concurring and dissenting opinion of Roberts, J.
How later courts described this case
- concurring and dissenting opinion of Roberts, J.
- “That the [Philadelphia Home Rule] Charter constitute[s] legislation no less than does a statute of the legislature to like end is too plain for even cavil.”
- Jones, former C.J., then Jones, J., concurring
Written by the judges who cited it.
The opinion
Concurring Opinion by
Mr. Justice Cohen:
I concur in the judgment reached by the majority but wish to add, in view of Justice Roberts’ concurring opinion, that the very court that created the Allen rule refused to apply the rule in Commonwealth ex rel. Needles v. Henszey, 81* Pa. 101 (1873), holding that an “undue election” of a member is to be determined by the councils and not by quo warranto. It said: “The defect if one, was known at and before the election, and an immediate trial might then have been had. The Commonwealth v. Allen et al., which was a case of forfeiture, has no application to the case before us. This was the specific remedy and quo warranto did not lie.”
If I were to find fault with or criticize the Allen rule, it would be because the court exercised its jurisdiction in a forfeiture case where the charter similarly provided “That council shall' be the' sole judge of the qualifications of its members.”