The opinion of the court was delivered, February 12th 1872, by
Agnew, J.
We cannot doubt'the jurisdiction of the court in this case. There is no true analogy between the state legislature and the councils of a city. Their essential relations are wholly different. The councils are in no proper sense a legislature. They do not make laws, but ordinances; nor are the members legislators, with the constitutional privileges and immunities of legislators. The councils owe their existence, their rule of action, their privileges and their immunities solely to the law, which stands behind and above them; and their ordinances have their binding force, not as laws, but as municipal regulations only by virtue of the law which infuses them with vigor. Hence all those decisions which evince the unwillingness of courts to interfere with the members of the legislature have no place in the argument. The legislature and the courts, deriving their existence from the Constitution itself, are co-ordinate, independent branches of the government, standing upon a footing of equality in the exercise of those powers which the Constitution imparts to each in its own sphere. It would ill become a court of justice to attempt to displace a member of As-\ sembly. Its desertion of its appointed orbit would be followed by such a display of incompetency to effect its purpose as [470]*470would be its most signal rebuke. This distinction between a legislative body, representing the people, the primary power in the state, was directly in the mind of the chancellor who decided Barker v. The People, 20 Johns. 457, a case strongly relied on by the defence. He said : “ The disqualification pronounced by the court would then fail to produce exclusion from the legislature ; but it would, nevertheless, be effectual to exclude from all other public stations. Its effect in respect to all other public employment must be decided by the tribunals of justice.” If the councils of a city, no matter how large, may defy the law under which they exist and exercise >all their powers, so may the councils of the most humble borough, and thus the law of the land be violated with impunity, unless the courts of justice have power to curb their deviations and correct their misdeeds. The right of this court to issue the writ of quo warranto to determine questions of usurpation and forfeiture of office in a public corporation cannot be questioned. Its powers, fully established by the General Assembly, 22d May 1722, 1 Smith’s Laws 181, and repeated in the Act of 16th June 1836, Purd. 928, pi. 19, have been recognised in numerous decisions, to some of which I may refer : Commonwealth v. Arrison, 15 S. & R. 130; Commonwealth v. McCloskey, 2 Rawle 379-81; Commonwealth v. Jones, 2 Jones 365; Cleaver v. Com., 10 Casey 283; Lamb v. Lynd, 8 Wright 366; Updegraff v. Orans, 11 Wright 103; Kerr v. Trego, Id. 292. The second section of the Act of 14th June 1846, Purd. 832, pl. 2, confers upon the Courts of Common Pleas the power to issue writs of quo warranto concurrently with the Supreme Court in the cases enumerated, within which the present clearly falls. The cases cited by the defence against the exercise of the power by quo warranto, to remove one who has forfeited an office, have little weight. The Commonwealth ex rel. Duffield v. Laughlin, was an application for a mandamus to restore Duffield to a seat in council, after the common council had removed him for cause. The council had judged and determined the case, and this court refused to rejudge it, because it fell within the power of the council to determine the disqualification. This is no authority against the power of the court to remove one who has forfeited his seat by a violation of law, which the council has neglected or refused to redress. The Commonwealth v. Barger was the case of a motion for a quo warranto founded on the provision of the city charter that “ no member of the state legislature shall be eligible as a member of councils.” Says the opinion: “ This law is express that one who is a member of the legislature cannot be elected to council; but does not say that a councilman, on becoming a member of the legislature, loses his seat in council.” The latter question the court declined to decide and refused the motion. It is evident that the mind from which the opinion emanated [471]*471was laboring under the impressions produced in writing the opinion in Duffield’s Case, which is referred to, but which has no possible reference to such a case as that now before us.
The question as to the quo warranto evidently received but little consideration. As to the English cases of King v. Heaven, 2 Term Rep. 772, and King v. Ponsonby, 1 Vesey, Jr. 1, all that need be said is that they are inconsistent in the application now made of them, with the practice in this state, as shown by the authorities already cited. The quo warranto is a great prerogative writ, and may be refused if demanded for light and trivial causes. Hence, in England, in questions of mere privilege, where its loss proceeds from innocent acts, as removal out of the corporation limits, the court may and does let the corporation first declare the amotion. But when a forfeiture of office occurs by an illegal act, the violation of law stands on a different footing. In such cases in this state the power of the court will not be invoked in vain by the law officer of the government, the attorney-general, whose duty it is to vindicate the broken law.
It now remains to inquire into the case before us, and to see whether there is anything in the city charter which excludes the exercise of the power of the courts. Nicholas Shane became a city councilman in January 1870, for the term of two years. William S. Allen and Henry Huhn became councilmen in January 1871, for two years. On the 16th of December 1869, these gentlemen became sureties in the official bond of Joseph F. Marcer, city treasurer. By the Act of 31st March 1860, section 66, Purd. 229, pi. 74, it is made unlawful for any councilman of any corporation or municipality to be the surety of any treasurer of the corporation, and any person violating this provision “ shall forfeit his membership in such corporation, municipality or institution and his office or appointment thereunder, and shall be guilty of misdemeanor, and on conviction thereof be sentenced to pay a fine not exceeding five hundred dollars.” The defendants fall literally within the terms of the law: — It shall not be lawful for a councilman to be the surety of the treasurer. He cannot, at one and the same time, be both. While the bond lasts the relation of principal and surety continues, and in becoming a councilman the unlawful relation begins. He is then surety and councilman at the same time, and as a consequence the law forfeits the office. It is the purpose of the law to cut off all opportunities for the councilman to aid his principal in the bond, either by doing or forbearing to do that which duty would require, yet which self-interest might forbid. The demurrer admits the fact charged in the suggestion, and, as a consequence, the forfeiture; but denies the power of the writ of quo warranto to remove the offender from the office he has forfeited. Forfeiture arises in the unlawful relation, not upon the conviction for the misdemeanor. The consequence of con[472]*472viction is the fine, hut this does not enforce the forfeiture. If conviction of the misdemeanor be necessary to declare the forfeiture, it follows that neither court nor council can purge the body of the unlawful relationship.
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The opinion of the court was delivered, February 12th 1872, by
Agnew, J.
We cannot doubt'the jurisdiction of the court in this case. There is no true analogy between the state legislature and the councils of a city. Their essential relations are wholly different. The councils are in no proper sense a legislature. They do not make laws, but ordinances; nor are the members legislators, with the constitutional privileges and immunities of legislators. The councils owe their existence, their rule of action, their privileges and their immunities solely to the law, which stands behind and above them; and their ordinances have their binding force, not as laws, but as municipal regulations only by virtue of the law which infuses them with vigor. Hence all those decisions which evince the unwillingness of courts to interfere with the members of the legislature have no place in the argument. The legislature and the courts, deriving their existence from the Constitution itself, are co-ordinate, independent branches of the government, standing upon a footing of equality in the exercise of those powers which the Constitution imparts to each in its own sphere. It would ill become a court of justice to attempt to displace a member of As-\ sembly. Its desertion of its appointed orbit would be followed by such a display of incompetency to effect its purpose as [470]*470would be its most signal rebuke. This distinction between a legislative body, representing the people, the primary power in the state, was directly in the mind of the chancellor who decided Barker v. The People, 20 Johns. 457, a case strongly relied on by the defence. He said : “ The disqualification pronounced by the court would then fail to produce exclusion from the legislature ; but it would, nevertheless, be effectual to exclude from all other public stations. Its effect in respect to all other public employment must be decided by the tribunals of justice.” If the councils of a city, no matter how large, may defy the law under which they exist and exercise >all their powers, so may the councils of the most humble borough, and thus the law of the land be violated with impunity, unless the courts of justice have power to curb their deviations and correct their misdeeds. The right of this court to issue the writ of quo warranto to determine questions of usurpation and forfeiture of office in a public corporation cannot be questioned. Its powers, fully established by the General Assembly, 22d May 1722, 1 Smith’s Laws 181, and repeated in the Act of 16th June 1836, Purd. 928, pi. 19, have been recognised in numerous decisions, to some of which I may refer : Commonwealth v. Arrison, 15 S. & R. 130; Commonwealth v. McCloskey, 2 Rawle 379-81; Commonwealth v. Jones, 2 Jones 365; Cleaver v. Com., 10 Casey 283; Lamb v. Lynd, 8 Wright 366; Updegraff v. Orans, 11 Wright 103; Kerr v. Trego, Id. 292. The second section of the Act of 14th June 1846, Purd. 832, pl. 2, confers upon the Courts of Common Pleas the power to issue writs of quo warranto concurrently with the Supreme Court in the cases enumerated, within which the present clearly falls. The cases cited by the defence against the exercise of the power by quo warranto, to remove one who has forfeited an office, have little weight. The Commonwealth ex rel. Duffield v. Laughlin, was an application for a mandamus to restore Duffield to a seat in council, after the common council had removed him for cause. The council had judged and determined the case, and this court refused to rejudge it, because it fell within the power of the council to determine the disqualification. This is no authority against the power of the court to remove one who has forfeited his seat by a violation of law, which the council has neglected or refused to redress. The Commonwealth v. Barger was the case of a motion for a quo warranto founded on the provision of the city charter that “ no member of the state legislature shall be eligible as a member of councils.” Says the opinion: “ This law is express that one who is a member of the legislature cannot be elected to council; but does not say that a councilman, on becoming a member of the legislature, loses his seat in council.” The latter question the court declined to decide and refused the motion. It is evident that the mind from which the opinion emanated [471]*471was laboring under the impressions produced in writing the opinion in Duffield’s Case, which is referred to, but which has no possible reference to such a case as that now before us.
The question as to the quo warranto evidently received but little consideration. As to the English cases of King v. Heaven, 2 Term Rep. 772, and King v. Ponsonby, 1 Vesey, Jr. 1, all that need be said is that they are inconsistent in the application now made of them, with the practice in this state, as shown by the authorities already cited. The quo warranto is a great prerogative writ, and may be refused if demanded for light and trivial causes. Hence, in England, in questions of mere privilege, where its loss proceeds from innocent acts, as removal out of the corporation limits, the court may and does let the corporation first declare the amotion. But when a forfeiture of office occurs by an illegal act, the violation of law stands on a different footing. In such cases in this state the power of the court will not be invoked in vain by the law officer of the government, the attorney-general, whose duty it is to vindicate the broken law.
It now remains to inquire into the case before us, and to see whether there is anything in the city charter which excludes the exercise of the power of the courts. Nicholas Shane became a city councilman in January 1870, for the term of two years. William S. Allen and Henry Huhn became councilmen in January 1871, for two years. On the 16th of December 1869, these gentlemen became sureties in the official bond of Joseph F. Marcer, city treasurer. By the Act of 31st March 1860, section 66, Purd. 229, pi. 74, it is made unlawful for any councilman of any corporation or municipality to be the surety of any treasurer of the corporation, and any person violating this provision “ shall forfeit his membership in such corporation, municipality or institution and his office or appointment thereunder, and shall be guilty of misdemeanor, and on conviction thereof be sentenced to pay a fine not exceeding five hundred dollars.” The defendants fall literally within the terms of the law: — It shall not be lawful for a councilman to be the surety of the treasurer. He cannot, at one and the same time, be both. While the bond lasts the relation of principal and surety continues, and in becoming a councilman the unlawful relation begins. He is then surety and councilman at the same time, and as a consequence the law forfeits the office. It is the purpose of the law to cut off all opportunities for the councilman to aid his principal in the bond, either by doing or forbearing to do that which duty would require, yet which self-interest might forbid. The demurrer admits the fact charged in the suggestion, and, as a consequence, the forfeiture; but denies the power of the writ of quo warranto to remove the offender from the office he has forfeited. Forfeiture arises in the unlawful relation, not upon the conviction for the misdemeanor. The consequence of con[472]*472viction is the fine, hut this does not enforce the forfeiture. If conviction of the misdemeanor be necessary to declare the forfeiture, it follows that neither court nor council can purge the body of the unlawful relationship. The position would pluck up by the roots the power claimed for the council to judge of the qualification of its members. Still less forcible is the argument that conviction must precede the quo warranto. It issues to inquire not into the misdemeanor, but into the rights of the member to continue in office. The proceeding itself provides for the trial of disputed facts. By the ninth section of the act, Purd. 833, pl. 9, the defendant may traverse all or any of the material facts contained in the suggestion as in other cases, and the person at whose instance the writ issues shall reply, take issue or demur, and thereupon issue shall be joined in the cause as in other causes. Quo "warranto is a proceeding at law, and the fact which determines the defendant’s right to his office, or the loss of it, is triable by a jury, as in other legal proceedings, so that conviction is entirely unnecessary, and not essential to give jurisdiction to the court. The error in applying to such a case the doctrine of Huber v. Reily, 3 P. F. Smith 112, is in failing to remember that quo warranto is a legal proceeding before a competent court of law to determine the forfeiture, where the party has his day in court, and a due jury trial according to the course of the common law.
What obstacle, then, does the city charter oppose to the authority of the court ? It is said that councils have power in like manner as each branch of the legislature to judge and determine the qualification of their members. Granting that, it does not follow that the authority of the court is taken away to inquire-into a forfeiture, which does not take place until the member has been admitted to his seat. It is only then it becomes necessary to enforce the law by giving judgment of ouster. If councils had not admitted the member to his seat there would have been no violation of law, and consequently no forfeiture. Conceding that the power to inquire into the qualification of a member implies a power to declare his disqualification, the omission of the council to make the inquiry is not a bar to the legal proceedings to enforce a salutary law. The offence, beginning only when the member unites in himself the double relation of councilman and surety, is continuing in its nature so long as he continues to be surety and councilman at the same time. If then the council suffer the oath to be administered sub silentio, or fail afterwards to inquire into and declare the disqualification, how can it be argued that the forfeiture which took effect eo instanti when the member was sworn in, and continues while the prohibited relation continues, cannot be judicially .ascertained and declared? This would set the council above the court, for it is the court which commands the inquiry. The error is in confounding disqualification [473]*473with forfeiture, so far as to suppose they are equivalent expressions. The fact that a man is surety for a corporation officer is a cause of disqualification to take the seat, but when the seat is taken it becomes a cause of forfeiture. As a disqualification the councils may refuse the seat, and even after he has taken it they may remove him by reason of continuing disqualification. But when actual forfeiture takes place by the union of the relations of surety and councilman, if the council fail to inquire into what they may consider the continuing disqualification, what clause of the charter or what principle of law robs the court of its'necessary jurisdiction to inquire into the violation of the law, and oust the sitting member from a seat which he no longer rightfully holds?The whole argument' against the power of the court is in effect to declare the councils superior to the law. But the law which declares the forfeiture is the true superior, and no omission or device of councils can retain a member in his seat who has forfeited it by his illegal act. The demand of the law cannot be set aside by the non-action or wrong action of a body wholly subordinate to it.
The argument founded on the 45th section of the Consolidation Act is even less conclusive. The power of the common council to impeach and of the select council to try the impeachment for misdemeanor in office, and thereupon to remove ‘‘ officers elected by the qualified voters,” is not incompatible with the exercise of the judicial power to oust an usurping officer, or one holding over unlawfully. It is not a specific proceeding for the case before us, and does not fall within the Act of 21st March 1806, Purd. 41, requiring when a remedy is provided or duty enjoined by any act, the directions of the act shall be strictly pursued. Whatever may be the effect of the 45th section in a case of forfeiture, in its application to officers elected under the charter by the qualified voters, to whom it more strictly applies, and as to which we give no opinion, the argument is contradictory which assumes for council the exclusive power to try the disqualification of its own members, and yet insists on impeachment as the only remedy under the 45th section. It would be a new phase of the case to find the common council calling on the select to try its members. Upon the whole casé we are of opinion that the court below erred in giving judgment for the defendants on the demurrer.
The judgment is therefore reversed, and the court do now adjudge and determine that the said William S. Allen and Henry Huhn have forfeited their offices as members of the common council of the city of Philadelphia, by reason of the matters suggested to us by the attorney-general of this Commonwealth, and by them admitted in their demurrer; and do now consider and adjudge that they and each of them be [474]*474ousted, and altogether excluded from their offices as councilmen as aforesaid, arid that they and each of them pay the costs of this proceeding; and we do order and adjudge that Nicholas Shane, whose term of office hath expired, shall also pay the costs ; and it is ordered that a certified copy of this judgment be served by the high sheriff of this county upon each of said defendants, William S. Allen and Henry Huhn, forthwith, and a certified copy of the decree also delivered by him to the clerk of the said common council, of all which the said sheriff is required to make immediate return.