2 Rawle 369 | Pa. | 1830
The opinion of the court was delivered by
— On the 20th of March, 1829, the respondents were elected to serve for three years, as commissioners of the township of Moyamensing. It appearing, at the close of the polls, that they had the highest number of votes, and the judges having given them notice of their election, on the 2d of April, 1829, they took the oath of office. The judges, in pursuance of the second section of the act of incorporation, returned the respondents as duly elected. Before the meeting of the commissioners, which is directed to be on
This is an application in the case of a public corporation, for a rule to show cause, by what authority the respondents claim to exercise the duties of commissioners of the township of Moyamensing.
The question arises on the third and fifth sections of the act of assembly of the 24th of March, 1812, entitled, “An act to incorporate the township of Moyamensing, in the county of Philadelphia. ”
From the facts which have been disclosed, it is apparent, that the
It will be conceded, that where it can be avoided, no man should be permitted to decide his own cause; nor can I perceive much difference, where he is called on to determine his right to an office of profit, or one of trust, accompanied as this is, with extensive patronage. The temptation to an abuse of the trust is as great in the one case as the other; and is such, that no prudent legislature would entrust such a power to any person, unless in cases of necessity; and where such necessity exists, the legislative grant would, we should be led to suppose, be in such clear, unequivocal terms, as to leave room for neither doubt nor cavil. In England, if is said, that even an act of parliament, made against natural equity, as to make a judge in his own cause, is void in itself; for as it is expressed, jura natural, sunt immuiabilita; and they are leges legum. Davy v. Savage, Hob. 87. And in 12 Mod., if an act of parliament should ordain, that the same person should be party and judge, or which is the same thing, judge in his own cause, it would be a void act of parliament, for it is impossible, says the court, that one should be judge and party; for the judge is to determine between party and party, or between the government and a party; and our own courts appear equally averse to the introduction of such a principle.
An act of the legislature, says Justice Chase in Calder and Wife v. Bull. 3 Dall. 386, contrary to the great first principle of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. A law that punished a citizen for an innocent action, op in other words, for an act, which when done, was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B.,'it is against all reason and justice, for a people to entrust a legislature with such powers; and therefore, it cannot be presumed, they have done it. The genius, the nature, and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason failed there. To maintain, that our federal or state legislatures possessed such powers, if they had not been expressly restrained, would be a political heresy, altogether inadmissible in a republican government. To these high and imposing authorities,
In this view, the right claimed by the respondents, struck the judicial mind in England and in this country, and particularly the powerful intellect of Justice .Chase. Although I fully accedet o the general principle of that distinguished jurist, yet, I should pause before I would carry it to the extent he seems willing to go. If the legislature should pass a law in plain, unequivocal, and explicit terms, within the general scope of their constitutional power, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions bétween the legislative and judicial departments, dangerous to. the well being of,society, or at least, not in harmony with the structure of our ideas of natural government. Justice is regulated by no certain or fixed standard, so that the ablest and purest minds might sometimes differ with respect to it. Besides, necessity dispenses with those general principles, and the legislature must be the judges when the necessity exists — when the exigencies of society require the investment of such extraordinary powers. It must undoubtedly rest in their wisdom, to determine when the public welfare, to which all else must be subservient, requires the.assumption of such principles. Whilst I, then, in some measure,- disclaim the doctrines of that eminent man, yet, the laws have a right to claim the benefit of another principle of construction. Unless the words of the act be plain .and explicit, the court is bound, in decency, to conclude, that the legislature had no intention to violate the principles of equity, or without necessity, to contravene the first principles of the social' compact: That, as it is against reason and justice, and the fruitful source of faction, corruption and abuse, that a party interested, should judge his own case; it is not to be presumed, but directly the contrary, that the legislature have invested the respondents with such extraordinary powers.
I have looked in vain into the third section, which has been mainly relied on by the respondents, for any express words, or necessary implication, authorising the commissioners elect, each in his own case, to examine and judge of the election. The legislature had in view the original organization of the corporation, and its continuance, by the election of three members each year, to supply vacancies occasioned by the rotatory principle provided by the act. Hence, an ambiguity has arisen in the phraseology of the act, from not accurately distinguishing the manner of proceeding at this period, which are so essentially different. From necessity, at their organization, they may be permitted to verify their own powers,
After the corporation has been called into being, no necessity can ever-be pretended; as- then there are persons acting under the sanction of an oath, competent to decide upon the conflicting claims in a contested election.
The third section provides, that t'he nine persons who shall at the next election, to be held in pursuance of this ac^, have the highest number of votes for the office of commissioners, shall meet together, &c. on the first' Monday in April next following-the election; and that the three persons who shall, at every subsequent election, have the highest number of votes for the said office of commissioners, together with the six commissioners, whose time shall not have expired, shall meet together, at such place as shall be legally appointed, &c. on the first Monday of April next following each- and every election, to be held in pursuance of this act; and shall then and there receive the said returns of commissioners elect, and shall forthwith proceed to examine the same, and to judge and determine thereon; and for that purpose, the said commissioners so-met, or a majority of them, shall be judges of the said election, and shall have full power -and authority to approve thereof, or to set aside the same, and to'order new elections, as the law may require, to be held in the manner herein before directed, and at such times as shall be by them appointed, &c.
The fixing a particular day for the meeting of the commissioners and the commissioners elect, is necessary, because, in case there should be no dispute, the members of the Board would be in attendance, and in readiness to enter upon the discharge of the duties of their office; and in this point of view, it was a prudent precaution. As the scrutiny into the qualification of voters is usually made at the polls, the examination of the returns, and the .approval of the election is, in a great majority of eases, a matter of form. But where there is reason to believe, that the returned members have not been duly elected, it becomes a different affair. There another, and a more careful scrutiny takes place, before a tribunal on whom devolves a most important duty, to examine, judge, approve or set aside the election. The act says, “ and for that purpose, the said commissioners, so met, or a majority of them, shall be judges of the said election;” that is to say, for the purpose of examining, and judging, the commissioners shall be the proper tribunal. What then do the legislature mean, by the terms, the “commissioners so met?” In my judgment, they intended to designate commissioners in the strict and legal, sense of the word. Who, then, is a commis
If the question, then, depended entirely on the third section, I should say, the commissioners elect, had no right to vote, when their own election was in dispute. But this is rendered still more plain by the fifth section, which provides, “ that each and every commissioner who shall be elected and returned, and whose election shall be approved in manner aforesaid, shall, before he enters on the execution of his said office, be sworn or affirmed before some justice of the peace of the county, well and faithfully to execute the office of commissioner of the said township; and shall, thereupon, without any further or other commission, enter upon the duties thereof, and shall hold and exercise the same for the term for which he shall have been elected as aforesaid.”
The oath of office was administered to the respondents before the election was approved, and even before the return of the election, although after they had received notice from the judges. I do not perceive why the justice might not as well have sworn them in when they were put in nomination, on the ground of the certainty of their election, and the presumption, that the election would be approved. It would no more have been a violation of the letter, and, I believe, the spirit of the act, in the one case, than in the other. The section provides, that the commissioners shall be elected and returned, and approved, and then sworn. And this is the natural order of proceeding. First we have the election,
But what are the duties of the office? The first duty a commissioner has to perform on the meeting of the Board in every year, is to examine, to judge, and determine on the election of such members as may be returned by the judges, to supply the vacancies in the Board.
If then, I am right, in supposing, that the oath ought not to be administered to the commissioners elect, until their election be confirmed, it is a strong argument to show, that the legislature did not intend that they should take any part in the inquiry, when it ceases to be matter of form, and becomes matter of substance, by the presentation of a respectful memorial, complaining of an undue elec-' tion. Surely, it was not contemplated, that some should act with oath, and others without oath; and that those who had not been sworn, should be the persons, who were interested in the decision. When the respondents claim the privilege of voting, it is reasonable to object, that they cannot vote without having taken the oath, and that the oath cannot be lawfully administered until the approval of the election, by the tribunal legally constituted for that purpose.
The constitution of the United States prescribes, “ That each house shall judge of the elections, returns, and qualifications of its own members.” The constitution of Pennsylvania, in nearly the same words, “That each house shall judge of the qualifications of its members.” The right of determination is given to the house, who exercise their authority by the decision of-the majority, as in the act it is vested in the commissioners, or a majority. Under these different provisions, no instance can be produced, either in congress or our state legislature, where such a right has ever b'een permitted, or even claimed. The nearest they have ever gone to it in congress was, where returned members voted on a principle, on which their own election depended; a case entirely different from this, and the propriety of which, might be well questioned; at any rate, I feel but little respect for a decision which comes in such a questionable shape.
However this may be, we know this cannot occur in our state legislature, for by the act of the 29th of September, 1797, upon a petition, signed by twenty qualified electors, complaining of an undue election, being presented to the senate or house of representatives, they select a committee, appointed by lot, in the manner pointed out by the act, to determine the contested election, whose'report, when entered on the journals, is final and conclusive; and so far
In the warmly contested election for Westminster, in 1784, Mr. Kenyon, afterwards Lord Kenyon, denied the right of Mr. Fox, who at the time was a member for a small borough in the Orkneys, of being present during the discussion, and asserted, that even hearing him was an indulgence. Against the principle of the assertion Mr. Fox directly protested, maintaining, that he had not only the right to speak, but a positive and clear right to vote. This claim he grounded on the fact, that he was a member of parliament, and he was advocating the right of the electors of Westminster, rather than his own pretensions.
To admit, whether this, as has been insinuated, is any authority in favour of the respondents, particularly, taken in connexion with the fact, that he neither voted, nor offered to vote.
The respondents have relied on several acts of assembly, wherein they state, similar powers have been conferred by the legislature. If the acts of assembly are the same as in the incorporations of the district of Southwark and the Northern Liberties, it proves nothing more than that our decision may affect more than the township of Moyamensing; and is, of course, as we are well aware, an important question. They, however, shed no light on the construction of the act, unless the counsel had, in addition, shown an adjudication in accordance with the rule for which they contend. If different, I cannot perceive they are entitled to the slightest weight. It will, however, be seen, by reference to those acts, that the legislature have not, even in-terms, departed from the principles which I have advocated. That the provisions of the act may not be ineffectual, they have made them judges of their own election. The legislature by no means say, that a member of council shall, or may vote, when his own election is contested, but, that the common councilmen, or a. majority of them, shall exercise that right; a principle, similar to that which has been introduced into the constitution of the United States, and this state. If the right, of one, or two, or more, was disputed, it would be very clear to me, that the interested party could not interfere in the decision. And even, if the election of the whole of them was in contest, they might, and I think, ought, as in the ease to which I have alluded, vote on the principle, without each one voting directly in his own case; and even this could be only justified on the plea of necessity, to prevent a failure of the act of incorporation. For a man to constitute himself a judge in his own cause, is indelicate and indecent. It is not necessary, to prevent a failure of the corporation, nor is it within the spirit or words of the act, which gives the decision to the coun
But it is said, the power may be abused, and of this,-if we could have had any doubt before, we have been abundantly satisfied by the facts which have been disclosed in this investigation. If, however, they have acted corruptly, they are amenable to the laws, and to the opinion of their fellow citizens, which, in most cases, may prove a sufficient restraint. It is also, equally within the limits of probability, that the judges of the election may be within the sphere of the same corrupt and factious influence, by which they may be induced to make an improper return; and if the returned members may be permitted to confirm their own election, it would lead to equal, if not greater mischief.
If, then, this matter rested here, I should have no difficulty in saying, that the rule should be made absolute. But, as has been already stated, at a special meeting of four of the commissioners, they undertook to set aside the election, and order a new election, which resulted in the choice of three other gentlemen, to supply the vacancy in the Board.' At the first election, if appeared, that John Paisley, had two hundred and seventeen, votes, James M‘Closkey, one hundred and fifty-five votes, and David Farrel, one hundred and fifty votes, whereas the highest of the other candidates had but one hundred and forty-seven votes. Two questions, then arise: 1st, Have the commissioners power to decide, without examination or control, by the Supreme Court? and, 2d, If we have power to interfere, is this such a ease, in which it is the duty of the court to interpose, in consequence of an improper exercise of authority by the commissioners?
The act says, that the commissioners, or a majority of them, shall be judges of the election, and shall have full power and authority to approve thereof, or to set aside the same, and to order new elections, as the law may require. From this, it has been inferred, that the court are ousted of their jurisdiction. By the act of the 22d of May, 1722, the Supreme Court have full power and authority to issue forth writs of Habeas Corpus, Certiorari, and writs of error, and all remedial and other writs and process; and, generally, they arc empowered to minister justice to all persons, and to exercise the jurisdictions and powers, &c. as fully and amply, to all intents and purposes whatsoever, as the justices of the Courts of ICin'g’s Bench, Common Pleas, and Exchequer, at Westminster, or any of them may or can do. This is a great, full, and plenary power to the court, wisely entrusted to them for the public welfare, and which we are bound to "exercise, on the complaint of persons aggrieved. Under this law, the Supreme’Court have been in the
When the legislature gives full power and authority to approve or set aside an election, I cannot believe that they intended that the supervising jurisdiction of the Supreme Court should be taken away. These words cannot have greater effect than the words, “final and conclusive between the parties,” used in a great variety of acts of assembly; and, yet, it is a well settled principle, that these expressions do not take away the jurisdiction of the court. The legislature being aware, that this is a well-settled rule of construction, would, if they had intended to preclude inquiry, have prevented this court from exerting their superintending authority by express prohibition. This case furnishes a reason against the placing or putting public or private corporations above the reach of inquiry.
And this leads to the second question, whether there was a rightful exercise of authority in setting aside the election of the respondents. As respects Mr. Paisley and Mr. M‘Closkey, there cannot be the slightest particle of doubt. Mr. Paisley had a majority of seventy, and Mr. M‘Closkey, a majority of eight votes. IIow the commissioners could have supposed they were justified in setting asidelheir election, on the proof of two, or at the most, three illegal votes, passes my comprehension. I see no reason for supposing, that the judges of the- election were corrupt, although they may have been mistaken. Edward Smith, one.of the commissioners, says, that they inquired into the circumstances of the election, held on the third Friday of March. Witnesses were examined by the commissioners, on the subject of the election. It was proven, that persons had voted at that election, who were not entitled to a vote, persons who did not reside in the township, and persons who were not authorised.to vote in the township. By the latter description, he says, he means aliens. In his cross-examina'tion, he says, they made no inquiry as to whom they voted for. Robert Parker, an alien, voted. He was qualified in the presence of the commissioners, that he had voted, and that he was an alien. John Woods and Daniel Daniels voted. These were all it was proven against, that he recollects. Although it is clear, that the two first were duly elected, yet, there is some difficulty as respects David Farr el; and if they had merely set aside his election, .we should not have been disposed to interfere. It would appear, that three illegal votes were taken at the election, which being deducted from the highest, which, I believe, is the legislative rule, there was an equality of votes. If this be the case, as regards him, there was no election. It is to be regretted, that we cannot set aside the election, as re
— This species of information was freely used by the crown in disfranchising most'of the corporate towns of England, previous to the statute 9 Ann. 8, 20, which gave no new remedy, but enlarged an existing one, by authorising it, at the instance of an individual, and allowing costs to the relator or the respondent, according to the event. The circumstance of that statute not being in force here, furnishes no argument against the information as an existing remedy. It is, however, so far modified by usage, in analogy to the statute, as to be grantable at the relation of an individual; but in every other respect, it has been considered to be in force here, as at the common law. It is declared in the constitution, (article nine, section tenth,) “That no person shall, for any indictable offence, be proceeded against criminally by information,” except in certain specified cases. But every information is in form, á criminal proceeding; and the framers of the constitution were guilty of a pleonasm, unless they meant to. assert, that there are cases in which it may be used substantially as a civil remedy. Now, i.t so happens, that the best of the elementary authors has asserted the same thing. As a m.ethod of criminal prosecution, the information in the nature of a Quo Warranto, has long fallenjnto disüse, the fine being merely nominal, and the effect of the judgment to oust an intruder; and thus restricted, it is now used to try-title to a franchise. 3 Comm. 263. In fact,-it contains all that is valuable in the ancient writ of Quo Warranto; to which, with its uncouth forms and interminable pleadings, the necessity which there often is, of giving redress in some shape, would compel us to return. Can it be doubted, then, that the convention, containing as it did, many of the ablest lawyers in the state, had particularly in view the preservation of this proceeding as a civil remedy? Even were that doubtful, yet the point has been settled by cotemperaneous construction and long practice. The Commonwealth v. Wray, 3 Dall. 490, in which it was expressly ruled, was within nine-years from the adoption of the constitution; since when, it has been followed as a precedent, by different judges, through six successive cases, in which the principle W'as reasserted without the expression of a doubt, either on the bench or at the bar; which ought, one would think, to put the matter at rest. After thirty years’ practice, to question a train of authorities such as these, tends to shake all confidence in the stability of judicial decision, and leaves the law, itself, in a state of distressing uncertainty.
In regard to the remaining points, I regret that'I am compelled to dissent from the opinion of the majority. The objection, to what appears to me to be the obvious and natural construction of the
Now, as the Board must necessarily pronounce separately on the election of each, according to its peculiar merits, I can discern no reason on the score of community of interest,'to exclude the other two. Then, suppose the Board to be constituted of eight, who are equally divided on the election of the ninth; and the consequence is, that the return would be established for want of being successfully impeached; because, if that were not so, the new commissioners would neither be admitted nor rejected, nor could a new election be ordered. The vote of the ninth, therefore, could produce no effect, but when given in a way to turn the scale against himself; and, it seems to me, the public ought not to be deprived of the benefit of that contingency, however remote it may appear to be. If the eight were divided unequally, the vote of the ninth could produce no effect whatever. Now, strike out all the commissioners elect, and we shall obtain exactly the same results with the Board fconstituted of six. The only effect, then, which the votes of the new commissioners can produce, is to prevent a majority of the old Board from controlling .the public will — the very point which, it seems to me, the legislature intended to secure.
On the last point, I have the misfortune to differ from all my brethren. By the act of 1722, the pow'ers and jurisdiction of this court, are declared to be. the same as those of the King’s Bench, which grants writs of Mandamus, to restore officers of corporations, and freemen wrongfully disfranchised, as well as informations in the nature of Quo Warranto, against usurpers of the franchises of the crown; and, in the exercise of its visitatorial powers, corrects abuses by judging of the circumstances and merits of the complaint. But even conceding to this court a concurrent jurisdic
__Our ancestors brought with them a portion of the common law, and of the common law proceedings, and where we have used the one or the other, it is not for this court to lay them aside without good reason.
Where, however, on trial, either has been found impracticable, or useless, I would not adhere to even all those in use; much less would I go back to search for those abandoned in the country where they originated. Where they have been used, but the form of our government, our legislative provisions, and especially the express words of our constitution forbid a continuance of them, I would suppose we have no power to use them.
Even in England,informations have always been odious, and there they have been forbidden or modified by both legislature and judiciary. Here I have always believed they were expressly prohibited; no person, for any indictable offence, shall be proceeded against criminally by information, except in cases arising in the land or naval
I have said, this power of granting leave to file informations in the nature of Quo Warranto, has been modified in England. The act of 4 and 5 William <§• 'Mary, c. 18, compels the persons at whose instance the motion is granted, to enter into recognizance in twenty pounds, to pay the costs in case of non-pros or acquittal of the defendant. The act of 9 Ann. c. 20, regulates the whole proceedings, and gives all the .costs, though they may exceed twenty pounds, and applies all the statutes of jeofails to these proceedings; these acts are neither of them in force here, and if we grant the information, it is at common law, and the defendants must pay the costs, although they are acquitted. All our acts of assembly relative to costs in criminal proceedings, relate to; and speak of grand and petit juries, and indictments. The legislature were not aware, that informations lay against every officer of every county, township, and borough, and corporation in the state.
An old act of assembly, gave this court power to exercise the jurisdictions and powers thereby granted, as fully 'and amply to all intents and purposes whatsoever, as the Courts of King’s Bench, Common Pleas, and Exchequer, or any of them may or can do.
But there are other reasons: there is no Nisi Prius Court issuing from this court, except in the county of Philadelphia; and no one cou.nty has any exclusive rights, or any remedies, except what are given by positive law. All the corporations, all the boroughs, all the counties, then, have not this common law remedy, and every tontine establishment, falsely called charitable, must take up our time in trying whether the voters were disqualified by gaming, or intoxication, or having the venereal disease, which are standing disqualifications in all of them! It has been said, we may send the issues to -be tried in the Circuit Court, but I apprehend, this has been said without reflection: that is, a court of very special jurisdiction; all it has is given by act of assembly, and nothing can be found, giving us power to originate causes to be sent to that court. Besides, our original jurisdiction is expressly confined to civil suits, by the fourth section of the act of assembly of the 25th of September, 1788, and by the act of assembly of the 20th of March, 1810, confined to suits where the matter in controversy shall be of the value of five hundred dollars; and by the first section of the act of assembly of the 24th of February, 1806, no issue, in fact, shall be tried in bank in the Supreme Court, but ohly at Nisi Prius, and the Circuit Court was in full operation at that time.
This township of Moyamensmg is, to be sure, a corporation, but one of a peculiar kind; it is, quasi, a county for particular purposes. Informations of this kind have not, I believe, been granted against county or parish officers in England, and I am not satisfied that
If we adopt English forms, let us take English rules of proceeding. There, the court will require the same evidence to support the motion, which would support an indictment; (3 Wilson’s Bac. 641,) and if the court are satisfied there is no reasonable cause
Now, will this court grant an information against any officer, no matter what his majority, if one or three illegal votes are proved, and must not an application for such prosecution be necessarily vexatious, where, if all that is alleged is true, there is still a majority of sixty-seven?’ or, can the commissioners, who, without proof, and against proof, set aside the election of the two highest, have any merits on their side, or have they given evidence, of any wish or intention to regard law or justice. It is, however, said, that we have nothing to do with the election; that after the election is over a return is to be made to the commissioners in office, and to the three newly elected; arid that the old commissioners alone have the power of approving or disapproving, and that the act of the majority of the old commissioners is binding on this court, and -all the world, no matter how flagrantly absurd or wicked it may be.
The township was incorporated by the act of assembly of the 24-th of March, 1812.- 5 Smith’s Laws, 341. The third section is as follows: — “The nine persons who shall, at the next election to be held in pursuance of this act, have the highest number of votes for lhe office of commissioners, shall meet together at the house where the regulators for the northern district of the said township now meet, between the hours of two and four o’clock in the afternoon of the first Monday in Jdpril next following the said election, and that the three persons who shall at every subsequent election, have the highest number of votes for the office of commissioners, together with the six commissioners whose time shall not have expired, shall meet together in such place as shall be legally appointed, between the hours of two and four in the afternoon on the first Monday in April next following each and every election to be held in pursuance of this act, and shall then and there receive the returns of commissioners elect, and shall forthwith proceed to examine the same, and to judge and determine thereon: and for that purpose, the said commissioners so met, or a majority of them, shall be judges of the said election, and shall have full power and authority to approve thereof, or to set aside the same, and to order a new election, as the law may require, to be held,” &c. “Us the law may require:” do not these words control the authority to approve or set aside, and if we have any power in the matter, authorise us to examine and decide whether the laiu required the commissioners to do what has been done in this case?
For that purpose — ralthough they all, or some of them, may never be commissioners for any-other purpose, yet, for the purpose of judging and determining, the law gives them this special power. The said commissioners so met. The preceding clause' had told most explicitly who were to meet, and who were to judge and determine, and this one says, the said commissioners so met, are to approve or set aside.
The counsel for the relators says, the word, commissioners, in the last clause, distinguishes those who were previously in office, from the three commissioners elect.. In the first place, this was not the meaning after the first election, when all were commissioners elect; and it-would, not be the meaning, if any event should require the election of nine, and the law makes no discrimination between those cases and the election of ordinary years. And in the next; the whole nine, in all-cases, are to receive the returns, and judge and determine thereon; and it would not be very easy .to find why nine should judge and determine on a matter, and yet, six, or a majority of six, should reverse that judgment and determination; why nine are to judge and determine, and yet, in the same sentence, four of the same men are to have full power to reverse that judgment and determination.
We are told, however, that it is unconstitutional, nay,-much worse than that; to appoint any person a judge in his own cause, that even a parliament, whose power of legislation has no limits, cannot do-this. Then, the charters of Philadelphia, Pittsburg, and Lancaster, are all void, for the branches of those corporations have that power expressly, and exercise it every year. Oh! but this is from necessity. What necessity? Might not the aldermen
When a right to an elective office is questioned, two rights are questioned, that of the person elected, and those of the electors. If the inhabitants of a district elect a man, to whom they confide the power of taxing and applying the taxes, is it strange, they should confide to the same person the power of judging for the same period of their right to vote? There is, and must be, in all free governments, much'depending on the confidence of those who elect: and they elect with a view to all the authority which the law gives to the officer, because, they are willing to confide it all to his honesty and capacity. When it is found all cannot be safely trusted, a law divides, gives part to some other hands. The constitution, itself, gives to each branch of the legislature the right to judge of the elections of its own members. If one illegal vote in a county makes an election void, everyone in the house is judging in his own case; and if the matter is so bad, or so wicked, as is pretended, we must amend the constitution, and provide, that each branch shall not judge of the election of its own members, but may of the members of the other branch. There is no weight in this'objection against a .positive law; and if the law were as contended for, it would in no respect mend the matter. Not practically, for if the three newly elected were solé judges of their own election, no more objectionable decision could be given, than has-been in this case. Nor is it more free from objection on another ground, for if the six can set aside one election without reason, and against reason, they may do so as often as an election is had, and keep the power in their own hands, which is as much judging in their own case, as that objected to.