(Disqualifications for office.)

that purpose, whenever the exigency of circumstances, whether accidental or otherwise, shall render it necessary.

Judgment is, therefore, rendered for the defendant; and that he recover his costs of Jacob Africa, the relator. Judgment for defendant.

Where the law confers upon a municipal legislative body the power of judging of the qualifications of its own members, it has been held, that they have exclusive jurisdiction to determine whether one of their members has or has not vacated his seat by accepting a disqualifying office; and that the courts have no jurisdiction in the premises. Commonwealth v. Loughlin, 20 Leg. Int. 100; Commonwealth v. Barger, Ibid. 101. It seems, that where a city charter requires one of its officers, in the execution of his official duties, to reside without the territorial limits of the corporation, he does not thereby lose his qualification for another office which requires a two years' residence previous to the election; the doctrine seems to be, that if the office be irrevocably conferred for life, the law fixes the domicil at the place where the functions are to performed; but that, if it be temporary or revocable, the presumption is against a change. Commonwealth v. Jones, 12 Penn. St. R. 365, per Gibson, C. J. It has been decided that, under a statute which disqualifies persons "holding an office under the government of the United States," from serving in a municipal office, a deputy-marshal is incompetent; he is a recognised officer of the United States. Commonwealth v. Ford, 5 Penn. St. R. 67. "There is no state in the union," said Mr. Justice Burnside, in that case, "whose people and government bave been more jealous of state rights than the people and government of Pennsylvania." The word "eligible" relates to the capacity of holding as well as the capacity of being elected to an office. Carson v McPhetridge, 15 Ind. 327. See Cushing's Lex Parl. Am. § 78.

COMMONWEALTH v. CLULey.

In the Supreme Court of Pennsylvania.

JANUARY TERM 1867.

(REPORTED 56 PENNSYLVANIA STATE REPORTS 270.)

[Majority for disqualified person.]

Where, at an election for sheriff, a majority of the votes are cast for a disqualified person, the next in vote is not to be returned as elected.

Rule to show cause why a quo warranto should not issue, on the suggestion of J. Y. McLaughlin, against Samuel B. Cluley, to show by what warrant he held and exercised the office of sheriff of Allegheny county.

The suggestion set forth that at the general election held on the 9th of October 1866, Cluley received 19,915 votes for the office of sheriff, and McLaughlin received 12,925 votes for the same office; that Cluley was commissioned on the 12th of November 1866, notwithstanding he had been commissioned for the same office on the 28th of August 1863, and had discharged its duties until the first Monday of December 1866, and could not lawfully be commissioned as sheriff of the same county twice in six years, under the 1st section of the 6th article of the constitution of Pennsylvania.

J. K. Kerr, R. B. Roberts and W. H. Lowrie, for the relator.

T. M. Marshall and J. Veech, for the respondent.

STRONG, J., delivered the opinion of the court. A writ of quo warranto is not a writ of right. Even our act of assembly of June 14th, 1836, recognises this; it enacts that such writ may be issued by the supreme court in all cases in which the writ of quo warranto at common law

(Majority for disqualified person.)

may have been issued, and in which the court had, before the passage of the act, the power of granting informations. in the nature of such writ. The British statute of 9 Ann. ch. 20, was not, at first, adopted in this state; it was not reported in force by the judges; but its provisions were incorporated into our revised code.

Under the British statute, it was always held to be within the discretion of the court, whether to grant or withhold an information in the nature of a quo warranto, and the court acknowledged themselves bound to exercise a sound discretion upon consideration of the particular circumstances of each case. This was said by Lord Mansfield in Rex v. Wardroper, 4 Burr. 1964; and the same rule was recognised in Rex v. Dawes, 4 Burr. 2022, and in Rex v. Sargent, 5 T. R. 466; and there are cases in which courts have refused leave to file an information, at the suggestion of a private relator, even when a valid objection to the defendant's title has been shown. Rex v. Parry, 6 Ad. & Ellis 810; 2 N. & P. 414. Nor has this court, since the act of 1836, adopted any other rule. In Commonwealth v. Jones, 12 Penn. St. R. 365, the British practice was recognised as the rule with us; and though it has since been decided, that it is not indispensable that a rule to show cause should be obtained, before the writ can issue, no decision has been made that this court is obliged to entertain such writ, if, in their opinion, it was improvidently issued. The issue of the writ does not end the discretion of the court.

Before the act of 1836, informations in the nature of quo warranto, at the instance of a private relator, were always required to be with leave of the court, and leave was not granted, except upon application of a competent relator. No one was held competent who had not a sufficient interest to warrant his interference; and our statute has made no change in this particular. Its second section gives to courts of common pleas concurrent jurisdiction with the supreme court, in five classes of cases; the first

(Majority for disqualified person.)

three relate to municipal and other corporate offices; and the act provides that, in such case, the writ may be issued upon the suggestion of the attorney-general, or his deputy in the respective county, or of any person or persons desiring to prosecute the same. The other two classes relate to usurpations of corporate rights, or forfeitures of corporate privileges. As the act was reported by the commissioners to revise the civil code, it was drawn so as to provide that writs in such cases should be granted only upon the suggestion of the attorney-general or his deputy. The legislature, however, altered the provision, and enacted that writs in these cases, as in the others, might be issued upon the suggestion of any person or persons desiring to prosecute the same.

But the statute of 9 Ann. allowed informations at the relation of any person desiring to sue or prosecute them; and under that statute, the rule was, that a private relator must have an interest. Our act, which substantially incorporates the provision of the British statute, has received the same construction; this court has construed the words "any person or persons desiring to prosecute the same," to mean any person who has an interest to be affected; they do not give a private relator the writ, in a case of public right, involving no individual grievance. This was ruled in Commonwealth v. Allegheny Bridge Co., 20 Penn. St. R. 185; in Murphy v. Farmers' Bank, Ibid. 415; and Commonwealth v. Railroad Co., Ibid. 518. And it is to be observed, that the legislature has placed all the five classes of cases on the same footing, in this particular; if a private relator cannot sue out a writ to enforce a forfeiture, without having an interest, the statute gives him no greater right, when he complains of usurpation of a county or township office; the right of a relator in each class of cases is defined by the same words.

The relator, in the present case, suggests that Samuel B. Cluley now usurps, intrudes into and unlawfully holds the office of high sheriff of Allegheny county; that at the

(Majority for disqualified person.)

general election on the 9th day of October 1866, an election was held for sheriff of said county; that at the election, the said Cluley received 19,915 votes, and the relator received 12,925 votes for the said office; that the vote was certified to the governor, and that Cluley was commissioned sheriff; and that he has since acted as such, notwithstanding the fact, that he was commissioned sheriff of said county on the 28th of August 1863, and discharged the duties of the office, from that time until the first Monday of December 1863.

Now, on this showing, what interest has the relator in the question he attempts to raise? What more than any inhabitant of Allegheny county, or of the commonwealth? He was a rival candidate, at the election, for the office; but he was defeated, with a majority against him of 6990. Doubtless, if his successful rival is incapable of holding the office, on account of the constitutional provision "that no person shall be twice chosen or appointed sheriff, in any term of six years," or for any other reason, and that incapacity entitles him, the relator, to the office, he has an interest. He certainly can have none, if a judgment of ouster against Cluley, would not give the sheriffalty to him. But surely, it cannot be maintained that, in any possible contingency, the office can be given to him. The votes cast at an election for a person who is disqualified from holding an office, are not nullities; they cannot be rejected by the inspectors, nor thrown out of the count by the return judges; the disqualified person is a person still, and every vote thrown for him is formal. Even in England, it has been held, that votes for a disqualified person are not lost or thrown away, so as to justify the presiding officers in returning as elected, another candidate having a less number of votes, and if they do so, a quo warranto will be granted against the person so declared to be elected, on his accepting the office. See Cole on Quo Warranto Informations 141-2; Regina v. Hiorns, 7 Ad. & Ellis 960; 3 Nev. & Perry 184; Rex v. Bridge, 1 M. & S.