(Organization of municipal legislative bodies.)

and by him forwarded to Thomas H. Burrowes, the secretary of the commonwealth, by a locomotive prepared for the occasion.

Though the sheriff affected to consider these the true returns, he acknowledged in his testimony before the committee, that he was cognisant of there having been another return made out by a majority of the judges, in the mode pointed out by law, and also that he knew the fact that the democrats had a majority in the county of Philadelphia. The returns of the majority judges were disposed of as directed by law, one copy being deposited in the prothonotary's office, and another (under a sealed cover, directed to secretary of the commonwealth) deposited in the nearest post-office; these returns duly reached the secretary, by course of mail, and were in his possession previously to the meeting of the legislature. Yet, with a full knowledge of all these facts, Thomas H. Burrowes, the secretary of the commonwealth, at the assembling of the legislature, withheld from both houses the returns of the majority judges of the county of Philadelphia, and sent in the minority returns only.

At the time appointed for the assembling of the legislature, Francis R. Shunk, the clerk of the former house of representatives, proceeded to organize the house, in accordance with the immemorial usage of the commonwealth, when the persons named in the minority returns from the county of Philadelphia, appeared and claimed their seats as members of the house; the minority returns sent in by the secretary of the commonwealth having been read by the clerk, one of the members elect from the county of Philadelphia presented a copy of the returns signed by the majority judges, duly certified by the prothonotary, which was read by the clerk in connection with the minority returns received through the channel of the secretary's office. In the course of these proceedings, Thaddeus Stevens, a member elect from Adams county, who held a similar certificate of election to that presented by the members from Philadelphia, rose and made a motion (contrary to the practice observed in the organization of the legislature of Pennsylvania, since its existence as a commonwealth) that tellers should be appointed for the purpose of electing a speaker; a departure from the custom so long prevalent of calling upon the clerk of the former house to superintend the election of speaker, and to announce the result. Mr. Stevens himself put the question, decided his motion to be sustained and named the tellers, who ascended the platform, and held an irregular and informal election; this was followed by the tellers calling out the names.

(Organization of municipal legislative bodies.)

of the eight pretended members of the county of Philadelphia, and concluded by the announcement that Thomas S. Cunningham had been elected speaker of the house; Mr. Cunningham then ascended the platform, drew from his pocket a Bible furnished him for the occasion, and after the form of an oath had been administered to him, qualified his associates, when this self-constituted house adjourned.

During this time, the democratic members of the house, 56 in number, proceeded, in the mode prescribed by law, to the election of a speaker, who was duly qualified, and after administering the oath of office to the other members, the house adjourned. The spurious house of representatives kept up their organization for several weeks (the senate, which was in political accord with the seceders, refusing to recognise the legitimate organization), and these unprecedented proceedings having naturally called together a great multitude of the citizens of the commonwealth at the seat of government, the governor made their presence a pretext for calling out the military, ostensibly for preserving the peace, but really for the purpose of overawing the house of representatives (from which circumstance, and the fact that orders were issued to the troops by the commanding-general, to load with buckshot, this episode in our history is generally known as the "Buckshot War"); this body, however, continued to meet, from day to day, in the hall dedicated to the purposes of legislation, having constantly a quorum, until, on the 17th December, they received an accession to their numbers, in the persons of three of the adherents of the other party, who, under a solemn conviction of duty, left the seceders who were following in the wake of Thaddeus Stevens, presented themselves to the legitimate house of representatives and took the oaths required by law. The other members of the seceding body refused to take their seats or to enter upon the discharge of their duties, until the senate was compelled by public opinion, on the 25th of December, to recognise the legitimate organization, when they successively returned to the post of duty, with the exception of their leader, Thaddeus Stevens, who returned the trust confided to him into the hands of his constituents.*

* After a lapse of some weeks, Thaddeus Stevens appeared and claimed his seat, but the house decided, that by his conduct, and especially by his address to his constituents, he had virtually resigned the same; they therefore declared his seat vacant, and ordered a new election, at which Mr. Stevens was again returned.

(Organization of municipal legislative bodies.)

The committee, from the facts before them, came to the following conclusions, which they presented to the house :

1. The difficulties which took place at the seat of government, on the 4th day of December last (the day appointed for the meeting of the legis lature), had their origin in a fraud concocted by certain federal return judges, in the county of Philadelphia, with the advice and co-operation of William B. Reed, the attorney-general of the commonwealth, and John G. Watmough, the sheriff of the city and county of Philadelphia, by which the regularly-elected members of the house of representatives, were iniquitously attempted to be deprived of their seats; a fraud which Thomas H. Burrowes, secretary of the commonwealth under Governor Ritner, and Thaddeus Stevens, one of his canal commissioners, and a member of the house from Adams county, attempted to consummate, the former by suppressing the legal election returns of said county, and the latter, by attempting to organize the legislature in a manner unknown to the constitution and laws.

2. No necessity existed, at any period, for calling into service the military; on the contrary, such call was made by ex-Governor Ritner, in the absence of every semblance of necessity, and was manifestly a stretch of power, in derogation of the plainest dictates of law, justice and humanity.

3. If, in point of fact, there was such a disturbance at the seat of government, as is alleged, then, it was clearly the duty of those in power, to call upon the civil authorities to suppress it; the law points out the mode, and Governor Ritner's attorney-general advised that course to be taken; no such application was made, although the courts of justice and officers of the law were in the free and undisturbed exercise of their usual duties; the constitution ordains, that "the military shall, in all cases and at all times, be in strict subordination to the civil power;" the order, therefore, calling out the troops, was unconstitutional and illegal; and there being no necessity for their presence at the seat of government, the conclusion is irresistible, that they were called into service, to aid and assist the enemies of republicanism, in organizing a legislature, in violation of the constitution and laws, and contrary to the wishes of the people of this commonwealth.

An impressive lesson for the people of the present day!

DUFFIELD'S CASE.

In the Court of Common Pleas of Philadelphia.

DECEMBER TERM 1862.

(UNREPORTED.)

[Ouster.]

Where a member of a municipal legislative body, has been expelled, without notice or hearing, a mandamus will be granted to restore him, on notice and hearing.

But where the council has determined, that the member has incurred a disqualification, by accepting a federal office, the court will not interfere.

This was an alternative mandamus at the suit of Thomas J. Duffield, to restore him to his place and office as a member of the common council of the city of Philadelphia, from which he had been expelled without notice or hearing.

Phillips (with whom were Cassidy and Wharton) for the respondents, moved to quash, on the ground that there was nothing in the suggestion which justified the issuing of the writ; that it showed upon its face the relator's incapacity to hold the office; and that the court was without jurisdiction, as the council was the sole judge of the qualifications of its members.

Sellers, F. C. Brewster and Gilpin, contrà.

THOMPSON, P. J., delivered the opinion of the court. The writ of mandamus is brought as a writ of right, by a party whose office has been taken from him by the act of the respondents; and the simple question is, first, whether the court has the power to redress the alleged injury; and secondly, is this the proper way to do it?

The legislature cannot create a body with judicial powers, except under the forms of law, and under the con

(Ouster.)

trol of law, else they would have the right to take away the powers of the courts. If the legislature designed (which I do not think they did), to authorize a municipal body to exercise judicial powers outside of all law, such authority would be judged to be out of the pale of the constitution. In this case, it is alleged, that this power is given to council, to judge without reference to any court, and in the face of any adjudication by any court. If this be so, I have only to say, that we have advanced considerably since the time of Cromwell; in his time, in the case in Stiles, which has been cited, it was ruled, that a man must be heard before being condemned. I would be sorry if we had failed to do that which, in common justice, seems to have been required as long ago as Cromwell's time; even under his stern rule, he brought his officers into court, to answer why they removed a man without hearing. An act of assembly that says that a body shall try a man, without a hearing, and without giving him a day, would be unconstitutional. The court cannot determine what decision shall be made, and it has never attempted to do so; nor has the supreme court or any court in this commonwealth attempted to do so; but the court is bound to protect citizens, by seeing that the law, as applicable to their case, is fairly and properly administered. The supreme court has, in a recent case, decided, that they cannot require this court to decide in any particular way, but they can require the court to go on and decide. There may be no written law which says, that a man may be present in a case like this, but there is a law, written upon the conscience of every man, which dictates to him the principle, that no man shall be deprived of his life, his liberty, his property or his office, without the opportunity of knowing that he is called upon to defend his rights.

Upon this ground, and without attempting to say, at present, whether the council had any reason to act as they did, we do say, that in doing what they did, they