We think they have. All bodies, except the supreme legislature, are under law, and therefore, for all transgressions of law are subject to the authority of the judicial power established by the constitution. The corporation itself is subject to this authority, so far as its acts are directed by law, though it is not, and can not be so, in so far as it is itself a law making power; in so far as its judgment and direction are uncontrolled by the law of the land, it is free from the control of the courts, but in so far as its acts are directed by law, it is subject to the judicial authority; much more then are its officers subject to this authority, and especially those that pretend to act as its officers, without right, and as there cannot be two common councils, one of these bodies must be a mere pretender to the right to act as such. May the wrongful party be restrained from acting by the means of the equitable remedy of injunction? We think it may; this remedy extends to all acts that are contrary to law, and prejudicial to the interests of the community, and for which there is no adequate remedy at law; and we can hardly imagine any act that more clearly falls within this description than one that casts so deep a shade of doubt and confusion on the public affairs of a city as this does. In such a case no remedy is adequate that is not prompt and speedy as this one. If a private partnership or corporation were to fall into similar confusion affecting all its members, and all its creditors, we can think of no better remedy than this for staying the confusion that would be caused by two opposite parties pretending to act as the society. It is the very remedy usually adopted when churches di

vide into parties, and we have applied it in three such cases in the last year; therein we decided directly on rights of property, because that became the aim of dispute; here we must decide on the right to public functions, because that is here the purpose of the dispute. The main question in all such cases is regularity of organization, and the right to functions and property is a mere consequence of this. May one of the conflicting bodies, or the members of it, maintain this action against the other? We think they may; this could not be doubted in relation to private corporations and partnerships; but it is argued that in relation to public corporations the attorney general alone can file such a bill; we do not think so; it is a right for those to whom public functions are entrusted, to see that they are not usurped by others. Either of these bodies has the right to demand of the courts that it, and all the interests of the public alleged to be committed to it, shall be protected against the usurpation of the other. We decided a similar principle in Mott vs. The Railroad, 30 Penn., St. R., 9, and we need say no more about it This case is, therefore, regularly before us, and we proceed to the consideration of it, premising that there is no material fact in dispute, and that we have no authority to decide directly upon the validity of the election of any one of the claiming members."

now.

§ 516. Inasmuch as Senators of the United States are chosen in each State by the legislature thereof, it is manifest that the Senate may sometimes find it necessary to inquire and determine whether a body claiming to be the legislature of a State is in fact

such. If two bodies have organized, each claiming to be the legislature, and each has elected a Senator, of course the Senate, in order to decide between them, must inquire and determine which was the legislature. Such a case arose in Sykes vs. Spencer, in the Senate of the United States, (forty-third Congress, first session, report number two hundred and ninety-one.) And in determining that case the Senate of the United States laid down a rule which may at first appear to be, but which is not in reality, in conflict with the doctrine we have been considering in the preceding sections of this chapter. The contest between the two legislatures in this case depended upon this: In one body were eight or nine members who had received regular certificates of election, but who were conceded not to have been elected, while in the other was found an equal number of persons duly elected, but without certificates of election. To make a quorum of the former body, it was necessary to count the persons holding certificates, but not elected, and to make a quorum of the latter, it was necessary to count the members duly elected, but without certificates. The former body was called the State house legislature, while the latter was called the court house legislature. The Senate held that the body having a quorum of members in fact duly elected, should be regarded as the legislature of the State, for the purpose of electing the Senator in Congress, and the grounds of this decision are thus stated in the committees' report, submitted by Senator Carpenter of Wisconsin:

The matter, then, comes to this: The State house legislature was the legislature in form, and

the court house legislature was the legislature in fact. While these two pretended legislatures were in existence, each claiming to possess the legislative power of the State, Spencer was elected to the Senate by the court house legislature, and Sykes was elected by the State house legislature. Spencer was first elected, and on the day of his election the court house legislature was recognized by the governor as the legal legislature of the State. Therefore, in determining as to the right of Spencer or Sykes to this seat, the Senate is compelled to choose between the body in fact elected, organized, acting, and recognized by the executive department as the legislature, and another body, organized in form, but without the election and without a recognition on the part of the executive of the State at the time they pretended to elect Sykes. When we consider that all the forms prescribed by law for canvassing and certifying an election, and for the organization of the two houses, are designed to secure to the persons actually elected the right to act in the offices to which in fact they have been elected, it would be sacrificing the end to the means, were the Senate to adhere to the mere form, and thus defeat the end which the forms were intended to secure.

The persons in the two bodies claiming to be the Senate and House of Representatives who voted for Spencer, constituted a quorum of both Houses of the members actually elected; the persons in the State House legislature who voted for Sykes did not constitute a quorum of the two Houses duly elected, but a quorum of persons certified to have been elected to the two Houses. Were the Senate to

hold Sykes' election to be valid, it would follow that erroneous certificates, delivered to men conceded not to be elected, had enabled persons who in fact ought not to vote for a Senator to elect a Senator to misrepresent the State for six years. On the other hand, if we treat the court house legislature as the legal legislature of the State, it is conceded that we give effect to the will of the people as evidenced by the election. So that, to state the proposition in other words, we are called upon to choose between the form and the substance, the fiction and the fact; and, considering the importance of the election of a Senator, in the opinion of your committee the Senate would not be justified in overriding the will of the people, as expressed by the ballot-box, out of deference to certificates issued erroneously to persons who were not elected.

In the opinion of your committee it is not competent for the Senate to inquire as to the right of individual members to sit in a legislature which is conceded to have a quorum in both houses of legally elected members. But, undoubtedly, the Senate must always inquire whether the body which pretended to elect a Senator was the legislature of the State or not; because a Senator can only be elected by the legislature of a State. In this case, Spencer having been seated by the Senate, and being prima facie entitled to hold the seat, the Senate cannot oust him without going into an inquiry in regard to the right of the individual persons who claim to constitute the quorum in these respective bodies at the Court House and at the State House. We cannot oust Spencer from his seat without inquiring and de