44 Pa. 341 | Pa. | 1863
On hearing, the court awarded the writ, and filed of record the following opinion, which was delivered, by
It would be a vicious rule of law that would alloAV 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 relator here really represents a large and respectable political party, and is 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.
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 four thousand 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 four thousand taxables voted.
This ward has already one member, and is not entitled to another unless it had four thousand taxable inhabitants. Here, then, are the regular steps to a valid election : an official list of taxables of the preceding year, showing four thousand 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 are wanting, then the election was irregular, and the defendant’s title to the office is 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 lawfully be 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 eases 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 frtím 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 their definiteness, which is an essential quality of law as a rule of common or social conduct. Law is intended to be a definition
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 four thousand taxable inhabitants. But this is not the law. It is that it is so entitled only in ease 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. Butin 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 commissioner’s office, by the joint act of 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 ink lines drarvn through them, and they must, for the fixing of the representative number, stand as nojv 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 four thousand. Without speaking, therefore, of the want of the sheriff’s proclamation, or of any real election by the people, we think the relator has shown good cause .for the writ.
Rule made absolute, and the writ of quo warranto awarded, returnable on the 13th day of March next.
