Commonwealth ex rel. Gordon v. Graham

| Pa. | Mar 10, 1870

The opinion of the court was delivered,

by Read, J.

— This is a writ of quo warranto, and the suggestion, filed and verified by affidavit, sets forth the charter of incorporation of “ The First Reformed Presbyterian Congregation in the City of Philadelphia,” and that at the regular annual election for the members of the board of trustees of said congregation the said relators were in due and regular form of law elected as a board of trustees of said congregation, and have been recognised by the session of the said congregation as being in full communion with the said church; and it then charges that the defendants have notwithstanding used and do still use the franchises, offices, privileges and liberties of a hoard of trustees of said congregation, and have usurped and do usurp upon the Commonwealth therein, to the great damage of the constitution and laws thereof; wherefore the said relators pray the process of law against the said defendants to answer the said Commonwealth by what warrant they claim to have, use and enjoy the franchises, offices, privileges and liberties aforesaid. This court has jurisdiction of this case, and it is a proper case for the issuing of a writ of quo warranto (Commonwealth v. Arrison, 15 S. & R. 127; Same v. Woelpper, 3 Id. 29), as settled by the uniform course of decision and practice for more than half a century.

This writ was allowed by the Chief Justice, and the rule to show cause is entirely dispensed with: Murphy v. Farmers’ Bank of Schuylkill County, 8 Harris 415 ; Commonwealth v. Commercial Bank of Pennsylvania, 4 Casey 383. In these cases motions to quash were made, and in the first the writ was quashed, whilst in the second the motion to quash the writ was overruled. Since the case in 4 Casey, which was thirteen years ago, motions to quash seem to have fallen into disuse, and the course pointed out by the Act of the 14th June 1836 has been pursued, the defendants either answering, pleading, or demurring to the suggestion filed.

Upon a motion to quash, it must be for some defect in the suggestion itself, and not for any matter outside of it. Mere defects in form that can be amended will not he regarded. All th$ affidavits and evidence that have been put before us by either side must be laid aside, and we must confine our attention to the suggestion alone. The suggestion seems regular in form, and if demurred to, it would seem might hold water: 4 Casey 387. It asserts the title of the relators, which upon demurrer would seem to be sufficient. We do not so decide now, but a reasonable doubt, or rather a reasonable belief, that such might be the case must oblige us to refuse the motion.

We express no opinion whatever on the merits which have been so ably argued by the counsel on both sides, and confine ourselves to the naked legal question arising out of the motion to quash.

The motion to quash the writ of quo warranto is overruled.