Commonwealth ex rel. against The Mayor of Lancaster, 5 Watts 152

The opinion of the Court was delivered by Gibson, C. J. An action to establish the right could not be maintained against the corporation, because performance of a corporate function is not a duty to be demanded by action; and unless recourse might be had to the functionary in the first instance, the relator might have a case for redress without a remedy. This leads us directly to the resolution. The eleventh joint rule to regulate the business of the councils, by which the validity of the particular act is drawn into question, might possibly have been framed with more precision.

It bears that “ all matters within the sphere of the authority of councils, which shall affect the citizens at large, and with which they ought necessarily to be acquainted, must be enacted by ordinance; but matters merely respecting the duties of the city officers, or other objects of a particular nature, may be authorised by resolution.” Granting that this resolution affects the citizens at large; that it is a matter with which they ought to be acquainted; and that it does not respect the duties of the city officers, or any object of a particular nature, though the last might possibly be made a subject of dispute, is it void for a departure from the prescribed form of enactment ?

Had the form been prescribed in the act of incorporation, the affirmative might have been assumed without risk of contradiction; but a power to repeal is an incident of the power to enact. Eodem modo quo oritur, eodum modo dissolvitur; and hence we see that a body competent to make a by-law, is also competent to repeal it. Wilcock,

part 1, tit. 237. And this, holds though there be a clause expressly in derogation of the right to repeal. Non impedit clausula derogatoria, quo minus ab eadem potestate res dissolvitur, a quibus constituuntur; according to which, all attempts to restrain the repealing power by anticipation, are vain. It would, therefore, be immaterial had the rule been declared irrevocable by less than two-thirds. There is, however, no such declaration.

It is urged that whether a majority had power to repeal it or not, it had in fact not been repealed; and that while it remained a rule, it was as obligatory as if it were irrevocable. There was, indeed, no formal repeal of it; but was it not dispensed with by making the resolution

an act in derogation of it ? It was virtually repealed for the occasion when its authority was disregarded by those who had power to control it; and the act of breaking through it, if not an abrogation, was at least a suspension of it. If the preceding councils had not ability to bind their successors indissolubly, neither had they ability to put shackles on them that might be cast off but in a particular way. Lord Bacon ridicules the notion of the civilians, that a derogatory clause is good to disable a subsequent act, unless it be itself repealed. (Maxims, Regula XIX).

Adopted by a corporation, these rules of legislation resemble rules of conduct prescribed by an individual for his own government. They are rules of internal action, with which those who are to deal with its external results, have no concern. None but members of the body have to do with the structure of its machinery, whether its operations relate to reference, commitment, adjournment, or the like; or, where that matter is not regulated by the charter, to the form of expressing the corporate will. But the twenty-first

section of the act of incorporation, declares “that no alderman of the said city, nor any person holding an office of trust or profit under the laws of the commonwealth, or the ordinances of the select and common councils, the emolument whereof is paid out of the treasury of the said city, shall be competent to serve as a member of the select or common council.” The object of this was evidently to protect the treasury from the cupidity of its guardians, by putting them beyond .the reach of temptation.

Its letter may not extend to the prohibition of salary for their services or jobs for their emolument, but its spirit certainly does. Services in the councils of our civic corporations, have ever been gratuitous; and this was known to the legislature at the date of this act of incorporation, which, as well as the act for the incorporation of Pitts-burg, is nearly a transcript from the- act to incorporate Philadelphia, where compensation has not been dreamt of. By the

section under consideration, it is not expressly prohibited; but as power to provide it for the mayor is expre'ssly given, and as it is expressly provided for the recorder, jurors and clerk, in the charter itself, we must intend it was meant to be withheld from the members of councils according to the maxim, expressio unius est exchtsio alterius, especially as the purpose of the legislature seems to have been to put an impassable line of separation betwixt tbe capacity to give and the capacity to receive.

Now the compensation sought was earned by the relators, if at all, in the character of common councilmen; for in no other could they have been members of the committee. But take it they acted as individuals employed in a particular service, and the result must be no better for them; for by no device can the character of a councilman, and that of a paid servant of the councils be legitimately united in the same person; and though we cannot prevent it in the first instance, we can prevent the accomplishment of its purpose by withholding our assistance from it.

We think the present not an occasion to exert the extraordinary powers of the court. Rules discharged.