(Injunctions.)

the views of their own political adherents. In Lawrence v. Knight, the court refused to enjoin the prothonotary from certifying or the return judges from counting, certain military returns, regular upon their face, but admitted on the argument to be mere forgeries, and this too, though asked for in favor of the candidates of the political party of which the learned judge who delivered the opinion was an honored member. So too, the supreme court of Pennsylvania, in Hulseman v. Rems, 41 Penn. St. R. 396 (ante 314), refused to enjoin parties holding certificates of election based upon similar returns, which were evidently forged, from making use of the same; and this decision also, was against the candidates of the party to which a majority of the judges of that court were attached. But in Miller v. Lowry, 5 Phila. 202, a majority of the same court that had decided Lawrence v. Knight, regardless of their former decision, and utterly ignoring the authority of the supreme court in Hulseman v. Rems, enjoined a candidate who had received a certificate of election, regular on its face, from making use thereof, on the ground that it had been fraudulently issued by the return judges, though it was not shown that the party holding the certificate was any party to the alleged fraud; and this injunction was granted in favor of the candidate who was in political accord with the majority of that court. And see Peck v. Weddell, 17 Ohio St. R. 271.

An injunction will not be granted to restrain the holding of a municipal election, directed by statute, on the ground of the unconstitutionality of the act; a wrong resulting from an election must be tried before the proper tribunals, or by testing the right of the officers elected, by quo warranto. Smith v. McCarthy, 56 Penn. St. R. 359. But an injunction will lie to restrain the receipt of votes from a class of persons who are clearly disqualified. McIlvain. Christ Church of Reading, 28 Leg. Int. 126. So, where two bodies of men claimed to be the common council of the city of Philadelphia, an injunction was granted in favor of the one having the primâ facie title, by virtue of the regular certificates of election, to restrain the other body from interfering with the organization. Kerr v. Trego, 47 Penn. St. R. 292; 5 Phila. 229 (post 632). Where the supreme court on certiorari has affirmed the decree of the court below in a contested election case, there having been nothing before them but the record, an injunction will not be granted to restrain further proceedings on the merits in the court below, under a petition for a review which was pending and undetermined, when the certiorari was sued out. Gibbons v. Sheppard, 2 Brewst. 118 (ante 558).

LAMB v. LYND.

In the Supreme Court of Pennsylvania.

JANUARY TERM 1863.

(REPORTED 44 PENNSYLVANIA STATE REPORTS 336.)

[Mandamus to elect.]

A mandamus will lie to compel the select and common councils of a city to assemble in joint convention and elect municipal officers, as required by the charter of the city.

It is no valid reason, on the part of the select council, for refusing to meet the common council, that members of the latter body, not legally elected, have been retained, and others, legally elected, have been fraudulently excluded, since each body is the sole judge of the election and qualification of its own members.

This was a petition of Owen Lamb and others, members of the common council of the city of Philadelphia, for a mandamus to compel the members of the select council to assemble in joint meeting with the common council, at the next stated meeting of councils, and proceed to the election of certain municipal officers required by the charter of the city.

The petition set forth that it was provided by the 50th section of the act of 2d February 1854, that it should be the duty of the councils of the said city to provide, by ordinance, for the establishment and regulation of all the departments instituted by that act and other laws in force in said city, and such others as might, from time to time, be needful; and that by the 28th section thereof it was provided, that the councils should, in joint meeting, and by viva voce vote, appoint all the heads of departments, not elective, who should serve for such periods as might be fixed by ordinance. That by certain ordinances of said city, provision was made for the establishment and regulation of the departments of highways, city property and

(Mandamus to elect.)

water; and for the election of a chief commissioner and two commissioners of highways, commissioner of city property, chief engineer of water-works, commissioner of markets, superintendent of city railroads, agent of Girard estate and superintendent of Girard estate; to which ordinances the petitioners craved leave to refer. That by an ordinance passed the 31st January 1862, it was provided, that an election should be held for heads of municipal departments by the select and common councils assembled jointly in convention, on the second Thursday in February in each year; and that the said officers should hold their respective offices until their successors should be duly elected and qualified; but nothing therein contained should be deemed to extend the terms of such officers beyond the month of February in any year. And that by virtue of the said act of assembly and ordinance, it became the duty of the select and common councils to assemble jointly in convention, for the purpose of electing said officers, on the second Thursday of February 1863.

That the common council did, at their stated meeting held on the 5th February 1863, pass a joint resolution providing for the assembling of the said joint convention of councils, according to law, and the same was duly transmitted to the select council, which postponed the consideration thereof until their next stated meeting, which was held on the 12th February, the day on which the elections aforesaid were by law directed to take place; on which day, the select council further postponed the consideration of said joint resolution, and adjourned without taking further action thereon; and at the next stated meeting of the said select council, held on the 19th, a joint resolution to meet common council in joint convention for that purpose, was rejected by the votes of the thirteen members thereof named as defendants; that on the said 19th February, a joint resolution was passed by common council, providing for a joint convention on that day, to be held for the purpose of electing said municipal

(Mandamus to elect.)

officers, and duly transmitted to select council, and the same was postponed in said select council on the same day; whereby vacancies had occurred in the said municipal offices, and it was the duty of councils to meet in joint convention for the purpose of electing persons to fill the same, before the first day of March ensuing, when the terms of office of the then incumbents would expire.

The petitioners further showed that they were members of the common council of the said city, and also residents and tax-payers thereof, and that the select council consisted of twenty-five members. That the said common council were duly organized on the first Monday of January 1863, and had since transacted the public business, and had concurred with select council in passing ordinances which had been approved by the mayor, and had assembled in joint convention with the select council for the election of directors of certain railroad corporations, according to law. That a majority of the members of the said select council, to wit, the thirteen defendants, intended and had so declared, as the petitioners averred on information and belief, not to assemble in joint convention as aforesaid, to perform the duty imposed upon them by law, and that it was their purpose to prevent the election of said officers as required by law, to the great detriment of the city, and contrary to their plain duty as select councilmen in the premises. They therefore prayed that a writ of mandamus might issue, &c.

LOWRIE, C. J., delivered the opinion of the court. The performance of official duty may be compelled by the process of mandamus; this is not disputed. By the corporate law of Philadelphia, it is made the duty of the select and common councils to meet in joint meeting, and appoint the heads of departments, not elected by the people; and by ordinance, the time for such joint meeting has been fixed. The duty is, therefore, perfectly defined, and ought to be performed; but a majority of select council have

(Mandamus to elect.)

refused to perform it: why should they not be compelled to obey the law, and do their duty?

Those of the defendants who attempt to excuse themselves, set up, that it is not their duty to obey the law, because, as they say, three persons, Isaac Leech, William Meeser and Thomas J. Barger, have been fraudulently retained as members of the common council, though they are not lawfully members thereof, and that the majority have fraudulently excluded two who ought to be inembers, McCurdy and Duffield, and this, for the purpose of obtaining a majority in favor of one political party, so as to control the elections that were to take place in the joint meeting, and that the defendants have refused to meet in joint meeting, in order to oppose and overcome the said fraudulent attempts, and to compel the common council to correct their organization.

We must, of course, understand the defendants as presenting these allegations as a legal justification of their conduct, and therefore, they must be taken as asserting a legal right to decide who are the proper members of the other branch of the council, though no part of the evidence can ever be properly presented to them, and though the very law under which they obtain their own official position, tells them plainly that each branch is to be the judge of the qualifications and election of its own members. They have not thought of this properly, or they would not have raised this dispute. We have no rule to judge the conduct of the defendants by, but the law; they can have no other rule than this, to guide their official conduct; in affairs wherein they have no official right or authority to decide, they can have no official right to question; officially, they must treat as right, what they have no authority to correct; if this be not true, we have no difference between usurpations and legitimate authority. And this is perfectly consistent with true social liberty, for it is the very nature of man in society, to form habits, customs and laws that are to regulate social conduct, and these naturally vary accord