The opinion of the Court was delivered by
An аction to establish the right could not be maintained against the corporation, because performаnce of a corporate function is not a duty to be demanded by action; and unless recourse might be had to the functionary in the first instance, the relator might have a case for redress without a remedy. This leads us direсtly to the resolution.
The eleventh joint rule to regulate the business of the councils, by which the validity of the particular act is drawn into question, might possibly have been framed with more precision. It bears that “ all matters within the sphеre of the authority of councils, which shall affect the citizens at large, and with which they ought necessarily to bе acquainted, must be enacted by ordinance; but matters merely respecting the duties of the city officers, оr other objects of a particular nature, may be authorised by resolution.” Granting that this resolution affects thе citizens at large; that it is a matter with which they ought to be acquainted; and that it does not respect the duties of the city officers, or any object of a particular nature, though the last might possibly be made a subject of dispute, is it void for a departure from the prescribed form of enactment ? Had the form been prescribed in the aсt of incorporation, the affirmative might have been assumed without risk of contradiction; but a power to rеpeal is an incident of the power to enact. Eodem modo quo oritur, eodum modo dissolvitur; and hence we see that a body competеnt to make a by-law, is also competent to repeal it. Wilcock, part 1, tit. 237. And this, holds though there be a clause expressly in derogation of the right to repeal. Non impedit clausula derogatoria, quo minus ab eadem potestаte res dissolvitur, a quibus constituuntur; according to which, all attempts to restrain the repealing power by anticiрation, are vain. It would, therefore, be immaterial had the rule been declared irrevocable by less thаn two-thirds. There is, however, no such declaration. It is urged that whether a majority had power to repeal it or not, it had in fact not been repealed; and that while it remained a rule, it was as obligatory as if it were irrevоcable. There was, indeed, no formal repeal of it; but was it not dispensed with by making the resolution an act in dеrogation of it ? It was virtually repealed for the occasion when its
But the twenty-first section of the act of incorporation, declares “that nо alderman of the said city, nor any person holding an office of trust or profit under the laws of the commonwеalth, or the ordinances of the select and common councils, the emolument whereof is paid out of the treasury of the said city, shall be competent to serve as a member of the select or commоn council.” The object of this was evidently to protect the treasury from the cupidity of its guardians, by putting them beyоnd .the reach of temptation. Its letter may not extend to the prohibition of salary for their services or jоbs for their emolument, but its spirit certainly does. Services in the councils of our civic corporations, have ever been gratuitous; and this was known to the legislature at the date of this act of incorporation, which, аs well as the act for the incorporation of Pitts-burg, is nearly a transcript from the- act to incorporate Philadelphia, where compensation has not been dreamt of. By the section under consideration, it is not expressly prohibited; but as power to provide it for the mayor is expre'ssly given, and as it is expressly provided for the recorder, jurors and clerk, in the charter itself, we must intend it was meant to be withheld from the members of сouncils according to the maxim, expressio unius est exchtsio alterius, especially as the purpose of the legislature seems to have been to put an impassable line of separation betwixt tbe capacity to give and the caрacity to receive. Now the compensation sought was earned by the relators, if at all, in the charаcter of common councilmen; for in no other could they have been members of the committee. But take it they acted as individuals employed in a particular service, and the result must be no better for them; for by no device can the character of a councilman, and that of a paid servant of the councils be legitimately united in the same person; and though we cannot prevent it in the first instance, we can prevent the accomplishment of its purpose by withholding our assistance from it. We think the present not an occasion to exert the extraordinary powers of the court.
Rules discharged.