City of Philadelphia v. Given

The opinion of the court was delivered, by Sharswood, J. — We are not required in this case to decide the question whether the incumbent of an elective office, having the certificate of the return judges that he was duly elected, but whose election is contested and who eventually is ousted by the adverse decision of the proper tribunal, is de jure as well as de facto the officer pending the contest, and entitled therefore to the legal emoluments of the office. Nothing, however, is better settled than unless he has duly qualified according to law, he is not so entitled: Riddle v. Bedford, 7 S. & R. 389; Keyser v. McKissam, 2 Rawle 139; Commonwealth v. Slifer, 1 Casey 23. The plaintiff below, John Given, who was duly returned by the judges of the general election, on the second Tuesday of October 1865, as elected city commissioner of Philadelphia for the term of three years from the 1st day of January 1866, never did in fact qualify according to law. By the 4th section of the Act of Assembly of April 21st 1858, entitled “A further supplement to the act incorporating the city of Philadelphia,” it was enacted “that the city commissioners of the said city hereafter chosen, shall, before entering upon the duties of their office, give bond in such amount and with such sureties as shall be approved by councils, for the faithful performance of the duties of the said office.” It is agreed that Mr. Given never did execute and deliver to the city such a bond. But it is urged that he did all that he could do, and was unlawfully prevented from completing his qualification. Conceding, for the sake of argument, that prevention would be equivalent to performance, do the agreed facts make out such a case ? He submitted the names' of his proposed sureties to the councils, who passed a resolution approving them, and directing the city solicitor to draw the usual bond; but the mayor returned the resolution without his signature, and assigned as his reason “ that the right to said office was then the subject of judicial inquiry.” This, it is contended, was an unlawful act on the part of the mayor; that he had no right to refuse to approve the resolution* on that ground. If it be assumed that the resolution required the signature of the mayor, it is evident that the sureties were not in fact approved by the proper authorities. It does not appear that the mayor ever considered and determined that question; on the contrary he refused to consider it. If he had no right to withhold his consent for the reason he gave, he might and could have been compelled by mandamus to approve or disapprove. We have issued such a mandamus to compel the councils to proceed in a similar case, and by equal reason could such a remedy be invoked against the mayor. But whatever may have been the practice, we are very clearly of the opinion that under the Act of 1858 it was [139] not necessary that the approbation of the sureties should be by ordinance or joint resolution requiring to be signed by the mayor, or if he should veto it, to be passed by a vote of two-thirds of each council. A simple vote of approbation by each body entirely fulfilled the requirements of the statute. It was not at all essential that the bond should be drawn by the city solicitor. Mr. Given ought then to have had an official bond drawn in the usual and proper form, and executed by himself, and the sureties who had been approved, and filed with the city solicitor, who is the officer to whom is intrusted the custody of all such documents. This Mr. Given did not do, and without it he had done nothing. The city was as much without the necessary security for the faithful performance by him of the duties of the office as if he had never taken the first step. Had he become a defaulter, it cannot be pretended, and has not been, that his proposed sureties could have been held to any liability, even if it could be averred and proved as a fact that they had consented to become sureties. They had never executed the bond. Won constat indeed that they ever would have executed it. They might have withdrawn their consent at the last moment. We cannot presume as facts, neither of which are in the case stated, that they did agree and for a valuable consideration, so that it is unnecessary to inquire whether the city could have enforced such an agreement. The main object of the Act of Assembly, which was that the city should be secure from loss by an unfaithful city commissioner, would be defeated if we were to hold in such a case as this that the officer was a cle jure incumbent, and entitled to the rights and remedies of such. We are compelled, then, to apply to this case the principle heretofore settled, and to say in reference to Mr. Given what was said by the court in Commonwealth v. Slifer, 1 Casey 23, to General Bowman, “The performance.of the duties of the officer before giving the security was prohibited by law. The law must therefore refuse to aid him in compelling payment for services thus rendered against its directions.” Judgment reversed, and non-judgment for the defendants on the ease stated.