The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-02-17


pIWer OF the sovereign over it as such, the acjopt
In Consistency with these views for which have
forborne to cite cases. which might, however, be
neaped mp d nsSsd sso smph 1 Ss een aG
unconstitutional? IL provides merely that one class
OF the functions Of the municpanty shall De admi-
been used heretofore. The head ana
front of its OFFENDING hath this extent-no
more. 1t is a change in internal organization. It
provides separate body OF citizens for the admins
tration of The trusts vested In the city. It makes
that body permanent one-holdlng their office
during good behavior. IL imposes all the duties de-
yolved on the corporation itself trustee. 1t per-
yerts no one OF the trusts it does wrong to none OF
the benefciaries. We have nothing to do with the
wisdom of the measure.with the policy OF
having such board ,S dIssoeiated c,a from the
mode OF It's selection. Those are questions exclu-
sively for the Legislature. No one, think, can
rty to vest the entire management and centrol OF all
municipal affairs in JUST snch body as that consti-
they can do the less. They could make similar
provision for any other department OF the
nf nobce or higSyaYs of seweraSe Of ceansl
ing. They have often done so. The departments
OF the prison. of health of the poor, and OF the pub
lie schools have been placed in the hands Of bodies
Of men constituted and appointed just as Is 'The
Board of Directors OF City Trusts" aud no has
ever thought OF questioning the constltutonqty OF
these several acts OF the Legislature For if the
legislature acting for the State resume all the
franchises OF the municipality into its own hands,
which is conceded PREMISE it can certainy resume
any part. 0DlTe Dldjus continet in SC minus.
IL is said, however, that to some OF the tracts
under the will OF stephen Girard, there was con-
tract which the Legislature cannot coDstltutonally
impair. II this was So it would be no valid ground
for declaring the act void as to all the other trusts
But there is no such contract impaired by this act.
Mr.. Girard left three hundred thousand dollars to
the Commonwealth TO be applied TO the pur-
poses OF internal navigation on the condition
that certain laws should be passed as to Delaware
avenue, Water street, and wooden or brick-paved
buildings The money was accepted and the laws
were passed. They stand unchanged and unrepealed
on the statute oO9E & NO stepao9 On t or m9dnSSon mo
be pointed out. 1t is contract, II contract
at all, completely executed and fulfilled on both
sides.
1t remains to consider one more ground OF objec-
tion to this act II is seriously and earnestly con-
tended that it is IN cOntravention OF the eleventh
section of the ninth article of the Constitution,
which declares chat all courts shall be open, and
every nan, for an Injury done him in his lands,
goods person, or reputation shall have remedy by
the due course OF law, and right and justice admin
istered without sale denial, or delay" 1t is sup
posed, II / understand the argument Alright, that
because the Judges Of this Court, and OF the Dis
trct Court and the Court OF Common Pleas of
appointing the Directors OF the City Trusts, Of dis
placing thum II unfathfu and Of filling vacancies
they are thereby rendered incompetent to decide
any controversies which may arise out OF the man
agement OF the Trusts by them. 1t is said they
thereby made judges in their own cause Com
lature to make a man Judge in a. case
in which &c., he Is party litgant, it ,, is no, not
AS was well SAID in the argument, this very
proceeding is practical refutation OF the idea
that this Court or any other court is not open
to these plaintiffs, or anybody else who may have
Just cause OF action at law or In equity against this
Ss BGarn OF o sb S can any one 9Oaos Inat
linline, and bill filed against the Board of Appoint
ment itself to enjoin 1t from proceeding to obey the
trustee OF charity may from delicacy decline to
act in a case in which he is party as such. but
there is moral legal reason why he should not.
If it is not necessary, il is his duty to do So have
no doubt 1t has been often DONE but will mention
one instance within my own experience.
The city of Philadelphia in 1859 filed claim for
taxes against the building occupied by the American
Philosophical Society, on independence. Square,
under grant from the Commonw ealth, and issued
sere acas thereon in the District Court for the city
and county OF Philadelphia, and 1t was necessary
that the Court should decide upon the liability OF the
society to pay those taxes. My brother Hare and
myself were both members OF the society,
and would gladly have excused ourselves from
taking any part in the decision. But it was
impossible. Without one OF us at least there
could have been court. We heard and decided
the case in favor OF the society," and that Judgment
was afirmed by this Court City OF Philadelphia
| The American Philosophical Society Wright, o.
The true rule unquestlonably is that whenever it be-
! comes necessary for Judge to sit even where he
has an interest when no provision is made for call
| ing another in or when no one else can take his
place. it Is his duty to hear and decide, however dis
! require it. 2 Rail-, Abr. SO.
Drnes VS.. Grand Junction Railroad House of
Lords Cases, 759. The Act OF Assembly OF April H.
1884, section 81 pamphlet 2, 239, makes provision
| for special courts in four cases spsched:-When q
PRESIDENT Judge Is personally In the Court at any
| case depending; when the title OF either party is
| derived from or through risk, or when he holds
under the same ttle when any near relation OF the
President shall be party or Interested; or
| where he has been an attorney or counsel for
either party in the case, or any other case touching
the same subject matter. And by the eighth section
OF the act of April 1s43 pamphlet ?, 1881, the pro-
visions OF the act OF 1884, above referred TO,
tended TO the judges OF the Orphans Court, Regis
ters Court, Quarter Sessions or Oyer and Terminer
1t will be observed that the case OF Judge being
! nominal party is not specified as a disqualification
| unless he is personally Interested
| This Court has held that an objection TO compe
tency, under the act for the establishment Of special
courts, must be addressed to the discretion OF the
Judge himself,ehd his decision is not renewable on
a writ OF error. Darlington vs. Bank OF Washington
Ia 3. and r., 405; Ellmaker Buckley, 16 S. and r.
~; Philadelphia Library Company vs.. Myham,
| Wharton ~. 'This," said Gibson, G. j., sis con
| formable to the principle OF the common law
| which eXeDpts Judge from challenge
That Judge is one of the trustees of charity
| is no disqualification, much less when he merely
| appoints such trustees. No one ever heard before
| that he was disqualified to act in the case OF
| trustee OF his own appointment. In the case dl
recty before us there is nothing in the position o
the judges members of the Board OF Appointment
which could possibly influence their opinion, or pre-
veut fair and impartial consideration and decision
of any case which might grow out of their proceed
ings.
| OF the appellants.