him a certificate of election, and that on such certificate he had been admitted to a seat in the common council by the officers thereof.
LOWRIE, C. J., delivered the opinion of the court. It would be a vicious rule of law that would allow all public officers to be annoyed by a quo warranto, at the pleasure of every intermeddler or malicious person, and therefore, we have hesitated in granting this writ at the suit of a private person; but it is quite apparent, that the relators here really represent a large and respectable political party,
and are not induced to act by mere personal motives. And we observe that by the act of 24th April 1854, § 3 (not cited to us in arguing these disputes, and not before noticed by us), any tax-payer may obtain an injunction against any violation of the charter-law of the city, and we may take this as a fair analogy for granting this writ, especially, as we can always prevent the abuse of it, by the exercise of the discretion that belongs to all prerogative writs. Yet, it is not without some hesitation, that we pass this objection, and come to the essential question of the cause.
Is there a reasonable cause shown for disputing the defendant's title to the office of common councilman? We think there is: it is denied that there was any vacancy to be filled for the Fifth ward, at the time of the last election, and this appears to be well founded; for it does not appear that the ward had 4000 taxable inhabitants on the list of taxables of the preceding year, and the sheriff issued no proclamation for an election for the office, and therefore, the people did not understand that there was to be an election for it, and only five of them, out of nearly 4000 taxables, voted. This ward has already one member, and is not entitled to another, unless it had 4000 taxable inhabitants. Here, then, are the regular steps to a valid election; an official list of taxables of the preceding year, showing 4000 taxable inhabitants; a proclamation of the sheriff of a vacancy to be filled, which proclamation is expressly required; and an actual election, in pursuance thereof, conducted by the proper officers and certified as the law directs; if any of these steps be wanting, then the election was irregular, and the defendant's title to the office was, at least, doubtful. But let us be careful here; this court has no authority to judge whether the election was regularly conducted or not, for that duty is assigned by law to the councils; our duty must be confined to the decision of the question, whether there was an office or vacancy to be filled.
Was there a vacancy in the representation of the Fifth ward, that could be lawfully voted for at that election? was there the competent number of taxable inhabitants? The relator relies on the record to show that there was not, and the defendant appeals to oral evidence that there was; one sticks to the letter and form of the proceeding, and the other appeals to the spirit and substance of it. How shall we dispose of this appeal? No doubt there are very many cases, in which a strict adherence to the letter of the law would be destructive of justice, and it is quite impossible for the law to define, with precision, all the customary rights of a people, or to express exactly the duties arising from the ever-changing forms of social transactions; there is a very large field of social relations, wherein the law, whether statutory or customary, must ever remain somewhat indefinite, in order to be adapted to society. But is it so with our election laws? We think not all our electoral rights depend on written law, and it only can define them. It is true, that written law depends itself on ulterior principles of natural law; but those principles are subject to very great diversities of application, and lack entirely that definiteness which is an essential quality of law as a rule of common or social conduct; law is intended to be a definition of those principles, in such a form as to fit them for a ready and ordinary use, and to avoid the disputes that necessarily grow out of more general principles. And nowhere is clear and precise definition more needed, than in the laws that relate to the organization of society, and to the maintenance of its organic forms; form is the sole purpose of them, and we must view them formally, and follow them strictly, else the whole society is very apt to be disturbed. No latitude or looseness of administration of the law is tolerable, when it endangers the peace and order of society; it ought to be so steady, as not to be at all shaken by partisan excitements.
The defendant thinks that his ward is entitled to two
members of council, if it has, in fact, 4000 taxable inhabitants. But this is not the law; it is, that it is so entitled, only in case it has so many, "according to the list of taxable inhabitants for the preceding year;" their representation is, therefore, not according to taxables, but according to the inhabitants actually taxed, and placed on a particular list, as taxed; all taxables ought to be on that list; but the right depends not on this, but on the fact that they are so. What is the list of taxables? Under the charter act of 1854, and no doubt, long before, this was no other than what is usually called the assessment-book; but in the supplement of 13th May 1856, § 6, this is changed in a way that may cause some uncertainty, unless care be taken; it requires the assessors to make out, of course, from the assessment-book, "an alphabetical list of all the taxables, to be returned to the commissioners with the assessment-book, to be used for election purposes." This, then, is the list by which the representative number is to be ascertained, and we must take it as we find it returned into the commissioners' office by the joint act of the assessors, and by it the sheriff must be guided in proclaiming the number of common councilmen to be elected in each ward; for election purposes, it is a record. Many names in the tax-list of the ward of the year 1861, are erased, by red lines drawn through them, and they must, for the fixing of the representative number, stand as now written there; only what are left appear to be the joint act of the assessors. If any one has fraudulently erased them, let him be punished for it, by refusing him all compensation, or by other penalty. The erasure rather seems to have been properly done; and it is admitted, that the unerased names do not amount to 4000. Without speaking, therefore, of the want of the sheriff's proclamation, or of any real election by the people, we think the relators have shown good cause for the writ.
Quo warranto awarded.