State v. Wilmington City Council

3 Del. 294 | Del. Super. Ct. | 1840

RULE on the city council of the city of Wilmington, to show cause why a mandamus should not issue, commanding them to admit John Hagany to the office of city treasurer.

The following facts were agreed upon.

At an election held in the city of Wilmington, on the 13th October last, nine hundred and eighty-six votes were cast for city treasurer; of which John Hagany received four hundred and ninety; Henry Hicks four hundred and eighty-nine; George Reynolds five; Allen Thompson one; and John M'Clung one vote. John Hag-any was and is an ordained preacher of the gospel, in the exercise of his clerical functions. The city council at a meeting regularly held on the 14th and 15th of October, for the purpose of judging of the election returns and qualifications of members of council and officers eligible at that election, decided that John Hagany was not qualified to act as city treasurer, and that there had been a failure to elect a city treasurer at that election; prout said resolutions passed.

Wales, in support of the rule. — The principal question is, whether an ordained preacher of the gospel is ineligible to the office of treasurer of the city of Wilmington. For the relator we contend that the office of treasurer of the city of Wilmington is not an office in this State, such as is embraced within the meaning of the constitution. "Art 7 sec. 8. The rights, privileges, immunities and estates of religious societies and corporate bodies, shall remain as if the constitution of this State had not been altered. Noordained clergyman or ordained preacher of the gospel of any denomination, shall be capable of holding any civil office in this State, or of being a member of either branch of the Legislature, while he continues in the exercise of the pastoral or clerical functions."

What is a "civil office?" Such an office as is created by the constitution; such offices as appertain to the State at large; and are filled by appointment of the Executive, if not otherwise provided for by the constitution itself: not the office of a corporation. (Crabbe's Synonyms. — State — Realm — Commonwealth;Johnson's Diet. — State — Civil; Webster's Diet. — State.) Has the city treasurer any duty to perform to the State; any responsibility to the body politic, any power arising from the State? He is merely a ministerial officer of the corporation, like the cashier of a bank; the treasurer of a railroad, company; of a ditch or marsh company. (4 Dallas 329, Com. vs. Dallas; 3Ycates' Rep. 300, S. C.)

The office of treasurer of the borough of Wilmington was an office existing long before the formation of the constitution, as a corporate office, and is not subject to this restriction. By the constitution' of the United States the general government has exclusive jurisdiction over the District of Columbia, which embraces several cities; yet the officers of these city corporations have never been deemed United States' officers. The policy of the constitution in excluding ministers of the gospel from State offices, does not apply to mere corporation offices. The object was to exclude the influence of the church from State affairs. (2 Harr. Rep. 92-3, Gray vs. State.)

J. A. Bayard, contra. — In the construction of all organic laws the court look more to the principle which the framers intended to announce, than in the construction of mere legislative enactments., This may be illustrated by the case from Dallas. The object in that case was to prevent the officers of the U. S. from interference in State offices: it applied only to such offices as were strictly State offices, for there was no danger of such influence in any other. The disqualification of a minister of the gospel under our constitution was designed to exclude the influence arising from the mere exercise of clerical functions from operation upon the affairs of State. This influence is dangerous in reference to every office within the gift of the people, especially elective offices such as this.

There may have been another reason; it may have been designed to confine persons who had taken upon themselves the clerical functions to the exercise of such duties, and not allow them to be distracted from exclusive attention to such important affairs, by mingling with the political strifes of civil office. These principles apply to public corporations, and the danger extends to them as fully as to other public officers, whether holding their appointment from the governor or the people of the State at large. If this case is within the principle of the constitution; within the evil designed to be avoided, then the constitution applies to it unless the words used expressly exclude it. Any office is a civil office which is derived from the citizens, as such, whether more or less. (1 Shower'sRep. 240, Rex vs. Mayor of London.)

In reference to this disqualification the expression is officein this State; in most of the other disqualifying clauses the expression is under the State. It might well be that the convention meant to establish a distinction. "Art. 2. Sec. 12. No member of Congress, c. nor any person holding any officeunder this State or the United States, except the Attorney-general, attorneys at law, and officers in the militia holding no disqualifying office, shall during his continuance in office, be a senator or representative." This exception proves that attornies at law were regarded as officers under the State. The case of Gray vs. The State is not conclusive as to this matter. The expression of the judge there is "these are not officers either of the State or county, but of the corporation." I agree to this; the treasurer is not an officer of the State nor of the county, but of the corporation; hut it does not follow that this is not an office in the State, and a civiloffice, such as it intended to be embraced by the clause of the constitution disqualifying ministers of the gospel.

1. It was said that this was an office existing before the constitution, and therefore not embraced within it. If by this it is meant merely to argue that this is not a civil office in the State, I have already attempted to answer it in that view; but if it is to be hereafter pressed that admitting this to be a civil office in the State, it is not subject to this disqualifying clause, because the officer was not so disqualified before, and this constitution saves all the rights, c., of corporations, my answer is, that theright is not invaded by such a disqualification in the officer; and that the same disqualification is in the constitution of 1776, without such saving to the rights of corporations. (29 Art.Const. 1776.) 2. But if corporate officers be not civil officers in the State, then the general laws applicable to State officers do not apply to them. Wherever a power to elect is vested in an indeterminate number of persons, and it is not provided in the law that a plurality shall constitute a choice, the principle is that it requires a majority of all the persons voting, to elect the officer. The Wilmington charter does not provide as to the number necessary to elect; and there is no by-law on the subject. No usage can make a mere plurality sufficient. (Cas. temp. Hardw. 316) In this case the relator did not receive a majority of the whole number of the votes polled. 3. This court has no jurisdiction, of the subject. By the Wilmington charter, section 5, the city council "shall be judges of the election returns and qualifications of their own members, and of all other officers of the corporation," c. (8 vol. 98.) This I regard as a political power to be exercised of necessity by the officers to whom the returns are made, and who are by law made the judges of the election; and it would be highly dangerous in principle for the courts to take cognizance of the matter. It is like a decision of the board of canvass, or the officers of an election, which the court would hardly undertake to review. Even supposing it not a political power it may well be doubted whether this court can exercise a revisory power, there being no appeal given by the charter, from the decision of the city council. (16 Eng. Com. LawRep. 41.)

Wales, in reply. — 1. "No ordained clergyman shall be capable of holding any civil office in this State, or of being a member of the legislature." Why specify a membership in the legislature, after general exclusion from civil office, if the public offices of the State were not meant? It was even arprehended that from the specific nature of the term used "civil office" a membership in the general assembly might be excluded. It could never have been intended to descend to corporation officers, especially of the lowest grade, such as a treasurer, who is merely a ministerial officer. 2. Is a majority of votes necessary to a choice? The direction of the charter is, that the election shall be by ballot; having reference to immemorial usage in this eorparation; as also the usages of the State in all elections, as well as by reference to the express law previously passed, declaring that in all elections, without reference to State elections or civil offices, a plurality of votes shall be sufficient to elect, unless otherwise expressly provided. (Dig. 189; 1 Cowp. Rep. 249.) Usage will determine in doubtful questions to guide the construction of the charter; though it will not change the charter. 3. Has this court jurisdiction to grant the mandamus? or are the city council the exclusive judges of the qualifications of the treasurer? This question is not properly brought up by the case agreed on; but it is plain on authority in favor of this court's jurisdiction. (2 Harrison's Index 1484; 4M. R. 591; 4 Burr. 2008; 3 ib. 1269.)

By the Court. In this case the following points have been made, which we shall notice in the order in which they are stated. First, it is contended, that by the charter of the corporation, the city council are constituted the sole judges of the election returns and qualifications of all the officers of the corporation, and that this court has no jurisdiction over the subject. Secondly, that by the eighth section of the seventh article of the constitution, of the State, it is expressly declared that no ordained clergyman or preacher of the gospel of any denomination shall be capable of holding any civil office inthis State, while he continues in the exercise of the pastoral or clerical functions; and that Mr. Hagany being an ordained preacher of the gospel, in the exercise of his clerical functions, is incapable of holding the office of city treasurer. Thirdly,, that in the absence of any by-law regulating the election, (and none has been shown,) the common law rule prevails, which requires a majority of the votes cast to make an election, and that Mr. Hagany not having received such majority, is not duly elected.

As to the first point, the jurisdiction of this court, it is a perfectly well settled principle both in this country and in England, that civil corporations, whether public or private, are subject to the general law of the land, and amenable to the judicial tribunals for the proper exercise of their powers. (4 Wheat. Rep. 6G1,Dartmouth College vs. Woodward; 2 Kent's Com. 30-1; 2Kyd on Corp. 174; 3 Blac Com. 42; 17 Com. Law Rep. 325,Rex vs. Mayor of London.) In England the Court of King's Bench superintends all civil corporations, and in this State, the Superior Court is invested with all the powers of the Court of King's Bench; in all manner of pleas, actions, suits and causes, and in the general administration of justice to all persons. There cannot, therefore, be a doubt as to the authority of this court to superintend this corporation, as well as other civil corporations in the State; to correct abuses, and to compel them to the due and proper exercise of their powers.

The question presented in the second point is, whether the office of treasurer in this corporation comes within the true meaning and import of the terms "civil office in the State," as used in the constitution." The word State has two meanings, and is used in both of them, in different parts of that instrument. In one sense it signifies the territory inhabited by the people; in the other it means the body politic inhabiting the territory, so that the words "civil office in the State" may mean either civil office within the territory, or civil office in the frame of government, or political organization which it was the business of the convention to establish. As the purpose of a constitution is to establish the principles of government for the community as a body politic, without any particular reference to the territory which they inhabit, the primary and leading sense in which the term State is used, is that of the body politic. The general subject matter of the instrument, are the political principles of the social organization. The provision referred to, has evident relation to, and is in accordance with the first section of the first article of the constitution, which asserts and secures the most perfect religious liberty, and was meant to establish the great political principle of the separation of church and State. The object of the labors of the convention, was the construction of a frame of government for the community, and the announcement of the principles on which it was constructed. The immediate purpose of the provision is accomplished by confining the import of the terms used to the political system then framed. The other construction would be inconveniently broad, and apart from the manifest purpose of the provision; for it would exclude clergymen from being officers, even of private corporations, such as banks, manufacturing companies, insurance companies, c. I am, therefore, clearly of opinion that the terms used in the constitution have reference to State officers, and not to corporation officers, and that Mr. Hagany was eligible to the office of city treasurer.

But the question arises whether he has been duly elected; which is the third and last point made in the case. The whole number of votes cast was nine hundred and eighty-six, of which he received four hundred and ninety, which is less than a majority. Could he be elected by a number less than a majority? In the absence of any provision in the charter, and of any by-law regulating the election, the matter is subject to the rules of the common law. The common law rule is perfectly well settled, that the majority alone can bind the community. (1 Kyd onCorp. 308; Aug. Ames on Corp 280; 2 Kent's Com. 293; 7 Serg Rawle 517.) It has been stated in argument, that the practice has been heretofore in corporate elections in the city of Wilmington, to consider the person having the highest number of votes, although not a majority of the whole, as duly elected, and it is said that there must have been a by-law to that effect, although it cannot now" be found. However this may be, it is a subject of which the court can have no official knowledge. Nor can they presume a by-law, although upon an issue of fact depending before them, they might instruct the jury to find one, upon evidence of long and ancient usage. (Lee's cases, tempore Hardwick 317; 2 Ves., sen. 330.) The matter now comes up upon a rule to show cause why a mandamus should not issue; and the parties have agreed upon a statement of the case for the opinion of court. In that statement no mention is made of any such by-law, or of any such usage, nor has any such by-law been produced, and the case must, therefore, be decided upon the the rule of the common law. It has been contended that the twenty-fifth section of the act of assembly entitled "An act regulating the general election," which provides "that in all elections in this State, except where it is or shall be otherwise expressly provided, plurality or the highest number of votes, do and shall make a choice," has modified the common law in that particular in all popular elections. But it is perfectly clear that the act in question has reference to State elections; and that the provision in question must be understood as applicable to them alone. The subject matter of the law was not a revision and change of the principles of the common law generally, but the establishment of a system for conducting the public elections of the State, and the principles by which they should be regulated. It follows, therefore, that as this was a corporation election, in which by the rules of the common law, it requires a majority to make a choice, and Mr. Hagany did not receive such majority, he was not duly elected, and the rule must be discharged.

HARRINGTON, Justice: — The borough of Wilmington was incorporated by letters patent in November, 1739. It received a charter from the general assembly in 1772, by the 25th section of which the freeholders and electors within the borough, were authorized at every annual election, to choose a treasurer for the borough. The only qualification for this officer required by that charter was, that he should be "a substantial inhabitant of the borough." Before the adoption of any constitution in this State, the office of treasurer of the borough of Wilmington was established. It existed as a part of the corporation; as an office necessary for the government of the town, and belonging to it, not merely as an incident of its charter, but by express grant. It was subject to no such qualification as is now contended for; and, if such restriction is to be imposed upon it, it must be shown to have been done by positive constitutional enactment. There is another reason why this disqualification should be shown affirmatively. It not only takes away a former vested right of the corporation to elect any "substantial inhabitant" to the office of treasurer, but it is an individual disqualification; a restriction of the right which the relator in this case had, in common with every other inhabitant of the borough, to be eligible to that office.

The charter by which the corporation of Wilmington was originally established was recognized and confirmed by the 24th article of the constitution of 1776; by the 9th section of the 8th article of the constitution of 1792, and by the 8th section of the 7th article of the amended constitution of 1831. "The rights, privileges, immunities and estates of religious societies and corporate bodies shall remain as if the constitution of this State had not been altered." But the constitution of 1831, and also that of 1792, contain a provision that "no ordained clergymen or ordained preacher of the gospel of any denomination, shall be capable of holding any civil office in thisState, or of being a member of either branch of the Legislature, while he continues in the exercise of the pastoral or clerical functions."

I come then to the question whether this clause of the constitution has reference to civil offices under the State government merely, or whether it embraces officers of a corporation, such as the treasurer of the borough of Wilmington.

In construing organic laws special regard should doubtless be had to the principle intended to be announced, rather than to the words used; but we must not do violence to the words in search of intention; nor have we the right to extend a principle beyond its manifest application. This is particularly so in reference to a restrictive or disqualifying principle, and when it is to take away rights previously enjoyed, whether natural or acquired.

The principle which this clause of the constitution is supposed to announce is, that ordained clergymen shall not be employed in administering the government. It doubtless grew out of a wise determination to keep the affairs of the church separate from affairs of State, and by excluding from public office ministers of the gospel, to exclude also any improper influence from that source on public affairs. Is this principle fully recognized in excluding clergymen from all offices connected with the government properly speaking, or does it require to be extended to offices held under public corporations, and not held under or composing any part of the State government? The business of the convention was to establish a State government and to provide the mode of its administration. In speaking of offices such offices were undoubtedly meant as were designed for this purpose, either directly or indirectly. And the constitution is very particular in its details in reference to officers and the mode of their appointment, specifying election officers, officers relating to taxes, to the poor and to highways, constables and hundred officers. Even attornies at law seem to have been regarded as officers,-being a part of the judicial branch of the government, and concerned in carrying out the system. For all these have their parts to perform; and without the agency of any, the most unimportant of them, the system would be imperfect. But the constitution no where descends to notice a corporation officer. Such an office forms no part of the system of government; it is perfectly immaterial for all the purposes of State government, whether the city of Wilmington has a treasurer or no treasurer; and, as the existence of such an officer did not enter into the system of government which the convention was forming, it cannot be supposed that the qualifications or disqualifications which they sought to apply to their officers, were designed by them to be extended and applied to such corporate officer.

But if this office of city treasurer be an office within the meaning of the constitution, the whole affair is wrong, and the people of "Wilmington have no right to choose the person who shall fill that office. If this be a "civil office in this State;" such an office as is embraced within the constitution; it is an office "under this State," and the appointment to it is, by the same constitution, vested in the Governor. "Art. 3. Sec. 8. The Governor shall appoint all officers whose offices are established by this constitution, or shall be established by law, and whose appointments are not herein otherwise provided for." This is an office established by law, and the appointment to it is not provided for in the constitution otherwise than by the general appointing power of the Governor; if therefore it he a constitutional office, it must be filled by the Governor's appointment. I cannot bring my mind to appreciate the distinction between a civil office in the State, under the constitution, and a civil office under the State; a distinction which the gentleman opposing the mandamus in this case mentioned, as striking some minds with greater force than it did his own. The distinction is without a difference. It implies that there can be an office under the constitution which is not an office under the State, which reduces it to an absurdity. The term office in the State cannot refer to the territorial limits of the State but to its government; in which respect the State means the constitution or form of government; and an office in the State or within the government, must be an office under the State or government. If then this office be a "civil office in the State," under the constitution, it is not an elective office, and the appointment to it belongs to the Governor; if it be not a civil office under the constitution, but a mere office of a corporation, the appointment to it is regulated by the charter and laws of the corporation, and the constitutional disqualification of clergymen to hold office under the constitution does not apply to it.

Again; if this be an office under the constitution, the officer is liable to impeachment before the legislature of the State, for any misdemeanor in office. The application of this fact seems to me to be again conclusive on this question. "Art. 5, Sec 2. "The Governor and all other civil officers under this State, shall be liable to impeachment for treason, bribery or any high crime or misdemeanor in office." That is, if the treasurer of the city of Wilmington shall embezzle the fluids belonging to the people of that city, and not to be people of the State at large; or shall violate his duties as prescribed by the ordinances of the city council, and not by the laws of the State; he shall be responsible to the people of the State as for a violation of the laws of the State, and may be solemnly impeached before their legislature in like manner with the Governor or any other State officer. And the consequences of conviction equally show that this person is not an officer under the constitution. The first consequence is removal from office. Now what right have the people of the State of Delaware in their aggregate capacity to remove an officer of the corporation of Wilmington, for a supposed violation of their city ordinances? He is their servant; elected by them; governed by their orders as expressed in the city ordinances; trusted by them with their own, property; and responsible to them, and to them alone. Another consequence of such conviction would be a disqualification "to hold any office of honer, trust or profit under this State" (implying the previous expulsion from such an office.) "And the party convicted shall be subject to indictment, trial, judgment and punishment, according to law!" But the city treasurer is not indictable in our courts; for he can be guilty, as such, of no violation of the laws of the State; and though he might be indicted in the mayor's court, and be punished there, it would present the strange result of a corporation officer violating corporation laws, impeached, as a State officer for high State crimes, and then remitted to the corporation for punishment, the State being unable to punish an officer which it had the right to impeach. This anomalous working of the system shows that it cannot be true that the treasurer of Wilmington is any part of U. The city treasurer does not then hold a civil office in this State," under the constitution. The case cited from 4 Dallas, more fully reported in 3 Yeates, is in point and on the same principle. Mr. Dallas held an office under the United States and he also held the office of recorder of the city of Philadelphia, with a salary annexed by law. The offices were supposed to be incompatible, as the constitution of Pennsylvania declares that no person holding any office of trust or profit under the U. States, shall at the same time hold the office of judge, secretary, c., "or any office in this State" to which a salary is annexed, c. It was argued on the other hand, that Mr. Dallas was ajudge, the head of the mayor's court, and that he was not merely an officer of the corporation of Philadelphia; on the other that the constitution referred only toState officers, and that the recorder of the city of Philadelphia was not a State officer, but was only an officer of the corporation; and therefore no judge within the meaning of the constitution; and the Supreme Court of Pennsylvania wasunanimously of this opinion. The case is precisely to the point that, under a constitution where the words are in this respect the same with ours, an officer of the corporation of Philadelphia was not within the constitutional meaning of the term an officer in theState. I conclude, then, that the fact presented in the case stated that Mr. Hagany, the relator, is an ordained preacher of the gospel, in the exercise of his clerical functions, is no disqualification to his holding the office of treasurer of the city of Wilmington.

I consider the second point also in favor of the relator. The plurality principle has been universally applied to these and all other elections in Delaware. It has been invariably adopted as most in consonance with our institutions, in all cases where the law of the election is silent in this respect; and in most cases it will be found that the law is silent; the principle being so universal as not to claim particular provision. I do not find that the principle is directly asserted even in the constitution of 1776 or of 1792. But I also regard the announcement of the principle in the act of 1825, together with the subsequent passage of a law regulating these city elections (and under which this election took place,) as expressly applying the plurality principle to the city charter elections. In section 25 of the act of 1825, it is "enacted and declared, that in all elections in this State, except where it is or shall be otherwise expressly provided, plurality or the highest number of votes do and shall make a choice. It is true, that this principle is announced in the general election law, but it was manifestly designed to lay down a general principle applicable to all cases where the particular law of the election did not otherwise expressly provide, applicable to corporations both public and private, or to any other body of men holding an election under any law of this State, unless the law of the election specifies a different rule.Subsequently to this the corporation of Wilmington have accepted a law regulating their election, which law does not provide any other rule. It is, therefore, to be presumed that the legislature in passing, and the corporation in accepting, this law, designed that the general principle applicable to all elections should govern. And this presumption is strengthened by what is alledged to have been theuniform usage on this subject; which lord Mansfield says, inRex vs. Varlo (1 Cowp. 250) is of great force where the words of the charter are doubtful. The amended charter provides only that the treasurer shall be elected by ballot, annually by the citizens, on the first Tuesday of October. This act was passed in January, 1832. I consider it as adopting the general rule previously announced by the legislature, that a plurality of votes should make a choice unless otherwise specially provided; a rule much more convenient in practice, and which will prevent frequent failures to elect.

The third cause shown against granting the mandamus in this case is, that by the law of this corporation the members of the city council are the judges of the election, returns, and qualifications of all officers of the corporation; and that this court has not jurisdiction by appeal or otherwise to review their decision. This brings in question the right of the Superior Court to issue a mandamus to the corporation of Wilmington, commanding its officers to judge according to law. It necessarily brings up the broad question of the power of this court to compel corporations by mandamus to do acts which by law they ought to do; for if it is an answer in one case that they are the judges of the law, it is so in every case, and the remedy by mandamus does not exist. For the corporation or some branch of it is necessarily the judge in the first instance, not only of the question of the qualification of its officers, but of every question brought before it; yet it does not follow that where the facts are admitted or proved, this court has not the power to require it to judge according to law. It is no discretionary power, if it were the writ of mandamus could reach no further than to compel them to act according to their discretion; but this is a matter of legal right, over which neither the city council nor this court have any discretion; and the question is whether this court has power by mandamus to compel the acknowledgment of that right on the part of the city council.

"The writ of mandamus is a prerogative writ issuing (in England) from the Court of King's Bench, directed to persons, corporations, or inferior courts requiring them to do a specific act, as being the duty of their office, character or situation, agreeably to right and justice. This writ affords a proper remedy in cases where the party has not any other means of compelling a specific performance. The only proper ground of the writ is a defect of justice." (2 Selwyn'sN. P. 261.) "The power of issuing writs of mandamus is one of the highest and most important branches of the jurisdiction of the court of King's Bench" (Awdley vs. Joyce, Poph. 176; 1Chitty's Gen. Pr. 789.) "In order to maintain the peace and good government of corporations, and to secure their adherence to the purposes of their institution, the law has appointed a tribunal to inspect the conduct of their internal affairs, and to "whose decision all disputes arising within, them may he referred. This tribunal in the case of eleemosynary and ecclesiastical corporations, is in general, that of a private visitor; of all other corporations, the Court ofKing's Bench." "The latter exercises is visitatorial jurisdiction in two different ways; by writ of mandamus and information in the nature of quo warranto." (2 Kyd onCorp. 174.)

The jurisdiction of issuing this writ is exclusively in the King's Bench, as the court having a supervisory power over all inferior courts and corporations; the principle on which it issues is thedefect of remedy; the impossibility of enforcing a legal right by any other means, or any sufficient means, than a resort to this power existing in the Court of King's Bench to supervise the conduct of all public corporations, and compel them to act according to law. Under this general power the court of King's Bench in England has repeatedly and always exercised the right to issue the writ of mandamus to public corporations in cases similar to the present; and as this court has the same powers of the Court of King's Bench, which cannot be taken away but by express exclusive words, we have no doubt of our jurisdiction in the case before the court. (17 Com. LawRep. 325; 9 Barn. Cres., Rex vs. Mayor of London.) By the act for the better regulation of the Supreme Court within this government, the judges of that court, and now of the Superior Court, "shall minister justice to all persons, and exercise the jurisdictions and powers hereby granted them, concerning all and singular the premises according to law and equity, as fully and amply to all intents and purposes whatsoever, as the justices of the King's Bench and Common Pleas at Westminster, or the chancellor of England may or can do. (Digest 104.)

LAYTON, Justice: — In the argument of this cause the jurisdiction of this court over the matter has been denied. Now if the court have no jurisdiction in the premises, it would be manifestly improper to decide it: indeed, it would be a usurpation of judicial authority injurious to the rights of corporations, and nowhere warranted by the constitution.

Before I proceed then, to discuss the other questions involved in the case stated, and upon which the opinion of this court is invoked, it is necessary, in the first place, to ascertain whether this court has legal jurisdiction to hear and determine the questions submitted for consideration in the case stated. The constitution of this State vests in the Superior Court "jurisdiction of all causes of a civil nature, real, personal and mixed, at common law, and all other the jurisdiction and powers vested by the laws of this State in the Supreme Court, or Court of Common Pleas." (Amend. Const. Art. G,sec. 3.) The third section of the act of the general assembly of this State, entitled "An act for the better regulation of the Supreme Court within this government," passed April 28, 1760, vests in the Supreme Court "full power and authority to examine, correct and punish, the contempts, omissions, neglects, favors, corruptions and defaults, of all or any of the justices of the peace, sheriffs, coroners, clerks, and other officers within this government; and also to award process for levying all such fines, forfeitures and amerciaments, as shall be taxed, imposed or set in the said Supreme Court, or estreated there; and generally shall minister justice toall persons, and exercise the jurisdictions and powers hereby granted them, concerning all and singular the premises according to law and equity, as fully and amply to all intents and purposes whatsoever, as the justices of the King's Bench and Common Pleas at Westminster, or the chancellor of England may or can do." (1Del. Laws 376; Digest 104.)

The Court of King's Bench in England has power to issue the writ of mandamus, and "figuratively, it has been treated as its principalflower." (8 East 219.) The writ of mandamus has been defined to be "a prerogative writ, containing a command in the king's name, and issuing from the Court of King's Bench, directed to persons,corporations or inferior courts of judicature within the king's dominions, requiring them to do a certain specific act, as being the duty of their office, character or situation, agreeably to right and justice." (2 Wheat. Selw. N. P. 261.) And "a defect ofjustice," is. regarded as the proper ground of the writ. A mandamus lies either to restore a person wrongfully ousted, or to admit a person wrongfully refused. (Ibid 262.)

By an extension of the ancient writ of restitution, a remedy has been provided for persons who have been duly elected to offices, although they never had possession. Hence a mandamus lies to admit as well as to restore a person to his office as a mayor, alderman, town clerk, c. (2 Wheat. Selw. 262; Com. Dig.tit. Mandamus A. 17 Com. Law Rep. 325.) This court, therefore, has jurisdiction to issue a mandamus to corporations, "for the purpose of compelling them to observe the ordinances of their constitution."

In the case presented to the court it is contended by the relator, John Hagany, that he has been duly elected treasurer of the city of Wilmington, and prays the exercise of the powers of this court to command the city council to admit him to that office.

On behalf of the city council it is alledged, 1. That John Hagany is an ordained preacher of the gospel, and as such, constitutionally incapable of holding any civil office in this State. 2. That John Hagany was not duly elected; that, according to law, it required amajority of the whole number of corporators voting to elect: that he received a plurality merely, and that a plurality cannot elect. 3. That the city council are legally constituted the sole judges of the election of their own officers; and that it is a political power, from which there lies no appeal to this court.

In answer to this last objection it is proper to remark, that although the 5th section of the act of incorporation declares that the city council "shall be the judges of the election returns and qualifications of their own members, and of all other officers of the corporation," yet this power is vested in the city council, to act within the legitimate scope of their authority. It is not a question of mere discretion, independent of a right of review by the Superior Courts of law, for an unjust and illegal exercise of this power vested in the corporation by law. To illustrate this position: Suppose that in the exercise of this discretion on the part of the city council they had confessedly and corruptly decided against the right of an individual, notoriously elected by a large, overwhelming majority of not only the corporators voting at the election, but of all the corporators within the limits of the corporation; will it be contended for a moment, that this court, in the exercise of this extraordinary power, cannot look beyond the mere fact of decision by the city council into the justice and legality of that decision? Could it have been the design of the legislature to vest in this corporation the power to do an act of gross injustice, inconsistent with the rights of the corporators; indeed utterly subversive of the great objects of the corporation, without subjecting their unjust and corrupt decision to the supervision of the Superior Court, in conformity to the principles of the common law, under and subject to which, the corporation accepted its charter? So gross a proposition need only be properly stated to be unhesitatingly repudiated. Indeed, such a pretence is set up in the face of well settled principles, and of numerous adjudged cases. The writ of mandamus is "one of the modes in which the courts exercise common law jurisdiction over civil corporations, for the purpose of compelling them to observe the ordinances of their constitution, and to respect the rights of those entitled to participate in their privileges." (Angell Ames on Corp. 426.) "The writ of mandamus is substantially a command in the name of the sovereign power directed to persons, corporations, or inferior courts of judicature within its jurisdiction, requiring them to do a certain and specific act, as being the legal duty of their office, character or situation." (Id. 1b.)

We come then to the second objection, and are led to inquire "Was John Hagany duly elected treasurer of the corporation?" To determine this question, we must advert to the law of corporations. Corporations are either public or private. As to private corporations, where the election or choice is vested in a definite number of corporators, the law requires a majority of the whole number of corporators. But in public corporations, where the elective franchise is vested in an indefinite number, there a majority of the corporators actually voting, may elect: and such a majority is necessary to a valid election. (Cases Temp. Hardw. 316.) Has this general law of corporations been modified, or controlled by the general election, law of this State? I think not: for it is a principle of law, that a general law does not affect corporations or corporate rights, unless they are expressly mentioned in terms in the law. The election laws refer to State elections and State officers. Corporate officers are not State officers, otherwise, by express provision of the constitution Mr. Hagany, as an ordained preacher of the gospel, would not be eligible to office in this corporation.

A question might have been presented as to how far the uniform construction given to their charter by the corporation itself; how far the custom, prevailing in the corporation under a by-law of the corporation, would control the general provisions of law. (SeeCases Temp. Hardw. 316; The King vs. Tomlyn.) But this question of custom or construction, has not been presented as a part of the case stated; and we are driven to a decision of this case upon the general principles of law applicable to this question.

It appears there were nine hundred and eighty-six votes cast at the election held on the 13th of October, of which John Hagany received but four hundred and ninety, being a plurality over other candidates, but a less number than a majority of all the corporators who voted at that election. I am of opinion, therefore, and concur with the chief justice, that John Hagany was not duly elected treasurer of the city of Wilmington.

In regard to the remaining questions, I concur with the opinion and general reasoning of the court, first: that the office of treasurer of the corporation of the city of Wilmington, is not "a civil office" within the meaning of the constitution. On this point, I found my opinion upon the case of The Commonwealth ofPennsylvania vs. Alexander James Dallas, reported in (3Yeates 300,) and upon the authorities referred to in that case:second: that by the terms of the original act of incorporation, "any substantial inhabitant of the town" could be elected to that office. In the year 1739, when the charter was first granted, there was no exclusion of the clergy' in this State, then a colony. The constitution of this State secured to corporations, c., the enjoyment of their franchises "as if the constitution of this State had not been altered." (Art. 8, Sec. 9 of theConstitution of 1792.) The same provision was incorporated in the amended constitution of 1831.

The construction contended for by the counsel for the relator operates as a personal disqualification, and is against natural right; and would be in derogation of one of the franchises of the corporators, all of which were expressly recognized and secured to them by the constitution. I am of opinion, therefore, that an ordained preacher of the gospel is not excluded by the constitution from holding office in a corporation, which was in existence at the time of the adoption of the constitution of 1792, and in which corporation he had been previously eligible.

Mandamus refused.