The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-01-31
LEGAL 1rzTEznxGEwCa.



riON--sPECTAL INJUNCTION DISSOLVED, AND
PRELIMINARY INJUNCTION REFUSED.
This morning Justice Agnew, sitting at Nisi
Prius, delivered the following opinion.-
Samuel H. Snyder Us. William II. Smith % al,
Committee of Select Council.
Under the thirty-nfth section OF the act OF FeOru-
ory 2 lst4, the city Councils have exclusive and
own members. Their judgments are subject 20 no
appeal lt is clear that, in other tribunals 20
which an exclusive jurisdiction ia committed, they
must determine the question of jurisdiction for
themselves. every presumption, therefore, IS In
favor OF their rghtui jurisdiction when they have
once assumed IT,. IL would be destructive OF the
public nter So and Of all correct principles of action
were II TO be held that court OF equity could arrest
"a hmfne the proceedings of a quasi political body
having power TO determine it's own jurisdiction, for
every seeming departure in the exercise OF ITS
powers.
Admitting the power of the Court to intervene to
prevent Migrant usurpatiOn OF undeegated authO-
rity me case should be clear and papabe II is not
denied that the subject matter 10 within the powers
or the Select Council, or that the commit
tee has been duly constituted. what
restrain the commltteeg Simply that, in the exer-
else Of its undenaDle right OF Judgment the Council
has decided that the petition To contest the seat OF
the sitting member was presented within ten days
The Councils were organized on the 81 NJ January,
and the petition was presented and received on the
13th clearly within ten days. unless we include the
day of the organization in the count.
The case hinges on the old dispute, whether the
time is to he counted from the act or from the day OF
the act-a controversy which, in England, Lord
Mansfield himself could not settle upon conflict OF
and which, in this State, has been q judicial game
Of battedOre and shuttlecock down to the case OF
Cromeen vs. Brink, Casey, 522. In that ease
Judge Porter at last settled the rule OF comput ltOn
to be that stated III GOmter's Estate, Pennsylva-
MIA, 2O0:-"Ihat whenever, by rule Of court or an
Act Of Assembly, given number OF days are allowed
TO de- an act or II is said act may be done Within
given umher OF days, the day In which the rule
Is taken or the decision made Is excluded" This
accords with true principle, that where right
Is to be saved, or remedy is given the Legs-
ature il not to be presumed to curtal its own Tft
OF mower for a beneficial in the nbgnnrp n
clear and well-detned intent The provision here
Il that the complaint OF an undue election shall not
be acted on by the Council "unless presented
within ten days after the organization OF Councils
Organization, the act from which the computation
to be made, may not be complete until the lasthour
OF the day. That day is imperfect, and may be cur
tailed by disputes in the organization until but
preserved and the remedy to be enforced, that day
should not he counted The contest Is the only
means given to contest an alleged wrong. 1t IL a
case where right Is to be preserved and remedy
enforced. 1t is the right OF the people that their
true representative shall have his seat and the
test is their only remedy to unseat one who has by
fraud or false return usurped the place OF him
chosen by them to fill IT, What is the contest but
oflicers of the election 70 the Connect to datermne
their right Of representation Therefore as In ap-
peas from Justices arbrators and inferior courts,
the filing OF the award, or The Judgment
the day Of the act must be excluded, and the
count OF time begins upon the next day. The rule
laid down in Gomiters Estate and Cromelien vs.
Brink has been reaflrmed in Marks Est Russell,
Wright, 5I2 ana is e0lpnatlC because IL reversed
the Judgment in the lower court founded on the
opposite Interpretation.
Put were the rule less clear I would refuse this
special Injunction, and leave the party to the 6nal
result OF his bill Nothing is more to be reprobated
than an interference with the lawful powers OF
body such as the Councils OF city like Philadelphia,
representing constituency of almost million OF
people, An injunction which is not OF right, but OF
grace should not be granted except In clear case,
and to arrest papable abuse of authority resulting
in some irrenarabe injury. 1t is said the present
Chief Justice, p n. Smt III, ''a high exercise OF
power, and should be cautiously eXercised-an
appeal to the extraordinary power OF the court, and
the plantir is always bound to make ont case
showing clear necessity for it-a necessity in the
light Of inability to be compensated for the wrong
Which would ensue II not arrested"
The special injunction is dissolved and prelimi-
nary injunction Is refused
Supreme Court In Bnnc-Chi Justice Thomp-
son md Judges kend, Agnew. sharswood,
The following judgments were given this
morning.
Kountz VS.. Kennedy. Error to the District
Court of Allegheny comfy. Judgment af-
frmed. Opinion by Thompson, G. j., Shars-
wood, j., dissenting.
Read, J.:-
Kleckner VS.. Strk, Freed & Co., ct al. Appeal
from the Common Pleas of Snyder county.
Motion refused and rule discharged
Appeal of Mary Ann Brooke from the decree
of the Common Pleas of Montgomery county.
Decree affirmed and appeal dismissed ut costs of
the appellant.
Reagan ct al VS.. Lewellying. Error to the
affirmed.
Rieff ct al VS.. Rief. Error to the Common
| Pleas of Montgomery co. Judgment affirmed.
Agnew, il
John Neff ct al. VS.. Samuel Flower. Error to
| the Common Pleas of Greene county. Judg-
| ment reversed and centre de nOuo awarded.
| Charles H. Schreiner vs. Samuel p. Cummins.
| Error to the Common Pleas of Beaver county.
| Judgment affirmed.
| Zachariah Wainwright VS.. Michael McCul-
| lough. Error to the District Court Of Allegheny
| county. Judgment affirmed
| Duff & Ewing vs. Hoffman ct al. Error tc
the Common Pleas of Allegheny county. Judg
| ment affirmed.
| Sharswood, J.:-
| Russell VS.. The First Presbyterian Church o
| Pottsville. Error TO the Common Pleas o
| Schuylkln county. Judgment reversed, and
| centre de nOcO awarded.
Hannum vs.. The Borough of West Chester
| Error to the Common Pleas of Chester county
| Judgment reversed and procedendO awarded.
The case of the City of Philadelphia VS.. Fo1
| ct al, which involves the constitutionality o.
the City Trust act, was before the Court this
morning, Mr.. Olmstead opening the discussion
for the plaintiffs. This act took the manage
ment of the Girard estate from the city, whS
were by the will constituted the trustees Of it
vested in board of trustees, consisting of tht
judges of the Supreme Court and the loca
courts of this county, who have the power o
appointing directors. The city complains tina
in passing this act the Legislature oyersteppet
its constitutional authority, and assumed judi
| cial power, which alone can discharge executor
and substitute new ones and upon this principl
| point the case is discussed
| Court of Quarter Sessions.
Charles Williams Walsh Everhart, who wa
Patrick Devinney in the City Bank, and O
ataalinp thirty wards of satin from the store n