98 Pa. 607 | Pa. | 1881
delivered the opinion of the court,
Two persons, describing themselves as citizens of the city of Erie, in the county of Erie, in this state, presented their petition to the Court of Common Pleas of Erie county for ••a writ of quo warranto against the respondent as mayor of the city of Erie, to inquire by what authority he holds and exercises that office. Healey, one of the relators, subsequently presented a petition asking ieave to withdraw from the proceeding, and Butterfield, the remaining relator, filed an amended petition setting forth that he was a police officer of the city of Erie and Jhad been dismissed from his office by the respondent. It appears from Healey’s petition to withdraw that he also was a police officer who had been dismissed; that he had no desire to join in the proceeding, and only consented to do so in consequence of the importunity of Butterfield, and upon the promise of the latter that he should incur no cost, trouble or expense by joining with him in the petition. It thus appears that the relators are mere private citizens, having no interest in the office of mayor nor any absolute title to be restored to their positions as police officers, in the event of the ouster of the respondent. A rule to show cause was granted by the court below, which was subsequently discharged at the cost of the relators, who thereupon removed the case to this court by writ of error.
We are clearly of opinion that the action of the court below in refusing the writ of quo warranto and discharging the rule to show cause, was right, and for various reasons. The remedy by quo warranto has been much considered by this court, and the circumstances in which, and the persons by whom, it may be invoked, have been clearly defined. It was long ago held in the case of Commonwealth v. Burrell, 7 Barr 34, that the writ would not lie at the suggestion of an individual against one
On p. 518, Lewis, J., said: “It has been decided in the Commonwealth ex rel. Murphy v. Farmer’s Bank of Schuylkill County (see ante, 415), that a stranger who has no interest in a corporation except that which is common to every citizen, cannot demand a judgment of ouster in a writ of quo warranto. The words ‘ any person desiring to prosecute the same,’ are in that opinion construed to mean, any person having an interest to be affected, or suffering a wrong to be redressed.” . . . . “No mere stranger should be permitted to demand the forfeiture of a charter granted by the Commonwealth when the state herself does not demand it.” In the case of Murphy v. The Bank, supra, it was held that, “ In questions involving merely the administration of corporate functions, or duties which touch only individual rights, such as the election of officers, admission
The next and more advanced step taken in the construction of the Act of 1836, was in the case of Commonwealth v. Cluley, 6 P. F. Smith 270. There the relator was a rival candidate for the office of sheriff in the county of Allegheny, and the object of the proceeding was to impeach the title of the incumbent and establish that of the relator. Here it would seem was a sufficient personal interest in the very subject of the controversy to warrant the procedure. But it was held, that although the relator had received 12,925 votes for the same office, being the next largest in number to the respondent, yet inasmuch as if he succeeded in ousting the respondent he would not be entitled to the office himself, he could not be heard to question the right of the respondent by quo warranto, and the writ was denied. On p. 272, Strong, <!., says: “ This court has construed the words, ■ any person or persons desiring to prosecute the same,’ to mean any person who has an interest to be affected. They do not give a private relator the writ in a case of public right involving no individual grievance.” . . . “ And it is to be observed that the legislature has placed all the five classes of cases enumerated in the act on the same footing in this particular. If a private relator cannot sue out a writ to enforce a forfeiture without having an interest, the statute gives him no greater right when he complains of usurpation of a county or township office. The right of a relator in each class of cases is defined by the same words.”
Of course, if the relator can show title to the office in himself he is entitled to the remedy. But here the relator does not pretend to claim the office for himself, nor that he has any interest in it. He was dismissed from service as a police officer by the respondent as mayor of the city, and apparently he seeks to punish the respondent for this act, by having him removed from his office. It is very clear the writ of quo warranto does not lie for such a person to accomplish such a purpose. It is true, perhaps, that the mayor of a city is not a county or a town ship officer, but he is a public officer elected by the people of the city over which he presides, and the character and functions of his office are of quite as much consequence as those of a poor-director, a road-supervisor, or any other township or county officer. He is certainly not to be regarded merely as the officer of a private corporation.
In addition to the foregoing considerations it has long been
“ What mischief then has been done in this instance by the choice of an ineligible mayor, if he be so? And who are they that come here to complain of it ? They do not pretend that he does not discharge the duties of the office with integrity and ability ; or that the interests of the corporation are jeoparded by an irregular or improper exercise of his functions. All the corporators but two are satisfied with him. A constituency of a hundred thousand souls are willing* to dispense with a provision in the charter for their benefit. The councils, the chartered guardians of their rights, have not moved ; the corporate functionaries have not moved and the unsuccessful candidate has not moved. Only two corporators demand a scrutiny ; and who are they ? It would be too much to say they are actuated by public spirit, or even by their own interest. They were dismissed from office, not for partisanship, but, as appears in the affidavits, for personal habits that unfitted them, and they could not expect to regain their places should the respondent be ousted. There is but one appetite to which the prosecution can be referred ; and to the gratification of it a court will never lend itself. It would waste its time and the public money, did it interfere for a defect of title so unproductive of consequences.”
It so happens that the facts and considerations here expressed are almost bodily applicable to the present case. The relators themselves aver their dismissal from office as policemen, and the respondent in his affidavit says this wras done for improper performance of their duties. It is perfectly manifest that a mere spirit of personal revenge is the animating cause of the application for the writ; but courts do not administer their functions for the gratification of such motives, and for that reason alone we should feel it our duty to sustain the learned judge of the court below in refusing the writ.
While it is not at all necessary to the determination of the case it is well enough to add that it is extremely doubtful, to say the least, that there is any merit whatever in the application. The respondent did take the customary oath, which was regularly adimnistered to him, as it had been to his predecessors in
Judgment affirmed. ;