76 Pa. 15 | Pa. | 1873
delivered the opinion of the court, May 17th 1873
To the suggestion filed by the two private relators, that the defendant being a notary public, holding office under the state, was not eligible to the Common Council, the defendant, on the 18th of February 1873, pleaded an Act of Assembly of the 29th of January 1873, entitled “An Act relating to the office of notary public in the city of Philadelphia,” in which it was declared, that the true intent and meaning of the Act of Assembly, entitled “ An Act to incorporate the city of Philadelphia,” approved the 2d day of February 1854, is not to prevent any member of the Select and Common Councils of the city of Philadelphia from holding at the same time the office of notary public, and which further enacts, that the holding of the office of notai’y public shall not be incompatible with holding at the same time the office of member of either branch of the councils of the city of Philadelphia; and no member of the present councils of said city shall be held to be disqualified on account of the holding or having held at the same time the office of notary public, nor shall he be removed from the office of member of councils by reason of any such disqualification.
To this plea the relators demurred, assigning among other causes of demurrer, that the said act was unconstitutional, and on the 5th of April 1873, the court sustained the demurrer and entered judgment of ouster against the defendant.
In this, we think the learned judge was clearly in error, for the Act of 29th January 1873 was a perfectly constitutional law, and if the attorney-general had been the relator, he would have discontinued the suit as soon as the act was brought to his notice, as would have been his duty.
This act deals simply with a part of the charter of a municipal corporation, over which the legislature had entire control, and did not interfere with any vested right of any individual, and certainly not of the two relators. It was a matter concerning the public, and was strictly within the province of the legislature, and was not an interference with the proper functions of the court, and did not “override the judiciary.”
Judgment of ouster reversed, and judgment for the defendant.