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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. We cannot admit that this, as has been insinuated, is any authority in favor of the respondents, particularly, taken in connection 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 incorporation 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 unimportant 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 of 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 case to which I have alluded, vote on the principle, without each one voting directly on his own case; and even this could only be justified on the plea of necessity, to prevent a failure of the act of incor

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poration. 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 councilmen, or a majority of them, who are authorized to judge of the election of their own members. The legis lature have been cautious not to extend the power further than the necessity of the case may require, and within these limits they may be allowed to act; and unless the legislature expressly say otherwise, they shall not be permitted to go, with my consent, a step further.

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, it appeared, that John Paisley had 217 votes, James McCloskey, 155 votes, and David Farrel, 150 votes; whereas, the highest of the other candidates had but 147 votes. Two questions then arise: 1. Have the commissioners power to decide, without examination or control by the supreme court? and-2. If we have power to interfere, is this such a case, in which

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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 are 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 king'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 constant practice of granting informations in the nature of a writ of quo warranto, for exercising an office in a private as well as a public corporation; not by force of the statute of 9 Ann. ch. 9, but by power derived from the common law. As the jurisdiction of the court has been expressly granted, it cannot be taken away, except by express words or necessary implication, neither of which appears in this act.

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

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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 of 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 regards Mr. Paisley and Mr. McCloskey, there cannot be the slightest particle of doubt; Mr. Paisley had a majority of seventy, and Mr. McCloskey, a majority of eight votes. How the commissioners could have supposed they were justified in setting aside their election, on the proof of two, or, at most, of three illegal votes, passes my comprehension. I see no reason for supposing that the judges of the election were corrupt, though 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 authorized to vote in the township; by the latter description, he says, he means aliens; in his cross-examination, 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 that it was proven against, that he recollects. Although it is clear, that the first two were duly elected, yet, there is some difficulty as respects David Farrel; 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

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election. It is to be regretted, that we cannot set aside the election as respects David Farrel, and order a new one, which might be the means of restoring harmony in the township. As we have no such power, the rule must be made absolute as to David Farrel, and refused as to Messrs. Paisley and McCloskey.

GIBSON, C. J., and HUSTON, J., dissented.

The doctrine of the principal case, that no man shall be admitted to vote on the question of the validity of his own election, appears to have been generally received and adopted, almost without qualification. In Rice v. Foster, Chief Justice Booth, in the court of errors and appeals of the state of Delaware, went so far as to say, "that an act to make a man a judge in his own cause, would not be valid, because it never was the intention of the constitution to vest such power in the legislature, the exercise of which violates the plainest principles of natural justice." 4 Harrington 485. The legislature of Pennsylvania, as early as 1683, passed an act providing that no member of a court of justice should sit in judgment while his own cause was on trial; and so important was this principle deemed, that it was re-enacted in 1693 and again in 1700. 1 Miller's Laws 13.

It was said in Carson's case, in 1787, that the practice of the general assembly of Pennsylvania had always been, to refuse a member's vote, on the question of his right to a seat. 2 Lloyd's Debates 23; that this was the practice as early as 1689, see 1 Colonial Records 267-8; and see Lancaster Election, 4 Votes of Assembly 125. In Stockton's case, the senate of the United States solemnly decided that a sitting member had no right to vote on the question of his own title to his seat. Cong. Globe 1865-6, page 1635. In Cushing's Lex Parl. Am., §§ 1840-4, there are recorded five cases in which the British House of Commons decided against the right of a member to vote, on a question in which he had a personal interest. And see Gloucester Election, Cush. Elect. Cas. 97.

It would seem, from these authorities, that the interest which will exclude a member from voting, must be one personal to himself, not merely one enjoyed in common with his fellow-citizens (May 353); and that the rule does not extend to preliminary or incidental questions.