CJflrn^U ICam ^rljool Eihtaty Cornell University Library KF 4886.A4B85 A collection of leading cases on the law 3 1924 019 949 860 The original of tiiis book is in tile Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019949860 J. Alfred Kay. ^Sept. 1871.J Angus Cameron. Law Publications KAY & BROTHER, Law Publishers, Booksellers & Importers, 17 and 19 South Sixth Street, Philadelphia. Acts of Assembly of Pennsylvania, 1801-1871. 71 volumes 8vo. . $250.00 Alden's Condensed Reports, Supreme Court of Pennsylvania — Dallas to Binney, inclusive. 3 vols. 8vo. 15.00 Allen's Reports, Supreme Court of Massachusetts. Vols. 9 to 14 inclusive. 6 vols per vol. 5.50 Baldwin's C. C. Reports, Eastern District of Pennsylvania and New Jersey. 8vo. . . . • 7.50 Baldwin's Constitutional Views. 8vo. 1.75 Ball & Beatty's Chancery Reports. 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Svo. . . . 63.00 Wright's Index (to his 14 volumes of Reports). Svo. . . 4.00 A COLLECTION LEADING OASES LAW OF ELECTIONS UNITED STATES NOTES AND REFERENCES TO THE LATEST AUTHORITIES. BY FREDERICK C. BRIGHTLY, AUTHOR OF THE FEDBRAL DIGEST ; THE UNITED STATES DIGEST, ETC. PHILADELPHIA: KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS. 1871. Entered iicoording to Act of Congress, in the year 1871, by FREDERICK C. BRIGHTLY, in the OfQce of the Librarian of Congress, at Washington. PHILADELPHIA: COLLINS, PKISTEB, 706 JATNK STKEKT. PREFACE. No questions have greater interest for a people pos- sessed of the right of self-government, than those arising out of the exercise of the elective franchise ; whilst other constitutional questions aft'ect classes of the community, the ones treated of in this work have reference to the vital principles of our government and come home to every citizen of the republic. The working of our sys- tem of election by ballot is, at the present time, the subject of anxious consideration by the British people and Parliament, and presents one of the nicest problems that can engage the attention of the Statesman and Poll- tician. It is, therefore, strange, but nevertheless true, that no work has yet appeared, on this side of the Atlantic, which treats exclusively of the question of popular suiFrage, though .greatly needed both by the professional man and the general reader. To supply this want, the author has been induced to make this Collection of Cases, and in the notes to present the numerous authorities that exist on this important iv Preface. subject. Many of the cases are unreported, or are extant only in Legal Periodicals or scarce Volumes of Reports, not accessible to the general student ; others are selected from the Eeports of distant States, not usually found in a lawyer's private library ; and it is hoped the work will, therefore, prove acceptable to all who desire information on this most inter6sting of all political questions. It is, of course, impossible to write a work on a subject exclusively political in its character without an expression of the Author's views upon the subject treated of; a mere collection of decided cases can be made by any one, for his own use, by a reference to the Digests of the several States; but this work has an aim and a purpose, and that is, to call public attention to what the Author sincerely believes to be the greatest vice in our political system, the delegation of discretionary powers, in political cases, to an elective Judiciary, holding by a limited tenure. He believes this to present the feature of greatest danger to the permanency of our institutions, and therefore, he has not hesitated to present his views on this subject in the plainest language that the English tongue is capable of using. He has used the reported cases to illustrate this evil characteristic of modern politics ; the difference in the character of the older de- cisions made by independent judges, and the recent ones decided since this innovation has been made upon the free principles of our ancestors, cannot fail to strike the mind of any reflecting man. If the book shall have a Preface. v tendency only to call attention to this great evil, the labor of the Author will not have been thrown away. In preparing the cases for the press, the Author has corrected numerous errors in the printed reports, and has adopted a uniformity of citation. If he has some- times been severe in his criticisms, his excuse must be, that no work on a political subject would be worth the purchase, if the Author were not perfectly free and inde- pendent in the expression of his opinions; he has done so in no hostile spirit, but with the kindest feelings towards those judges whom he has thus reviewed. Philadelphia, 1st September 1871. CONTENTS. PAGE What Questions mat be submitted to a Popular Vote 3 Rice V. Poster, 4 Harrington 419. States' Rights to regulate the Elective Franchise 27 Anderson v. Baker, 23 Maryland 531. Constitutional Rights of Electors .... 44 McCaflFerty v. Guyer, 59 Penn. St. R. 109. Registry Laws 51 Capen v. Foster, 12 Pick. 485. Federal Qualifications 65 Ex parte Mclllwee, 3 Am. Law Times 251. Disfranchisement ..."..... 69 Huber v. Reily, 53 Penn. St. R. 112. Test-oaths .83 Blair v. Ridgely, 41 Mo. 63. Naturalization 98 Commonwealth v. Lee, 1 Brewst. 273. Residence 107 Williams v. Whiting, 11 Mass. 424. Payment OP Taxes 114 Catlin ■«. Smith, 2 S. & R. 267. Validity OF A Minority Election 126 Commonwealth v. Read, 2 Ashmead 261. viii Contents. I PAGE Disqualifications for Office 134 Commonwealth v. Shaver, 3 W. & S. 338. Majority fok Disqualified Person . . . .144 Commonwealth v. Clulej', 56 Penn. St. R. 270. Proof of Qualification 152 Spragins v. Houghton, 3 Illinois 377. Liability for rejecting the Vote op a Qualified Elector 190 Jenkins v. Waldron, 11 Johns. 114. Right op Interested Parties to Vote . . . .196 Commonwealth v. McCloskey, 2 Rawle 369. Place op Voting 214 Chase v. Miller, 41 Penn. St. R. 403. Election Districts 238 McDaniels' Case, 3 Penn. L. J. 310. Place op Holding Elections . . . . . .251 Chadwick v. Melvin. Form of Tickets 258 Carpenter v. Ely, 4 Wisconsin 420. Qualification of Election Officers .... 268 Boileau's Case, 2 Pars. 503. Election Officers de facto 274 Commonwealth v. Smith, 45 Penn. St. R. 59. Privileges of Electors 277 Swift V. Chamberlain, 3 Conn. 537. Proxies 282 Brown v. Commonwealth, 4 Pitts. L. J. 668. Majorities . 286 State V. Adams, 2 Stew. 231. Duties op Return Judges or Canvassers . . . 300' State V. Steers, 44 Mo. 223. Returns 307 Hadley v. City of Albany, 33 New York 603. Contents. is PAGE Eppict op Certificate 314 Hulseman v. Rems, 41 Penn. St. R. 396. Requisites of a Petition to contest an Election . 320 Skerrett's Case, 2 Pars. 509. Amendment op Petition 33Y Kneass's Case, 2 Pars. 553. Striking out Specifications 351 Mann v. Cassidy, 1 Brewst. 11. Issue, and Recounting op Yotes 360 Xneass's Case, 2 Pars. 599. Competency op Witnesses 366 Reed v. Kneass, 2 Pars. 584. Election Papers 318 Howard v. Shields, 16 Ohio St. R. 184. Evidence in Contested Election Cases . • . 385 People V. Pease, 21 New York 45. Evidence — Rebutting Testimony 416 Reed v. Kneass. Irregularities will not vitiate the Poll . . , 423 People V. Cook, 8 New York 61. * Powers op the Courts 455 Scranton Borough Election, 1 Luzerne Leg. Obs. 12. Acquisition of Domicil 468 Allentown Election, 28 Leg. Int. 229. * Purging the Polls 480 People V. Holden, 28 Cal. 123. ^ Rejection op Polls 493 Littlefield v. Green, 1 Chicago Leg. News 330. Limitation 503 Collings's Case, 2 Luzerne Leg. Obs. 51. Division op Election District 511 Penn District Election Case. Decision at the Next Term 521 Stevenson v. Lawrence, 1 Brewst. 131. X Contents. PAGE Discontinuance 534 Mann v. Cassidy, 1 Brewst. 43. Appellate Jurisdiction 538 Gibbons v. Sheppard, 65 Penn. St. R. 20. Rehearing 558 Gibbons v. Sheppard, 2 Brewst. ll'J. Effect op Commission 573 Ewing V. Thompson, 43 Penn. St. R. 372. Failure to elect . , 582 Commonwealth v. County Commissioners, 5 Rawle 75. Compensation of Election Officers .... 590 Salter v. County of Philadelphia, 1 Phila. 255. Congressional Legislation 592 United States v. Quinn, 3 Am. Law Times 180. Fees op Office pending a Contest .... 605 Mayfleld v. Moore, 3 Chioago Leg. News 114. Influencing Elections 612 Jackson v. Walker, 5 Hill 27. Injunctions 617 Lawrence v. Knight, 1 Brewst. 67. Mandamus to elect 624 Lamb v. Lynd, 44 Penn. St. R. 336. Organization of Municipal Legislative Bodies . . 632 Kerr v. Trego, 47 Penn. St. R. 292. Ouster 646 DufHeld's Case. Quo Warranto 656, 659 Commonwealth v. Garrigues, 28 Penn. St. R. 9. Commonwealth v. Meeser, 44 Penn. St. R. 341. Term op Office 665 Lewis's Case, 29. Penn. St. R. 518. Yacancy in Office 670 Commonwealth v. Hanley, 9 Penn. St. R. 513. Contents. xi PAGE Elections to pill Vacancies 679 Foster v. Scarff, 15 Ohio St. R. 532. Election of Judges 685 Commonwealth v. Conyngham, 3 Brewst. 214. Criminal Prosecutions for Illegal Yoting . . 695 Commonwealth v. Aglar, Thach. Cr. Cas. 412. Requisites of Indictment for Illegal Voting . . 105 State V. Moore, 3 Dutcher 105. Indictments against Election Officers . . . til Commonwealth v. Miller, 2 Pars. 480. Wagers upon Elections 728 Laval V. Myers, 1 Bailey 486. Appendix 739 Cumulative Voting. TABLE OF CASES. Acker, Jansen «., 23 Wend. 480 Acorn, The, 2 Abbott TJ. S. Rep. 434 . Acton, People v., 48 Barb. 524 Adams, Case of, Cush. Elect. Cas. 891 . Adams, Ely v., 19 Johns. 313 . Adams, Root v., 1 Cong. Elect. Cas. 271 Adams, State v., 2 Stew. 231, 239 . Adams v. Wilson, 1 Cong. Elect. Cas. 373 Adams «. Wooldridge, 4 111. 2.55 Addison, United States v., 6 Wall. 291 . Aglar, Commonwealth v., Thach. Cr. Cas, Albany, City of, Hadley v., 33 N. Y. 603 Albin, Ensworth v., 46 Mo. 453 Albin, State®.,44Mo. 346 . Aldermen, Conway v., 2 Brewst. 134 Allegheny Bridge Co., Commonwealth ( Allen v. Hearn, 1 T. R. 56 Allen, Page «., 58 Penn. St. R. 338 Allen, People v., 6 Wend. 486 AUentown Election, 2^Leg. Int. 229 Almeida, United States v., Whart. Prec. Amedy, United States «., 11 Wheat. 408 Amherst, Granby v., 7 Mass. 1 Anderson v. Baker, 23 Md. 531 Anderson v. Milliken, 9 Ohio St. R. 568 Anderson, State «., Coxe 318 . Andrews v. Heme, 1 Lev. 33 . Andrews, Snyder v., 6 Barb. 48 Ankeny, Jeffries v., 11 Ohio 372 Anon., 1 Wils. 356 Anon, 1 Brewst. 158 Anon., 1 Brewst. 183 . Anon., 3 Brewst. 144 Anon., Com. Pleas, Phila., Oct. 1848 Armstrong v. Miller PAGE . 428 . 106 . 694 . 451 . 430 . 268 51, 244, 286, 383, 589, 664 . 413 . 737 . 611 412 ... . 695 307, 669 . 64 . 64 . 64 20 Penn. St. R. 185 . 146 733, 735 50, 62, 689 . 5S0 . 468 §1061 . . . .716 . 485 470, 471 27, 64, 83, 98, 193 50, 194 . 150 728, 729 . 429 50, 194 . 345 . 106 . 380 . 114 . 113 . 664 XIV Table of Cases. Arris ». Stukely, 2 Mod. 360 Ashby «. White, 3 Ld. Raym. 938 ; 1 Bro. P. C. 45 193, 379, 400. AsMeld, Case of, Gush. Elect. Gas. 583 Attorney-General v. Barstow, 4 Wis. 567 Attorney-General ». Utica Insurance Go., 3 Jolms, Augustin ». Bggleston, 13 La. An. 366 . Auld II. Walton, 13 La. An. 139 . Aurora, The, v. United States, 7 Granch 383 Ayer, Gommonwealth «., Gush. Elect. Gas. 674 Babcock, Gale «., 4 W. G. G. 199 . Bacon «. Benchley, 3 Gush. 100 Bacon v. York County, 36 Maine 490 . Bailey v. Musgrave, 3 S. & R. 319 Bailey «. Simpson, Binns's Just. 498 n. Bailey, State v., 8 Shep. 63 . . . Baird, Commonwealth «., 4 S. & R. 141 Baker, Anderson «., 33 Md. 531 Ballard, United States v., 13 Int. R. Rec. 195 Bang ■». Lauck, 5 Gold. 588 . Bank ■». Gommonwealth, 10 Penn. St. R. 448 Bank of Newburgh, Reed «., 6 Paige 337 Bank of North America «. Fitzsimons, 3 Binn. 856 Bank of Pittsburgh, Slicer v., 16 How. 571 Bankes, Rex v., 3 Burr. 1454 . Banon, Galway v., Long. & Towns. 70 . Barger, Gommonwealtll «., 30 Leg. Int. 101 Baring v. Shippen, 3 Binn. 165 Barker ». Gommonwealth, 19 Penn. St. R. 413 Barker «. People, 30 Johns. 457 Barlow, Patterson u., 60 Penn. St. R. 54 Barnett, Kennedy ■»., 64 Penn. St. R. 141 Barney «. McCreery, 1 Gong. Elect. Gas. 167 Barrett, Bushel »., Ry. & Mood. 434 Barron, Ex parte, 1 Brewst. 383 . Barstow, Attorney-General v., 4 Wis. 567 Bartlett, People «., 6 Wend. 433 . Barto «. Himrod, 8 N. Y. 483 . Barzey, Rex ®., 4 M. & S. 353 Bates, People v., 11 Mich. 363 Batturs v. Megary, 1 Brewst. 163 . 356, 334, Baxter, Gommonwealth «., 35 Penn. St. R. 363 Baylies, Turners., 1 Gong. Elect. Gas. 334 . Beal V. Ray, 17 Ind. 554 .... Beck ». McGhee, House Journ. 1856, p. 304 . PAGE . 607, 610 34, 90, 190, 191, . 367 361, 363, 803, 306 Gh. 389 . . 633 336, 453 . 64 . 16 . 727 27, 64, I . 345 . 194 . 306 839, 567 . 381 . 711 . 551 83, 98, 193 . 710 450, 581 . 539 . 285 . 546 . 549 . 584 . 569 143, 680, 663 138 551 73, 81, 138 50, 63, 125 . 270 . 51 138, 139 105, 106 261, 263, 303, 306 . 443 . 34 340, 341, 343 . 450 335, 355, 359, 501 817, 319, 668, 677 . 368 . 685 . 355 Table of Gases. XV Beekman v. Bond, 19 Wend. 444 . Bell's Case Bellas, Robins »., 4 Watts 255 Benchley, Bacon «., 2 Cush. 10.0 . Benedict, State «., 15 Minn. 199 Benjamin, Clements «., 12 Jolins. 299 Benner v. Frey, 1 Binn. 369 . Benton, Regina d., 9 Dowl. 1021 . Bemoudy, State v., 36 Mo. 279 Berry, Ingerson v., 14 Ohio St. R. 325 Bevard v. Hoffman, 18 Md- 479, 483 Biddle v. Wing, 1 Cong. Elect. Cas. 504 Binder, State v., 38 Mo. 450 . Bingham v. Cabbot, 3 Dall. 18 Binns, Commonwealth «., 17 S. & R. 219 Blackwell v. Thompson, 2 Stew. & Port. 348 Blair v. Ridgely, 41 Mo. 63 . Blake, People v., 49 Barb. 9 . Blanchard v. Stearns, 5 Met. 298 Blandford v. Gibbs, 2 Cush. 39 Blissell, Rex v., Hey wood 360 Blockley Election, 2 Pars. 534 Boal, State v., 46 ko. 528 Board of Registration, People »., 15 Mich. 156 Bodfield D. Padmore, 5 Ad. & E. 785 Boggs v. Brooks, 45 Mo. 232 . Boileau's Case, 2 Pars. 503 . Bond, Beekman «., 19 Wend. 444 Bond, State v., 38 Mo. 425 . Booth, Fry «., 19 Ohio St. R. 25 Boren v. Smith, 1 Chicago Leg. News 170 Borough of West Philadelphia,* 5 W. & 8. 288 Bourland ®. Hildreth, 26 Cal. 161 Bowen v. Hixon, 45 Mo. 340 . Bowen, Smith «., 11 Mod. 230 Bowers, Williams v.,1 Cong. Elect. Cas. 263 Boyd V. Negley, 40 Pentf. St. R. 377 ; 53 Ibid. 387 Boyett, State v., 10 Ired. 336 . Boyton «. Dodsworth, 6 T. R. 681 Braddee «..Brownfleld, 2 W. & S. 280 Bradford, Commonwealth «., 9 Met. 268 Bradley, Regina «., 3 Ellis & Ellis 634 , Breiden «. Paff, 12 S. & R. 430 Brenham, People v., 3 Cal. 477 Brent, Peyton «., 3 Cr. C. C. 424 Bridge, Rex «., 1 M. & S. 76 . PAGE 427, 432 . 368 . 508 . 194 . 677 . 428 . 339 . 341 ,. 302 '. 382 34, 193 . 113 . 133 . 533 652, 655 . 704 . 83 . 694 194, 195 . 458 . 151 . 266 150, 664 . 64 . 340 . 557 268, 328, 453 427, 432 . 64 451, 502 . 64 . 24 . 337 313, 516 . 345 . 268 . 548 . 704 . 610 . 546 411, 703, 710 . 267 . 414 . 450 . 309 147, 151 XVI Table of Cases. PAGE Brisbin, Frosts., 19 Wend. 21 470 Brooks, Boggs«., 45 Mo. 233 557 Brower v. O'Brien, 2 Ind. 423 306 Brown v. Commonwealth, 4 Pitts. L. J. 668 383 Brown «. County Commissioners, 10 Penn. St. R. 37 . . . 540 Brown v. Keene, 8 Pet. 112 188 Brown v. Leeson^ 2 H. Bl. 43 733 Brown v. O'Connell, 36 Conn. 433 694 Browii, White v., 1 Wall. Jr. 317 470 Brownfield, Braddee«., 3 W. & S. 280 546 Bruce v. Loan, 2 Cong. Elect. Gas. 482 616 Brunott v. McKee, 6 W. & S. 514 459 Buckwalter v. United States, 11 S. & R. 193 76 Buffum, Seitz v., 14 Penn. St. R. 69 554 Bull, Calder4i.,3Dall. 386, 399 87,301 Bullock, Caulfield«., 18 B. Mon. 494 193 Bunn ». Riker, 4 Johns. 426 734, 735 Burbridge, Derail B., 6 W.&S. 539 431 Burnaby, Regina v., 3 Ld. Raym. 900 717 Burrell, Commonwealth v., 7 Penn. St. R. 34 . . . . 664 Bushel V. Barrett, Ry. & Mood. 424 138, 139 Buzzell, Commonwealth v., 16 Pick. 153 438 Byers, Spackman «., 6 S. & R. 385 569 Byington v. Vandever, 3 Cong. Elect. Cas 395, 655 Byrne «. State, 12 Wis. 519 195 Cabbot, Bingham «., 3 Ball. 18 533 Cady V. Norton, 14 Pick. 336 438 Oalder v. Bull, 3 Dall. 386, 399 87, 201 Calder v. Rutherford, 3 Brod. & Bing. 303 412 Callaway, Ramsey v., 15 La. An. 464 313 Cambria County Election 256 Cambria Iron Co. ■». Tomb, 48 Penn. St. R. 388 . . . . 548 Cambridge Election, Cush. Elect. Cas. 3 489 Cambridge, Rex v., 3 Burr. 1647 394 Cameron, Lightfoot «., 3 W. Bl. 1113 279 Cameron v. Lightfoot, 2 W. Bl. 1190 . ." . . . .279 Campbell, Graham »., 3 Cal. 135 450 Campbell, McKay v., 2 Abbott U. S. Rep. 130 .. . 49, 67 Campbell, Vallandigham »., 41 Cong. Globe 2317 . . . 387 Canfleld, Scoville v., 14 Johns. 338 76 Canvassersof Kent Co., People »., 11 Mich. Ill .... 299 Capen v. Poster, 12 Pick. 485 51, 194, 195 Carman v. Reynolds, S Ellis & Bl. 301 568 Carpenter's Case, 3 Pars. 537 . 276, 334, 345, 353, 384, 449, 509 Carpenter's Case, 14 Penn. St. R. 486 . . 514, 532, 540, 544, 556 Table of Cases. xvu PAGE 358, 306, 413 . 611 . 313 143, 151 . 193 . 479 345, 474 335, 349, 351, 359, 377, 383, 414, R. 133 Carpenter v. Ely, 4 Wis. 430 . Carroll v. Liebenthaler, 19 Am. L. Reg. 448 Carson's Case, 2 Lloyd's Debates 33 Carson v. McPhetridge, 15 Ind. 337 Carter ■». Harrison, 5 Blackf. 138 . Case e. Clarke, 5 Mas. 70 Casey's Case, 1 Ash. 136 Cassidy, Mann»., IBrewst. li 334, 449, 454, 466, 467, 493, 501, 534, 550, Caster v. Wood, Bald. 389 Castle V. Reynolds, 10 Watts 53 Catlin 8. Robinson, 3 Watts 379 Catlin V. Smith, 3 S. & R. 367 Caulfleld v. Bullock, 18 B. Mon. 494 Cavers, State «., 23 Iowa 343 Cecil V. Nottingham, 13 Mod. 348 . Chadwick v. Melvin Challen, Commonwealth «., 13 Penn. St Chamberlain, Swift »., 3 Conn. 537 Chambers, Guhr «., 8 S. & R. 157 . Champney's Case, 3 Am. L. Rev. 143 Chandler, Hunter »., 45 Mo. 458 Chandler d. Main, 16 Wis. 343 Chapman's Case, 1 Senate Journ. 1844, p. 88 Chapman v. Ferguson, 3 Cong. Elect. Cas. 367 Chapman, Keller «. , 34 Cal. 635 . Chase «. Miller, 41 Penn. St. R. 403, 413, 430 473, 477, 540, 566. Chenango Mutual Insurance Co., 19 Wend. 635 Chester, Case of, Cush. Elect. Cas. 664 . Chester County Election, Journ. Ass. 341 Chester's Case, 1 Dougl. Elect. Cas. 76 . Chew's Appeal, 9 W. & S. 153 Chief Burgess, Dock «. , 7 Watts 181 Christ Church v. Pope, 8 Gray 140 Christ Church of Reading, Mcllvain «., 38 Leg. Int. 136 Christy v. Supervisors of Sacramento County, 39 Cal. 3 Church, Davis «., 1 W. & S. 340 Church Street, 54 Penn. St. R. 353 .... Churchill, State «., 15 Minn. 455 Cicott, People ?>., 16 Mich. 383 . 367, 370, 376, 377, 384, 453, 454 Cincinnati, Wilmington and Zanesville Railroad Co. ■». Commis- sioners of Clinton County, 1 Ohio St. R. 84 . . . 35, 36 Circuit Judge of Mobile, Thompson »., 9 Ala. 338 ... 306 City of Janesville, Smith «., 3 Chicago Leg. News 337 ... 36 Cityof Reading, MoersB., 31 Penn. St. R. 188 .... 36 B . 339 . 566 . 567 . 114,221 . 193 . 306 . 280 . 351, 451, 503 . 664 . 377 . 345 . 367 377, 309, 581, 611 . 337 . 335 . 450 36, 113, 314, 350, 314, 454 453 97 395 569 717 454 633 694 339 541 319 XVlll Table of Oases. PAGE City of Syracuse, Kinne «., 3 Keyes 110 536 Clancey's Case, Fortescue 308 138, 139 Claridge i). Erelyn, 5 Bam. & Aid. 81 139, 151 Clark's Case, 3 Pars. 531 336, 451, 514 Clark V. Commonwealth, 39 Penn. St. R. 139 . . . . 547 Clark, People »., 4 Cow. 95 303 Clarke, Case®., 5 Mas. 70 . . . .■ . . . .479 Clarke v. Irwin, 5 Nevada 113 678 Clarke, People 0., 11 Barb. 337 434 Cleaver, Respublica v., 4 Yeates 69 549 Clements v. Benjamin, 13 Johns. 399 ....'.. 438 Clerk of Passaic Co., State®., 1 Dutch. 354 330 Cline, Ex parte, 1 Ben. 338 441 Clinton County Election, 8 Penn. L. J. 160, 166 . 366, 336, 348, 537 Clouston, Lightly «., 1 Taunt. 114 ....... 610 Cluley, Commonwealth v., 56 Penn. St. R. 370 . . 144, 151, 664 Coaks, Regina«.,38Eng. L. &Eq. 549; 7Q. B. 406 . . .151 Cobh, State v., 3 Kansas 33 . Coe, Rex «., Hey wood 361 .... Cohoon, State «., 13 Ired. 178 ... Colt, Kings., 4 Day 139 .... Colby, O'Farrall v., 3 Minn. 180 . Colden v. Sharpe, 1 Cong. Elect. Cas. 369 CoUings's Case, 3 Luzerne Leg. Obs. 57 Collins' s Case, 3 Grant 314 ... . Collins, Commonwealth v., 8 Watts 344 Collins, Port «., 31 Wend. 109 Commissioners of Clinton County, Cincinnati, Wilmington and Zanesville Railroad Co. »., 1 Ohio St. R. 84 Commonwealth v. Aglar, Thach. Cr. Cas. 413 Commonwealth v. Allegheny Bridge Co., 30 Penn. St. Commonwealth «. Ayer, Cush. Elect. Cas. 674 Commonwealth v. Baird, 4 S..& R. 141 Commonwealth, Bank v., 10 Penn. St. R. 448 Commonwealth v. Barger, 30 Leg. Int. 101 . Commonwealth, Barker v., 19 Penn. St. R. 413 Commonwealth v. Baxter, 35 Penn. St. R. 363 Commonwealth v. Blnns, 17 S. & R. 319 Commonwealth v. Bradford, 9 Met. 368 Commonwealth, Brown «., 4 Pitts. L. J. 668 Commonwealth v. Burrell, 7 Penn. St. R. 34 Commonwealth v. Buzzell, 16 Pick. 153 Commonwealth, Clark v., 39 Penn. St. R. 139 Commonwealth v. Cluley, 56 Penn. St. R. 370 Commonwealth «. Collins, 8 Watts 344 Commonwealth v. Conyngham, 3 Brewst. 314 677 151 704 379 306 503, 537 . 463 . 671 R. 185 35,36 . 695 . 146 . 737 . 551 . 539 143, 630, 663 . 551 317, 319, 663, 677 . 653, 655 411, 703, 710 . 383 . 664 . 438 . 547 144, 151, 664 . 671 . 685 Table of Cases. XIX Commonwealth v. County Commissioners, 6 Rawle 75 383, 451, 582. Commonwealth v. County Commissioners, 32 Penn, St. R. 318 Commonwealth, Crutchen v., 6 Whart. 340 . Commonwealth v. Cullen, 13 Penn. St. E. 133 Commonwealth ». Cuncannon, 3 Brewst. 344 Commonwealth v. Davis, 3 Leg. & Ins. Rep. 18 Commonwealth, Dyott v., 5 Whart. 80 Commonwealth, Edge «., 7 Penn. St. R. 377 Commonwealth v. Eyre, 1 S. & R. 347 . Commonwealth u. Ford, 5 Penn. St. R. 67 . Commonwealth, Foster v., 8 W. & S. 79 Commonwealths. Garrigues, 38 Penn. St. R. 11 Commonwealth v. Giles, 1 Gray 466 Commonwealth «. Gill, 3 Whart. 336 . Commonwealth v. Gillespie, 7 S. & R. 469 Commonwealth v. Graham, 51 Penn. St. R. 258 Commonwealth v. Gray, 3 Duvall 372 . Commonwealth v. Green, 4 Whart. 531 Commonwealth v. Gurley, 45 Penn. St. R. 393 Commonwealth «. Hanley, 9 Penn. St. R. 513 Commonwealth, Hartmann v., 5 Penn. St. R. 63 Commonwealth «. Haworth, 3 Brewst. 445 . Commonwealth, Hazen v. , 23 Penn. St. R. 355 Commonwealth v. Hultz, 6 Penn. St. R. 469 Commonwealth v. Hunt, 4 Met. 135 Commonwealth v. Jailer, 7 Watts 866 . Commonwealth v. Jones, 12 Penn. St. R. 365 Commonwealth v. Judges of the Quarter Sessions, 8 Commonwealth, Juker v., 30 Penn. St. R. 484 Commonwealth v. Kaas, 3 Brewst. 433 Commonwealth v. Kuntzman, 41 Penn. St. R. 429 Commonwealth v. Leary, 1 Brewst. 270 Commonwealth v. Lee, 1 Brewst. 273 . Commonwealth v. Leech, 44 Penn. St. R. 333 Commonwealth, Leib «., 9 Watts 319 Commonwealth v. Loughlin, 30. Leg. Int. 100 Commonwealth v. McCloskey, 3 Rawle 369 . Commonwealth v. McCutchen, 3 Pars. 305 . Commonwealth, McElhiney «., 33 Penn. St. R. 365 Commonwealth i). McKisson, 8 S. & R. 430 . Commonwealth v. Maxwell, 37 Penn. St. R. 444 Commonwealth v. Mayloy, 57 Penn. St. R. 291 Commonwealth v. Meeser, 44 Penn. St. R. 341 Commonwealth v. Miller, 3 Pars. 480 . Commonwealth «. Mohn, 53 Penn. St. R. 343 PAGE 358, 313, 330, 649 569 664 64 737 566 551 381 143 546 514, 556, 557, 630, 656 . 551 340, 343 551, 716 469 737 130 541 670 554 376 554 339 551 530, 547 143, 145, 469 Penn. St. R. 391 36 356, 258, 449, 451 . 732 . 243 . 105 . 98, 193 . 557, 630, 663 . 459 . 143, 630, 663 196, 349, 557, 630, 663 . 664 . 508 . 551 334, 333, 677 . 567 . 448, 659 . 195, 711 . 551 XX Table of Oases. PAGE Comtttonwealth, Moyer «., 7 Penn. St. R. 439 .... 551 Commonwealth v. Paper, 1 Brewst. 363 106 Commonwealth, Parker »., 6 Penn. St. R. 507 .... 34 Commonwealth v. Peltz, 1 Brewst. 159 135 Commonwealth v. Railroad Co., 30 Penn. St. R. 618 . . . 146 Commonwealth v. Read, 3 Ash. 361 136, 151 Commonwealth v. Reed, 18 Pitts. L. J. 131 . . . . 630, 663 Commonwealth, Rhoads «., 15 Penn. St. R. 377 . . 544, 569, 693 Commonwealth v. Rupp, 9 Watts 114 731 Commonwealth v. Shaver, 3 W. & S. 338 134 Commonwealth ■». Shaw, 7 Met. 53 710 Commonwealth e. Sherban, 8 Watts 213 ... . 551, 737 Commonwealth ». Sheriff, 16 S. & R. 304 547 Commonwealth v. Sheriff, 1 Brewst. 183 ... . 105, 198 Commonwealth v. Small, 36 Penn. St. R. 31 . . . 149, 557, 630 Commonwealth «. Smith, 45 Penn. St. B. 59 ... 374, 467 Commonwealth v. Snowden, 1 Brewst. 318 104 Commonwealth, Stewarts., 4 S. &R. 194 716 Commonwealth, Street «., 6 W. & S. 309 . . . . 464, .539 Commonwealth i). Swift, 4 Whart. 186 671 Commonwealth v. Wallace, Thach. Cr. Cas. 593 . . . . 703 Commonwealth v. Woelper, 3 S. & R. 39, 43 . . . 301, 313, 266 Connelly, Mott «., 50 Barb. 516 611 Conrades, State »., 45 Mo. 45 . Conway i). Aldermen, 3 Brewst. 134 Conyngham, Commonwealth v., 3 Brewst. 314 Cook, People v.-, 8 N. Y. 67, 89 ; 14 Barb. 359 383, 384, 397, 433, 451, 453, 503, 533, 539, 711 Cook, State «., 41 Mo. 593 Cooper 1). Galbraith, 3 W. C. C. 546 Cooper, Howard v. , 3 Cong. Elect. Cas. 375 Corfield v. Coryell, 4 W. C. C. 371 Cornwell v. Isham, 1 Day 35 . Corson v. Hunt, 14 Penn. St. R. 510 Coryell, Corfield »., 4 W. C. C. 371 Cosden, Reed «., 1 Cong. Elect. Cas. 353 Cotteral v. Cummins, 6 S. & R. 348 Coulton, Drewe v., 1 East 563 n. . County Commissioners, Brown v., 10 Penn. St. R. 37 County Commissioners, Commonwealth «., 5 Rawle 75 383, 451, 583. County Commissioners, Commonwealth v., 33 Penn. St. R. 218 . 649 County of Davidson, Louisville and Nashville Railroad Co. v., 1 Sneed 637 . 26, 299 County of Philadelphia, Salter «., 1 Phila. 255 ... . 590 County Treasurer's Case 343 . 64 . 685 367, 376, 313, 370, 64 470 503 90 375 554 90 413 554 190, 191, 279 . 540 258, 313, 320, Table of Cases. XXI PAGE Covert, People «.,1 Hill 674 443 Oowan, Stephens e., 6 "Watts 513 566 Cowles, Peoples., 13 N.Y. 350 450,684 Coxe, Steinere., 4 Penn. St. R. 13 608 Crawford v. Wilson, 4 Barb. 504 429, 430 Crescent City Live-stock Landing and Slaughter-house Co. , Live- stock Dealers' and Butchers' Association v., 1 Abbott U. S. Rep. 388 68 Crosbie v. Hurley, 1 Ale. & Nap. 431 Cross V. Kaye, 6 T. R. 543 . Croswell, People «., 3 Johns. Cas. 337 . Crovf ell V. Lambert, 10 Minn. 369 . Crutchen v. Commonwealth, 6 Whart. 340 CuUin V. Morris, 3 Stark. 506 . Culpepper, McFarland v. , 1 Cong. Elect. Cas. 331 Cummings v. Missouri, 4 Wall. 377 Cummins, Cotteral «., 6 S. & R. 348 Cuncannon, Commonwealth «., 3 Brewst. 344 Da Costa «. Jones, Cowp. 739 Dallas, Respublica v., 3 Yeates 314 Daniels, State «., 44 N. H. 383 Dansey, Usher «., 4 M. & S. 94 Darrall, Moore v., 4 Hagg. Eccl. 346 Davis V. Church, 1 W. & S. 240 . Davis, Commonwealth v., 3 Leg. & Ins. Rep Davis, Harrison v., 3 Cong. Elect. Cas. 341 Davis V. Maxwell, 22 La. An. 66 . Davis, Risewick v., 19 Md. 83 Davis, Rudd «., 3 Hill 287 ; 7 Hill 539 . Davis V. State, 7 Md. 161 ... Davison v. Gill, 1 East 64 . . Davy V. Savadge, Hob. 87 . . . Dawes, Rex «., 4 Burr. 2022 , Day V. Kent, 1 Oregon 123 Deckert's Case Delany, Sweeny v., 1 Penn. St. R. 330 . Demeyer v. Souzer, 6 Wend. 436 . Dent, Talbot «., 9 B. Mon. 526 Derwent, Walkhouse «. , 1 W. Bl. 19 Devall V. Burbridge, 6 W. & S. 529 Diamond «. Watt, Leg. Doc. 1870, p. 1061 Dickey v. Hurlburt, 5 Cal. 343 Dishon v. Smith, 10 Iowa 212 Dixon, Gearhart «., 1 Penn. St. R. 334 . Dock V. Chief Burgess, 7 Watts 181 18 . 607, 610 . 346 . 429 . 319 . 569 . 193 . 441 86, 87, 88, 90, 97 . 554 . 64 . 739 . 689 . 193, 470 . 568 . 474 . 339 . 737 . 616 . 516 . 470 . 428, 430 . 40 . 508 . 200 . 145 . 449 213, 335, 350 . 339 . 428 . 36 . 729 . 431 . 335 . 257, 450 306, 450, 684 . 508 . 717 XXll Table of Cases. Dodd, Ex parte, 6 Eng. 153 . Dodsworth, Boyter v., 6 T. R. 681 Donegan v. Fletcher, 65 Penn. St. R. 21 DougMy ■». Hope, 3 Denio 349 Douglass V. State, 31 Ind. 479 Douglass, State »., 7 Clarke 413 Draper v. Johnston, 1 Cong. Elect. Cas. 703 Dresden, Case of, Cush. Elect. Cas. 301 Drewe v. Coulton, 1 East 563 n. Dudley, Morgan v., 18 B. Mon. 693 Duffield's Case Duflfy, Scott •»., 14 Penn. St. R. 18 Dunckle b. Keeker, 11 Barb. 387 . D'Wolf, Rabaud v., 1 Paine 587 . Dyott V. Commonwealth, 5 Whart. 80 . East India Co., Williams v., 3 East 193 Easton ». Scott, 1 Cong. Elect. Cas. 273 Eckford, Haldane v., L. R. 8 Eq. 631 . Edge V. Commonwealth, 7 Penn. St. R. 377 Eggleston, Augustin v., 13 La. An. 366 Elbin V. Wilson, 33 Md. 135 . Election of School Directors, 6 Phila. 437 Elliott, Good 1)., 3 T. R. 703 Ellis, Weeks v., 3 Barb. 330 EUwood, State v., 12 Wis. 553 . . Elmendorf v. Mayor of New York, 35 Wend Ely V. Adams, 19 Johns. 313 . Ely, Carpenter v., 4 Wis. 430 Ely ». Peck, 7 Conn. 343 EngUsh, Miller v., 1 Zabr. 317 Ensworth ». Albin, 46 Mo. 453 Erie, Trustees of Erie v., 31 Penn. St. R. 515 Evelyn, Claridge v., 5 Barn. & Aid. 81 . Ewing V. Filley, 43 Penn. St. R. 384 581, 654. Ewing, Thompsons., 1 Brewst. 67, 103-3 351, 373, 377, 381, 305, 334, 349, 359, 360, 365, 415, 449, 453, 453, 467, 501, 515, 566, 581. Ewing V. Thompson, 43 Penn. St. R. 377 .. . 565, 573, 611 Eyre, Commonwealth «., 1 S. & R. 347 281 PAGE 677 610 533 442 611 . 710, 711 . 125, 441 . 413 190, 191, 379 . 193 . 646 . 736 . 431 . 479 . 566 . 411, 413 . 876 . 479 . 551 . 336, 453 . 195, 433 . 366 . 730 . 438, 443 . 266 . 442 . 430 258, 306, 413 . 76 . 258, 451 . 64 . 508 . 129, 151 360, 364, 454, 540, 555, 556, 50, 111, 134, 229, 236, 237, Faggot V. Van Thiennen, Cas. Pr. C. P. 75 . Fairfield, Plunkett's Creek v., 58 Penn. St. R. 209 Farlee v. Runk, 3 Cong. Elect. Cas. 87 Farmers' Bank, Murphy v., 20 Penn. St. R. 415 . . 345 541, 544 . 113 . 146 Table of Cases. xxiu PAGE Farmers' and Mechanics' Bank, Hardenburgh «. , 3 Green Ch. 68 . 449 Farrar, Gordon B., 3 Doiigl. 411 50 Ferguson, Chapman «., 3 Cong. Elect. Caa. 367 .... 368 Ferguson, People «., 8 Cow. 103 364, 365, 367, 369, 383, 384, 390, 896, 436. Few, Lewis v., 5 Johns. 1 . . . Filley, Ewing «., 43 Penn. St. R. 484 681, 654. Finley Township Election, 16 Col. Rec. 44 Fisher v. Rutherford, Bald. 193 Fisher, Tarlton v., 3 Dougl. 676 . Fisher, Wright v., 1 Cong. Elect. Cas. 518 Fitzgerald b. Stewart, 53 Penn. St. R. 343 Fitzpatricli, State v., 4 Rhode Island 369 Fitzsimons, Bank of North America ■»., 3 Binn. 356 "Fletcher, Donegan »., 65 Penn. St. R. 31 Flint, Pitman »., 10 Pick. 506 Fogg, Hobbs v., 6 Watts 553 . Ford, Commonwealth v., 13 Penn. St. R. 365 Foreman, Lyle ■»., 1 Dall. 480 Forquer, People v., Breese 68 Forscht «. Green, 53 Penn. St. R. 138 Fort -0. Collins, 31 Wend. 109 Foster, Capen v., 13 Pick. 485 Foster v. Commonwealth, 8 W. & S. 79 Foster, Rice v., 4 Harrington 479 . Foster «. Scarff,.15 Ohio St. R. 535 Foster, Stewart «., 3 Binn. 110 Foust's Case, 31 Penn. St. R. 338 Foxcroft, Rex «., 3 Burr. 1017 Francis, Rex «., 3 Ad. & E.,49 Freeland, Mayo v., 10 Mo. 639 Freeman v. Tranah, 13 C. B. 413 . Frest, State »., 4 Harrington 558 . Fretz's Case, Pamph. Frey, Benner v., 1 Binn. 369 Frost 1}. Brisbin, 19 Wend. 31 Fry V. Booth, 19 Ohio St. R. 35 . Fuller's Case, 3 East P. C. 831 Fuller, MUliken «., 3 Cong. Elect. Cas. 176 Furlong, United States v., 5 Wheat. 184 Fury v. Stone, 3 Dall. 184 .. . Galbraith's Case, 3 Votes Ass. 184 Galbraith, Cooper «., 3 W. 0. C. 546 Gale i>. Babcock, 4 W. 0. C. 199 . . .. .437 0, 364, 454, 540, 555, 556, . 450 . 339 . 379 . 368' . 549 . 710 . 546 . 533 . 509 36,49 . 143 . 347 . 678 . 736 . 438 51, 194, 195 . 546 3,313 138, 358, 679 189, 457 . 333 139, 133 . 340 . 306 . 567 . 113 . 49 . 339 . 470 451, 503 . 716 . 376 . 733 . 569 367 470 345 XXIV Table of Cases. Galway v. Banon, Long. & Towns. 70 Gardener, Husted v., 28 Leg. Int. 140 Gardner's Case, 3 Mass. 344 . Garland, Ex parte, 4 Wall. 333 Garrat «. Garrat, 4 Yeates 344 433 36 97 551 Garrigues, Commonwealtli «., 38 Penn. St. R. 11 514, 556, 557, 630, 656 Gates V. Neal, 33 Pick. 808 194, 195 Gearhart v. Dixon, 1 Penn. St. R. 334 508 Geebrick v. State, 5 Iowa 491 26 German Lutheran Congregation, Pennsylvania Railroad Co. v., 53 Penn. St. R. 445 541, 548 Geyer, Weckerly «., 11 S. & R. 35 193 Gibbons v. Sheppard, 2 Brewst. 1, 3, 130 50, 106, 335, 450, 453, 493, 493, 503, 536, 558, 638. Gibbons v. Sheppard, 65 Penn. St. R. 20, 35, 44 356, 357, 335, 336, 349, 467, 538, 698. Gibbs, Blandford v., 3 Cush. 39 Gibbs, Respublica v. , 3 Yeates 439 Gibson v. Hunter, 3 H. Bl. 187 Gilbert v. Sykes, 16 East 150 . Giles, Commonwealth «. , 1 Gray 466 Giles, State v., 1 Chand. 112 . Gill, Commonwealth v., 3 Whart. 236 Gill, Davison »., 1 East 64 Gillespie, Commonwealth «., 7 S. & R. 469 Gillespie ■». Palmer, 20 Wis. 544 Gills, United States v., 3 Cranch C. C. 44 Given, Philadelphia v., 60 Penn. St. R. 136 Given, Weaver «., 1 Brewst. 140 337, 335, Glascock «. Lyons, 30 Ind. 1 . Gloucester Election, Cush. Elect. Cas. 97 Glover, State «., 41 Mo. 339 . Godwin, Rex «., 1 Dougl. 883 Goetze, State «., 23 Wis. 363 . Goldsmith, Nichols v., 7 Wend. 160 Goldthwaite, State v., 16 Wis. 146 Good V. Elliott,. 8 T.. R. 703 . Gordon v. Parrar, 2 Dougl. 411 Gore, Harvard College v., 5 Pick. 370 Gorham v. Campbell, 3 Cal. 135 Gotcheus 1). Matheson, 58 Barb. 153 Governor, The, State «., 1 Dutch. 831, 348 Graham, Commonwealth v., 51 Penn. St. R, Granby e. Amherst, 7 Mass. 1 . Gray, Commonwealth «., 3 Duvall 373 . Gray v. State, 4 Ohio 353 . 454 48, 97 . 437 738, 730, 733 . 551 . 150 . 340, 842 . 508 . 551, 716 . 194 . 193 . 611 355, 359, 415, 449, 492, 501 ' . 608, 611 . 312 87, 89 . 149 . 684 . 429, 480 . 266 . 730 . 50 . 189 . 450 258 305, 319 . 469 470, 471 . 737 . 50 Table op Cases. XXV Gray v. State of Delaware, 2 Harrington 76 Green, Commonwealth v. , 4 Whart. 531 Green, Forscht v., 53 Penn. St. B. 138 . Green, Littlefleld v., 1 Chicago Leg. News 330 Green v. Rennet, 1 T. R. 783 . Greenbank, Thayer «., 1 Brewst. 189 . Greenleaf v. Low, 4 Denio 168 Gregory v. King, 3 Chicago Leg. News 349 . Gregory, Northrop «., 2 Abbott TJ. S. Rep. 505 Griswold,.Taylore., 3 Green233 . Grove's Appeal, 37 Penn. St. R. 443 . Grow, Searcy v., 15 Cal. 117 .... Guardians, Regina «., 5 Eng. L. & Eq. 361 . Guerss, Henkin v., 13 East 247 .. . Guhr V. Chambers, 8 S. & R. 157 . Guier «. O'Daniel, 1 Binn. 349 n. . Gurley, Commonwealth v., 45 Penn. St. R. 393 Guyer, McCafferty «., 59 Penn. St. R. 109 . Hadley v. City of Albany, 33 N. Y. 603 Hagner i). Heyberger, 7 W. & S. 107 . Haines, Hammond ■!)., 35 Md. 541 . Haldane v. Eckford, L. R. 8 Eq. 631 . Hamilton, Rex »., 7 0. & P. 448 . Hammond v. Haines, 35 Md. 541 . Hanley, Commonwealth v., 9 Penn. St. R. 513 Hapgood, Jennison v., 10 Pick. 77 . Hapgood, Lincoln v., 11 Mass. 350 Hardenburgh v. Farmers' and Mechanics' Bank, Harker, State «., 4 Harrington 559 Harland, Regina «., 8 Dowl. 333 . Harman i). Tappenden, 1 East 555 Harralson, McCraw v., 4 Cold. 34 . Harris, People »., 29 Cal. 678 Harrison, Carter v., 5 Blackf. 138 . Harrison v. Davis, 3 Cong. Elect. Cas. 341 . Harrison, State ■»., 38 Mo. 540 Hart, State v., 6 Jones (Law) 389 . Hartley, Rossett v., 7 Ad. & E. 553 Hartmann v. Commonwealth, 5 Penn. St. B. 63 Hartt V. Harvey, 33 Barb, 55 . Hartwell, People «., 12 Mich. 508 . Harvard College v. Gore, 5 Pick. 370 . Harvey, Hartt «., 33 Barb. 55 Hascall, State a., 6 N. H.^ 353 ... Basket «. Wootan, I.N. & M. 180 . PAGE 16, 19 . 130 . 736 . 493 . 345 . 503 . 438 736, 737 . 276 383, 384 . 548 . 491 133, 399 . 731 . 345 469, 474 . 541 44, 81, 97 307, 669 623 36 479 551 26 670 470 34, 53, 113, 193, 195 3 Green Ch. 68 449 . 616 . 341 190, 191 453, 454 . 703 . 193 . 616 . 306 . 703 . 340 . 554 313, 330 450, 684 . 189 313, 330 . 443 . 735 XXVI Table of Oases. Hastings, People «., 29 Cal. 449 .. . Hawk, Thacker v., 11 Ohio 376 . Hawkins, Rex «., 10 East 211 Haworth, Commonwealth v., 3 Brewst. 445 . Hayes, Stewart v., 3 Chicago Leg. News 117 Haynes, State v., 13 Cal. 145 . Haynorth, State v., 3 Sneed 64 . . . Hazeh v. Commonwealth, 33 Penn. St. E. 355 Hazleton Coal Co., Megargell «., 8 W. & S. 342 Head, People «., 25 111. 328 . Hearn, Allen ?i., 1 T. E. 56 . Heath, Ex parte, 3 Hill 43 . Heighland, State v., 41 Mo. 388 . Hendesty ». Taft, 23 Md. 513 Henkin v. Guerss, 12 East 247 Heme, Andrews «., 1 Ley. 33 Heyberger, Hagner «., 7 W. & S. 107 Hicks v. Martin, 9 Mart. (La.) 47 . Higgins, People v., 3 Mich. 233 Hildreth, Bourland v., 36 Cal. 161 . Hill, Rex v., 2 Ld. Raym. 1415 . Hilliard, People v., 29 111. 423 Hilmantel, State »., 31 Wis. 566 . Hilmantel, State v., 33 Wis. 422 . Himrod, Barto d., 8 N. Y. 483 Hindson «. Kersey, 1 Day 81 n. Hiorns, Eegina »., 7 Ad. & Ellis 960 ; 3 N. & P. 184 Hixon, Bowen v., 45 Mo. 340 Hobbs t. Fogg, 6 Watts 553 . Hoboken Land and Improrement Co., Murray »., Hodges's Case .... Hoffman, Bevard «., 18 Md. 479, 483 Holden, People «., 38 Cal. 133 . 113, 114, 367, Holland, Rex o., 4 T. R. 457 . Hope, Doughty v., 3 Denio 349 Hopkins, Keen v., 48 Penn. St. R. 445 Hopkinton, Case of, Cush. Elect. Cas. 36 Hopson, People v., 1 Denio 575 Houghton, Spragins.ii., 3 Illinois 377 Howard v. Cooper, 2 Cong. Elect. Cas. 375 Howard, IngersoU v., 19 Am. L. R. 193 Howard v. Sexton, 1 Denio 440 Howard v. Shields, 16 Ohio St. R. 184 . Howard, Shirley v., 3 Chicago Leg. News 230 Howard v. Wood, 3 Lev. 345 ; 2 Jon. 136 Howard County, State v., 41 Mo. 247 . PAGE . 693 . 50 148, 151, 411, 414 . 376 . 151 . 150 . 711 . 554 . 339 . 306 733, 735 362, 305, 401, 443 87, 97 . 64 . 731 738, 739 . 633 . 413 367, 370, 384 . 337 . 709 . 306 64, 453 377, 384 . 24 340, 375 . 147 313, 516 86,49 18 How. 380 . 74 . 479 34, 193 384, 480, 537, 663 . 346 . 443 . 548 . 489 . 443 49, 153 . 503 . 97 . 443 336, 378, 454 . 737 . 610 . 581 Table of Cases. XXVll Huber v. Eeily, 53 Penn. St. R. US Hugunin v. Ten Eyck, 1 Cong. Elect. Gas. 501 Hull, Pratt «., 13 Johns. 384 . Hulseman ■». Rems, 41 Penn. St. R. Hultz, Commonwealth v. , 6 Penn. St. R, Humphrey v. Kingman, 5 Met. 163 Hunt, Commonwealth v., 4 Met. 135 Hunt, Corson v., 14 Penn. St. R. 510 Hunt V. Richards, 4 Kansas 549 Hunter v. Chandler, 45 Mo. 453 Hunter, Gibson «., 3 H. Bl. 187 . Hunter, Martin v., 1 Wheat. 304 . Hurlburt, Dickey v., 5 Cal. 343 Hurley, Crosbie »., 1 Ale. & Nap. 331 Husted V. Gardener, 38 Leg. Int. 140 Huston v. Mitchell, 14 S. & R. 310 . Hyde v. Stone, 9 Cow. 330 . IngersoU v. Howard, 19 Am. L. R. 193 Ingersoll, Woods v., 1 Binn. 146 . Ingerson v. Berry, 14 Ohio St. R. 335 Irwin, Clarke v., 5 Nevada 113 Isham, Cornwell v., 1 Day 35 Jailer, Commonwealth b., 7 Watts 366 Jackson, Monroe v., 3 Cong. Elect. Cas. Jackson ®. Walker, 5 Hill 37 . Jackson «. Young, 5 Cow. 369 Jacobs «. Murray, 15 Cal. 331 Jansen v. Acker, 33 Wend. 480 Jarvis, Rex v., 1 Burr. 148 Jeflferson, Steward v., 3 Harrington 335 Jeffries v. Ankeny, 11 Ohio 373 Jenkins, State «., 43 Mo. 861 . Jenkins v. Waldron, 11 Johns. 114 Jennings v. Reynolds, 4 Kansas 110 Jennison v. Hapgood, 10 Pick. 77 . Johnson, Putnam v., 10 Mass. 488 Johnson, State v., lit Ark. 407 Johnston's Case . . . Johnston, Draper v., 1 Cong. Elect. Cas Johnston «. Russell, 37 Cal. 670 . Johnston v. Wilson, 3 N. H. 303 . Jones, Commonwealth v., 13 Penn. St. R Jones, Da Costa v., Cowp. 739 Jones, People v., 30 Cal. 50 . 336, 469 703 365 PAGE 43, 45, 49, 69, 543 . 368 . 438 314, 454, 633, 654, 663 . 339 . 125 . 551 . 554 . 113 377, 309, 581, 611 . 427 . 76 357,, 451 607, 610 . 433 . 567- . 430 . 97 . 508 . 383 . 678 . 375 530, 547 . 114 . 613 . 443 . 450 . 438 . 709 16, 18 50, 194 . 677 190, 379, 401 ■ 736, 737 . 470 113, 471 . 581 . 183 135, 441 . 736 . 678 143, 145, 469 . 729 313, 483 XXVlll Table of Cases. PAGE Jones V. Randall, Cowp. 37 733, 785 Jones, State «., 19 Ind. 356 306, 450, 684 Jones «. State, 1 Kansas 379 450 Judge of Ninth Judicial Circuit, State v., 13 Ala. 805 113, 267, 865, 370 Judges of the Quarter Sessions, Commonwealth v., 8 Penn. St. R. 391 26 Juker V. Commonwealth, 20 Penn. St. R. 484 . 256, 258, 449, 451 Justices of Middlesex, State v., Coxe 244 . . . . ' . 557 Kaas, Commonwealth v., 3 Brewst. 432 Kaye, Cross «., 6 T. R. 543 . Keen v. Hopkins, 48 Penn. St. R. 445 Keenan, Oakland Railway Co. «., 5 Penn. St, Keene, Brown v., 8 Pet. 113 . Keller v. Chapman, 34 Cal. 635 Kellogg, Roosevelt v., 20 Johns. 208 Kelly, Strykeri!., 7Hill9 Kelsey, People v., 34 Cal. 470 Kendrick, Regina v., 5 Ad. & Ellis 49 . Kennedy v. Barnett, 64 Penn. St. R. 141 Kent, Day »., 1 Oregon 133 . Kerns, Marshall v., 3 Swan 68 Kerr v. Sharp, 14 S. & R. 399 Kerr «. Trego, 47 Penn. St. R. 292 Kersey, Hindson v., 1 Day 81 n. . Kilduff, People v., 15 111. 493 Kilham v. Ward, 2 Mass. 236 Kilpatrick's Case, 31 Penn. St. R. 198 King «. Coit, 4 Day 129 '. . . King, Gregory v., 3 Chicago Leg. News 349 King, Tanner »., 11 La. 175 . Kingman, Humphrey v., 5 Met. 162 Kinne v. City of Syracuse, 3 Keyes 110 Kintzer, Mitchell v., 5 Penn. St. R. 216 Kline ». Myers, 2 Cong. Elect. Cas. 574 Kneass's Case, 2 Pars. 553 189, 381, 434, 336, 453, 453, 465, 466, 509, 537. Kneass, Reed v., 2 Pars. 584; 1 Phila. 163 Kneass, Wallington v., 15 Penn. St. R. 313 Knight, Lawrence v., 1 Brewst. 67 Knowles «. Yeates, 31 Cal. 82 Kocker, Dunckle «., 11 Barb. 387 . Koplin, Labar «., 4 N. Y. 548 Kopplekom, People ti., 16 Mich. 342 Kortz, Van Steenburgh v., 10 Johns. 167 R. 198 . 722 . 346 . 548 . 541 . 188 . 450 . 470 . 442 . 694 . 651 . 379 . 449 268, 306, 451 . 554 319, 633, 630 633 340, 375 366, 306 36, 53 . 233 . 379 736, 737 . 474 . 135 . 536 . 347 . 365 337, 353, 355, 359, 360, 366, 377, 414, 416 . 556 . 617 257, 451, 503 . 431 . 438 . 64, 453 . 443 Table oi' Cases. XXIX Kugler's Appeal, 55 Penn. St. R. 123 . Kuntzman, Commonwealth v., 41 Penn. St. R. 439 131 R. 333 Labar v. Koplin, 4 N, Y. 548 ... Lacoste, People »., 37 N. Y. 193 . Lamb v. Lynd, 44 Penn. St. R. 336 Lambert, Crowell v., 10 Minn. 369 Lancaster Election, 4 Votes Assembly 135, 137 Lane, Stanton «., 3 Cong. Elect. Cas. 637 Lansing v. Lansing, 8 Johns. 464 . Latimer «. Patton, 1 Cong. Elect. Cas. 69 Lauck, Bang v., 5 Cold. 588 . Layal v. Myers, 1 Bailey 486 . Law V. Merrills, -6 Wend. 376 Lawrence, Ex parte, 5 Binn. 304 . Lawrence v. Knight, 1 Brewst. 67 . Lawrence, Stevenson v. , 1 Brewst. 126, Lawrence, Tioga «., 2 Watts 43 Leary, Commonwealth i)., 1 Brewst. 370 Lee, Commonwealth v. , 1 Brewst. 373 Leech, Commonwealth «., 44 Penn. St. Leeson, Brown «., 3 H. Bl. 43 Lehman v. McBride, 15 Ohio St. R. 573 Lehre, State v., 7 Rich. 234 . Leib v. Commonwealth, 9 Watts 319 Leisenring, Lloyd v., 7 Watts 394 . Lelar's Case . ■ . Levering v. Railroad Co., 8 W. & S. 46i Lewis's Case, 39 Penn. St. R. 518 Lewis V. Few, 5 Johns. 1 Lewis, Williamson v., 39 Penn. St. R. 9 Liebenthaler, Carroll v., 19 Am. L. Reg, Lightfoot D. Cameron, 3 W. Bl. 1113 Lightfoot, Cameron «., 2 W. Bl. 1190 Lightly V. Clouston, 1 Taunt. 114 . Lincoln v. Hapgood, 11 Mass. 350 Littlefleld v. Green, 1 Chicago Leg. News 493 Live-stock Dealers' and Butchers' Association t Live-stock Landing and Slaughter-house Co. Rep. 388 . . . . ' . Lloyd V. Leisenring, 7 Watts 294 . Loan, Bruce «., 3 Cong. Elect. Cas. 483 Locust Ward Election, 4 Penn. L. J. 341 Lombard v-. Oliver, 7 Allen 155 Loose, Schuylkill Navigation Co. v., 19 Penn. St, Loughlin, Commonwealth v., 30 Leg. Int. 100 448 PAGE . 536 . 343 . 438 . 664 . 634 . 319 312, 449 . 655 734, 735 . 267 450, 581 .• 728 . 431 . 530 . 617 515, 527, 547 . 544 . 105 98, 193 557, 630, 663 . 733 337, 556 . 454 . 459 . 736 . 334 . 546 . 665 . 437 . 530 \ 611 . 379 . 279 . 610 34, 53, 113, 193, 195 . 493 Crescent City 1 Abbott U. S. 281 . 736 . 616 , 376, 377, 451, 502 . 195 R. 18 . 543, 546 . 143, 630, 663 XXX Table op Oases. PAGE Louisville and Nashville Eailroad Co. v. County of Davidson, 1 Sneed 637 36, 299 Lovett, Mace v., 5 Burr. 2833 346 Low, Greejileaf «., 4Denio 168 438 Lowry, Miller »., 5 PMla. 202 319, 623 Loxdale, Bex v., 1 Burr. 447 77, 529 Luddington v. Peck, 2 Conn. SOO 379 Luzerne County Election, 3 Penn. L. J. 155 Lyle V. Foreman, 1 Dall. 480 347 Lynd, Lamb v., 44 Penn. St. E. 336 634 Lyons, Glascock v., 20 Ind. 1 608, 611 McBride, Lehman v., 15 Ohio St. E. 573 McCafferty v. Guyer, 59 Penn. St. E. 109 McCarthy, Smith v., 56 Penn. St. E. 859 McClean, Eespublica ■»., 4 Yeates 399 . McCloskey, Commonwealth v., 2 Eawle 369 . . 196, McCoy, Spei8e«.,6 W. &S. 485 . McCraw v. Harralson, 4 Cold. 84 . McCreery, Barney »., 1 Cong. Elect. Oas. 167 McCutchen, Commonwealth v., 2 Pars. 205 . McDaniels's Case, 8 Penn. L. J. 810 111, 113, 329, 238, 467, 493. McDonald, State v., 4 Harrington 555 . McElhiney v. Commonwealth, 32 Penh. St. E. 365 McFarland v. Culpepper, 1 Cong. Elect. Cas. 331 McFarland v. Purviance, 1 Cong. Elect. Cas. 131 McGhee, Beck «., House Journ. 1856, p. 304 McGuire, State »., 7 Humph. 54 . . . McIUwee, Ex parte, 3 Am. L. Times 351 McUvain v. Christ Church of Beading, 38 Leg. Int. 136 McKay «. OampbeU, 3 Abbott TJ. S. Bep. 130 McKee, Brunott o., 6 W. & S. 514 McKinney v. O'Connor, 36 Texas 5 McKinney, Eeynolds v., 4 Kansas 94 . McKisson, Commonwealth »., 8 S. & E. 430 . McManus, People B., 34 Barb. 630 . MicMartin ». Taylor, 3 Barb. 356 . McMasters, Smyth v., 3 P. A. Browne 182 . McNeely ii. Woodruff, 1 Green 353 McPhetridge, Carson v., 15 Ind. 827 Mace V. Lovett, 5 Burr. 3833 .... Maclay, Eeichly «., 3 W. & S. 59 . Macomber, State »., 7 Bhode Island 349 . Madison, Marbury v., 1 Cranch 137 Maddox «. State, 33 Ind. Ill . 337, 556 44, 81, 97 26, 623 . 531 349, 557, 630 . 736 453, 454 . 51 . 664 381, 376, 377, 193, 195 . 508 . '441 . 441 . 255 . 703 49,65 . 633 49, 67 . 459 450, 452 736, 737 551, 554 . 266 . 428 734, 736 . 454 143, 161 . 34'6 . 736 . 703 . 575 . 479 Table of Cases. XXXI Magruder, Wilcox v., 7 West. L. J. 507 Main, Chandler «., 16 Wis. 343 Maiden, Case of, Cush. Elect. Cas. 377 Mallary «. Merrill, 1 Cong. Elect. Cas. 328 Mallinson, Rex «., 2 Burr. 679 Mann v. Cassidy, 1 Brewst. 11 334, 385, 349, 351, 359, 377, 383, 414, 449, 454, 466, 467, 492, 501, 534, 550. Mansfield Election, Cush. Elect. Cas. 17 . . '. . .581 PAGE 453 237 189 268 716 Marbury v. Madison, 1 Cranch 137 . March v. Pigot, 5 Burr. 2802 . Marlow, State «., 15 Ohio St. R. 114 Marshall v. Kerns, 2 Swan 68 Marshall, State v., 45 N. H. 281 . Marshall, Tumey v., 2 Cong. Elect. Cas. 167 Martin, Hicks v., 9 Mart. (La.) 47 Martin v. Hunter, 1 Wheat. 304 . Martin, People «., 13 Cal. 409. Martin, Steel b., 5 West. Jur. 33 . Mather, People «., 4 Wend. 246 Matheson, Gotoheus v., 58 Barb. 153 Matteson, People v., 17 111. 167 . Maxwell, Commonwealth »., 27 Penn. St. R. Maxwell, Davis v., 33 La. An. 66 . Mayfleld, Moore »., 47 111. 167 Mayfleld v. Moore, 3 Chicago Leg. News 114 Mayloy, Commonwealth «., 57 Penn. St. R. 391 Mayo V. Freeland, 10 Mo. 639 ... Mayor and Common Council of Baltimore i). State, 15 Md. 459 Mayor of Brooklyn, Patchin v., 13 Wend. 664 . Mayor of New York, Elmendorfc., 25 Wend. 696 Maysville and Lexington Railroad Co., Slack v., 13 B. Mon. 1 Mayworm, People «., 5 Mich. 146 Meeser, Commonwealth »., 44 Penn. St. R. 341 . Megargell v. Hazleton Coal Co., 8 W. & S. 343 . 444 . 575 . 729 . 663 358, 306, 451 . 711 . 51 . 413 . 76 . 685 . 336 . 431 . 83 . 366 324, 232, 677 . 516 . 557 . 605 . 567 . 306 41,43 . 577 . 443 . 26 . 267 448, 659 . 339 Megary, Batturs v., 1 Brewst. 163 . . 356, 334, 335, 355, 359, 501 Megoun, Pike «., 44 Mo. 493 196 Melvin, Chadwick v 251, 451, 503 Memphis Railroad, People's Railroad s., 10 Wall. 50 ... 36 Merrill, Mallary v., 1 Cong. Elect. Cas. 328 268 Merrills, Law v., 6 Wend. 276 431 Messmore, State v., 14 Wis. 115 302 Milbank, Powells., IT. R. 399 n 610 Milbank, Powell «., 2 W.Bl. 851 411 Milborne Port, Case of, 1 Dougl. Elect. Cas. 67 . . . .395 Miller, Armstrong v 664 XXXll Table of Cases. Miller, Chase v., 41 Penn. St. R. 408, 413, 420 314, 472, 477, 540, 566. Miller, Commonwealth v., 2 Pars. 480 Miller v. English, 1 Zabr. 317 Miller v. Lowry, 5 Phila. 202 Miller, People v., 16 Mich. 56 Miller «. Eucker, 1 Bush 135 . Miller «. Thompson, 2 Cong. Elect. Cas. 118 Milliken, Anderson »., 9 Ohio St. R. 568 Milliken v. Puller, 2 Cong. Elect. Cas. 176 Minnick, State d., 15 Iowa 123 Missouri, Cummings v., 4 Wall. 277 Mitchell, Huston «., 14 S. & R. 810 Mitchell 41. Kinzer, 5 Penn. St. R. 216 . Moers v. City of Reading, 21 Penn. St. R. 188 Moffet, Myers «., 1 Brewst. 230 . Mohawk and Hudson Railroad Election, 19 Wend Mohn, Commonwealth «., 52 Penn. St. R. 243 Monday, Rex v., Cowp. 580 . Monroe ®. Jackson, 2 Cong. Elect. Cas. 98 Moore v. Darrall, 4 Hagg. Eccl. 346 Moore v. Mayfleld, 47 111. 167 Moore, Mayfleld v., 8 Chicago Leg. News 114 Moore, State v., 8 Dutcher 105 Moran v. Rennard, 3 Brewst. 601 . Morgan v. Dudley, 18 B. Men. 693 Morgan v. Quackenbush, 22 Barb. 77 Morris, CuUen «., 3 Stark. 506 Morris, State «., 7 Blackf. 607 Morrison v. Springer, 15 Iowa 304 . Moses, Nolton «., 3 Barb. 36 . Mott V. Connelly, 50 Barb. 516 Mott ». Railroad, 30 Penn. St. R. 9 Moyer «. Commonwealth, 7 Penn. St. R. 439 Murphy, Ex parte, 7 Cow. 153 Murphy v. Farmers' Bank, 20 Penn. St. R. 415 Murphy, United States v., 16 Pet. 203 Murray v. Hoboken Land and Improvement Co., Murray, Jacobs «., 15 Cal. 221 Murray, People v., 15 Cal. 221 Musgrave, Bailey «., 2 S. & R. 219 Myers, Kline «., 2 Cong. Elect; Cas. 574 Myers, Laval v. , 1 Bailey 486 . Myers «. Moffet, 1 Brewst. 280 Myers, Spear «., 6 Barb. 445 . Mytinger v. Springer, 8 W. & S. 405 PAGE 26, 113, 214, 350, 195, 711 258, 451 319, 633 . 819 . 193 . 113 50, 194 . 376 . 711 86, 87, 88, 90, 97 567 347 26 . 453, 498, 502 135 . ■ . 438 . 551 148, 151 . 114 . 474 . 557 . 605 . 705 . 198 . 193 . 805 . 193 . 704 49, 237 . 481 . 611 . 636 . 551 397, 454 . 146 . 374 . 74 . 450 . 257 339, 567 . 865 . 728 453, 493, 502 481 786 18 How. 280 Tabi;B of Cases. XXXlll Neal, Gates®., 23 Pick. 308 Negley, Boyd«., 40 Penn. St. R. 877; 53 Ibid. 387 Newcastle Election, 1 Votes Assembly 124 . New Jersey Case, 2 Cong. Elect. Cas. 19 Nichols V. Goldsmith, 7 Wend. 160 Nolton V. Moses, 3 Barb. 36 ... . Northampton Election, 4 Votes Assembly 658 Northrop v. Gregory, 2 Abbott U. 8. Rep. 505 Northumberland County Election, 1 Phila. 446 North Whitehall a. South Whitehall, 3 S. & R. 121 Norton, Cady v., 14 Pick. 236 Norway, Sprague v., 31 Cal. 175 . Nottingham, Cecil «., 12 Mod. 348 Noyes, State «., 10 Post. 279 . Oakland Railway Co. b. Keenan, 56 Penn. St. R. 198 Gates ®. Shepherd, 3 Stra. 1273 O'Brien, Brower ■»., 3 Ind. 423 O'Connell, Brown «., 36 Conn. 432 O'Connor, McKinney®., 26 Texas 5 O'Daniel, Guier v., 1 Binn. 349 n. O'Farrall v. Colby, 2 Minnt 180 Olin, State «., 23 Wis. 309 Olive V. O'Riley, Minor 410 . Oliver, Lombard v., 7 Allen 155 O'Neill, State v., 24 Wis. 149 . Opinion of Justices, 44 N. H. 633 Opinion of the Judges, 38 Maine 597 Opinion of the Judges, 30 Conn. 591 Opinion of the Judges, 1 Met. 580 Opinion of the Judges, 5 Met. 587 ; Cush. Elect, Cas. 436 Opinion of the Judges, 5 Met. 591 Opinion of the Judges, Cush. Elect. Cas. 130 O'Riley, Olive «., Minor 410 . Orvis, State v., 20 Wis. 235 . Oulton, People v., 28 Cal. 44 Padmore, Bodfleld v., 5 Ad. & Ellis 785 . Paflf, Breiden «., 12 S. & R. 430 Page V. Allen, 58 Penn. St. R. 338 Palmer, Gillespie «., 20 Wis. 544 Paper, Commonwealth v., 1 Brewst. 263 Parker «. Commonwealth, 6 Penn. St. R. 507 Parker, Regina «., 3 Ad. & Ellis 293 Parry, Rex «., 14 East 549 Parry, Rex v., 6 Ad. & Ellis 810 ; 2 N. & P. 414 C PAGE 194, 195 548 450 413 429, 430 . 431 , 450 , 376 , 336 , 521 . 438 450 452 , 280 • 26 541 , 345 306 694 450 453 469 474 306 377 413 . 384 195 36 , 237 150 367 337 114 113 , 135 , 189 , 384 , 684 • 611 340 , 414 50, 63 689 194 , 106 , 24 , 719 148 151 . 145 XXXIV Table of Cases. Passyunk Election . Patchin v. Mayor of Brooklyn, 13 Wend. 664 Patterson v. Barlow, 60 Penn. St. R. 54 . Patton, Latimer v., 1 Cong. Elect. Cas. 69 Pearce «. State, 1 Sneed 637 .... Pease, People v., 30 Barb. 588 ; 27 N. Y. 45 385, 610. Peavey ». Robbins, 3 Jones (Law) 339 . Peay, Scbenck v., Peck, Elys., 7 Conn. 342 .... Peck, Luddington ».,2 Conn. 700 . Peck, People v., 11 Wend. 604 ... Peck V. Weddell, 17 Ohio St. R. 271 Peltz, Commonwealth v., 1 Brewst. 159 . Penelope, The, United States v., 3 Pet. Ad. 450 Penn District Election, 2 Pars. 526 Penn District Election Case .... Pennsylvania Railroad Co. v. German Lutheran 53 Penn. St. R. 445 . People V. Acton, 48 Barb. 534 . People 1). Allen, 6 Wend. 486 . People, Barker v., 30 Johns. 457 People V. Bartlett, 6 Wend. 433 People V. Bates, 11 Mich. 363 . People ». Blake, 49 Barb. 9 . . . . People «. Board of Registration, 15 Mich. 156 People v. Brenham, 3 Cal. 477 ... People V. Canvassers of Kent Co., 11 Mich. Ill People «. Cicott, 16 Mich. 383 267, 370, People V. Clark, 4 Cow. 95 ... . People V. Clarke, 11 Barb. 387 ... People V. Cook, 8 N. Y. 67, 89 ; 14 Barb. 359 384, 397, 433, 451, 453, 503, 533, 539, 711. People «. Covert, 1 Hill 674 . People V. Cowles, 13 N. Y. 350 .. . People V. Crosswell, 8 Johns. Cas. 837 . People «. Ferguson, 8 Cow. 102 264, 265, 396, 436. People V. Forquer, Breese 68 . People ». Harris, 29 Cal. 678 . People V. Hartwell, 13 Mich. 508 People V. Hastings, 29 Cal. 449 People V. Head, 25 111. 838 People 11. Higgins, 3 Mich. 333 People V. Billiard, 39 111. 433 . People i). Holden, 38 Cal. 123 . 113, 114, PAGE . 374 . 577 50, 63, 135 . 267 . 710 106, 189, 264, 369, 384, . 193 . 678 . 76 . 279 . 442 . 623, 663 . 135 . 247, 470, 474 . 451,503 .J . . 517,533 Congregation, . 541,548 . 694 . 539 73, 81, 138 . 443 . 450 . 694 . 64 450 . 299 376, 377, 384, 453, 454 . 303 . 424 367, 376, 813, 870, 383, . 443 . 450, 684 . 439 367, 369, 883, 384, 390, . 678 . 703 450, 684 . 693 . 306 267, 370, 384 . 306 367, 384, 480, 587, 663 Table of Cases. XXXV 45 106, People V. Hopson, 1 Denio 575 People ». Jones, 30 Cal. 50 People V. Kelsey, 34 Cal. 470 . People V. Kilduff, 15 111. 493 . People «. Kopplekom, 16 Mich. 343 People V. Lacoste, 37 N. Y. 193 People V. McManus, 34 Barb. 630 People V. Martin, 13 Cal. 409 . People V. Mather, 4 Wend. 346 People V. Matteson, 17 111. 167 People V. Maywonn, 5 Mich. 146 People V. Miller, 16 Mich. 56 . People V. Murray, 15 Cal. 331 People V. Oulton, 38 Cal. 44 . People V. Pease, 30 Barb. 588; 37' N. Y. 385, 610. People 1!. Peck, 11 Wend. 604 People, Piatt v., 39 111. 54, 73 . People e. Porter, 6 Cal. 36 People V. Raymond, 37 N. Y. 428 . People V. Reynolds, 5 Grilman 1 People V. Riley, 15 Cal. 48 People V. Roe, 1 Hill 470 People V. Rosborough, 14 Cal. 180 People ■». Saxton, 33 N. Y. 309 People V. Schemerhorn, 19 Barb. 540 People V. Seaman, 5 Denio 409 People V. Smith, 51 111. 177 . People •». Smyth, 38 Cal. 21 . People «. Stevens, 5 Hill 616 . People ®. Tieman, 30 Barb. 193 People V. Tisdale, 1 Dougl. 59 People V. Town of Fairbury, 51 111. 149 People V. Turnpike Co., 23 Wend. 328 People V. Tuthill, 31 N. Y. 550 People ®. Vail, 30 Wend. 12 . 263, 365, 813, 383 People V. Van Cleve, 1 Mich. 363 . People V. Van Slyck, 4 Cow. 297 263, 365, 302, 396, 436. People v. Weller, 11 Cal. 49 People V. White, 24 Wend. 535 ... . People's Railroad v. Memphis Railroad, 10 Wall. 50 Petersfleld Case, 3 Dougl. Elect. Cas. 6 Petit v. Rosseau, 15 La. 239 Peyton v. Brent, 3 Cr. C. C. 434 . Philadelphia v. Given, 60 Penn. St. R. 136 . PAGE . 443 313, 482 . 694 266, 306 64, 453 . 664 . 266 . 685 . 431 . 266 . 267 . 319 . 357 . 611 189, 264, 369, 384, . 443 449, 451, 496 . 685 . 694 . ■ . 36 . 113 . 437 . 677, 685 . 364, 370 . 448 267, 390, 401 . 467, 557 . 608, 611 262, 264, 443 . 608, 611 267, 370, 384 . 631 . 401 . 454 , 383, 390, 405, 437 . 306 305, 382, 390, 393, . 685 . 443 . 26 . 395 608, 611 . 309 . 611 XXXVl Table of Oases. Philips, Eex v., 2 Stra. 921 . Philips V. Wickham, 1 Paige 590, 598 Piatt V. People, 29 111. 54, 72 . Pickwood V. Wright, 1 H. Bl. 643 . Pigot, March «., 5 Burr. 2802 Pigott's Case, 2 Cong. Elect. Cas. 463 Pike 1). Megoun, 44 Mo. 492 . Pitman v. Flint, 10 Pick. 509 . Pitt, Bex v., 3 Burr. 1335 Plunkett's Creek ». Pairfleld, 58 Penn. St. R, Pole, Rex v., 7 Mod. 194 Pope, Christ Church ». , 8 Gray 140 Porter, People v., 6 Cal. 26 . Porter, State v., 4 Harrington 556 . Potts, Rail «., 8 Humph. 225 . Powell V. Milbank, 1 T. R. 399 n. . Powell v. Milbank, 2 W. Bl. 851 . Powers V. Reed, 19 Ohio St. R. 189 Pratt «. Hull, 13 Johns. 334 . Preston, Trigg »., 1 Cong. Elect. Cas. 78 Price V. Barber, 13 Leg. Int. 140 . Purviance, McFarland «., 1 Cong. Elect. Cas, Putnam v. Johnson, 10 Mass. 488 . Pyle, Territory v., 1 Oregon 149 . Quackenbush, Morgan v., 22 Barb. 77 Quin, United States v., 3 Am. L. T. Rep. 180 Rabaud v. D'Wolf, 1 Paine 587 . Rail V. Potts, 8 Humph. 225 . Railroad, Mott v., 30 Penn. St. R. 9 Railroad Co., Commonwealth «., 20 Penn. St- Railroad Co., Levering «., 8 W. & S. 463 Ramsay v. Callaway, 15 La. An. 464 Randall, Jones v., Cowp. 37 . Randies, State «., 7 Humph. 9 Ray, Beal «., 17 Ind. 554 Ray, Respublica v., 3 Yeates 66 Raymond, People v., 37 N. Y. 428 Read, Commonwealth «., 3 Ash. 261 Reed v. Bank of Newburgh, 6 Paige 337 Reed, , Commonwealths., 18 Pitts. L. J.- 131 Reed i). Cosden, 1 Cong. Elect. Cas. 353 Reed «. Kneass, 2 Pars. 584 ; 1 Phila. 162 Reed, Powers v., 19 Ohio St. R. 189 Reese, Sinks «., 19 Ohiq St. E. 306 209, 131 R. 518 PAGE . 734 . 283, 447 449, 451', 496 . 569 . 729 . 113 . 196 . 509 . 140 . 541, 544 . 451 . 454 . 685 . 193, 196 . 193 . 610 . 411 383, 502, 556 . 428 . 604 . 106 . 441 . 113, 471 . 319 . 305 64,. 592, 710 . 479 . 193 . 636 . 146 . ' .546 . 313 . 733, 735 . 711 . 685 281, 376, 616 . 694 . 126, 151 ■. 385 . 630, 663 . 413 366, 377, 414, 416 383, 503, 556 114, 384, 493 Table op Cases. xxxvii 7Q 361 Regina v. Benton, 9 Dowl. 1031 . Regina v. Bradley, 3 Ellis & Ellis 634 Regina ». Burnaby, 2 Ld. Raym. 900 Regina v. Coaks, 28 Eng. L. & Eq. 304; Regina v. Guardians, 5 Eng. L. & Eq, Regina ■». Harland, 8 Dowl. 333 . Regina v. Hiorns, 7 Ad. & Ellis 960 ; 3 N. & Regina v. Kendrick, 5 Ad. & Ellis 49 Regina v. Parker, 3 Ad. & Ellis 293 ReicMy v. Maclay, 2 W. & S. 59 . Reily, Huber v., 53 Penn. St. R. 113 Rems, Hulseman «., 41 Penn. St. R. 396 Renick, State «., 37 Mo. 370 . Rennard, Moran v., 3 Brewst. 601 Rennet, Green «., 1 T. R. 783 Respublica v. Cleaver, 4 Yeates 69 Respublica v. Dallas, 3 Yeates 814 Respublica v. Gibbs, 3 Yeates 439 Respublica v. McOlean, 4 Yeates 399 Respublica ». Ray, 3 Yeates 66 Rex V. Bankes, 3 Burr. 1454 Rex V. Barzey, 4 M. & S. 353 Rex «. Blissell, Heywood 360 Rex V. Bridge, 1 M. & S. 76 . Rex v. Cambridge, 3 Burr. 1647 Rex V. Coe, Heywood 361 Rex V. Dawes, 4 Burr. 3033 . Rex V. Foxcroft, 3 Burr. 1017 Rex «. Francis, 3 Ad. & Ellis 49 Rex V. Godwin, 1 Dougl. 383 . Rex V. Hamilton, 7 C. & P. 448 Rex V. Hawkins, 10 East 211 . Rex V. Hill, 2 Ld. Raym. 1415 Rex «. Holland, 4 T. R. 457 . Rex V. Jarvis, 1 Burr. 148 Rex 41. Loxdale, 1 Burr. 447 . Rex V. Mallinson, 2 Burr. 679 Rex ■». Monday, Cowp. 530 . Rex V. Parry, 14 East 549 Rex V. Parry, 6 Ad. & Ellis 810 ; Rex V. Philips, 3 Stra. 931 Rex «. Pitt, 3 Burr. 1335 Rex V. Pole, 7 Mod. 194 . Rex «. Riogers, 3 Campb. 654 Rex «. Sargent, 5 T. R. 466 . Rex V. Smithson, 4 B. & Ad. 861 N. & PAGE . 341 . 367 . 717 B. 406 . . . 151 133, 399 . 341 P. 184 .. . 147 . 551 . 719 . 736 43, 45, 49, 69, 543 236, 314, 454, 633, 654, 663 . 399 . 193 . 345 . 549 . 689 48, 97 . 531 281, 376, 616 . 584 840, 341, 343 . 151 . 147, 151 . 394, 397 . 151 . 145 . 139, 133 . 340 . 149 . 551 148, 151, 411, 414 . 709 . 709 . 77, 539 . 716 . 148, 151 . 148, 151 P. 414 . . . . 145 . 734 . 140 . 451 . 413 . 145 . 841 xxxvm Table of Cases. Eex V. Sparrow, 3 Stra. 1133 . Eex V. Twyning, 3 B. & Aid. 38 Eex V. Wardroper, 4 Burr. 1964 Eex V. Weston, 1 Stra. 633 . Eex V. Wheatman, 1 Dougl. 331 Eex v. Wilkes, 4 Burr. 3537 . Eex V. Wilkes, 3 Wils. 151 . Eex «. Withers, Cowp. 587 ; 3 Burr. 1030 Eeynolds, Cannon »., 5 Ellis & Bl. 301 Eeynolds, Castle v., 10 Watts 53 . Eeynolds, Jennings v., 4 Kansas 110 Eeynolds v. McKinney, 4 Kansas 94 Eeynolds, People v., 5 Oilman 1 Rhoads v. Commonwealth, 15 Penn. St. R. 377 Eice .«. Foster, 4 Harrington 479 Eich V. Eich, 16 Wend. 676 . Eichards, Hunt ■».', 4 Kansas' 549 Eichardson v. Stewart, 4 Binn. 198 Eidgeley, Blair v., 41 Mo. 63 Eidley v. Sherbrook, 8 Cold. 569 Eiker, Bunn «., 4 Johns. 436 Eiley, People v., 15 Cal. 48 . Eisewick v. Davis, 19 Md. 83 Eitt, State »., 16 Am. L. Eeg. 88 Eobb, State v., 17 Ind. 536 . Bobbins «. Bellas, 4 Watts 355 Bobbins, Peavey »., 3 Jones (Law) 339 Robinson, Catlin v., 3 Watts 379 Eobinson, State v., 1 Kansas 17 Eodman, State v., 43 Mo. 356 Eoe, People «., 1 Hill 470 Eogers, Eex v., 2 Campb. 654 EoU, State v., 7 West. L. J. 138 Eooseyelt v. Kellogg, 30 Johns. 308 Root «. Adams, 1 Cong. Elect. Cas. 371 Rosborough, People «., 14 Cal. 180 Rosseau, Petit »., 15 La. 339 Rossett V. Hartley, 7 Ad. & Ellis 553 Rucker, Miller «., 1 Bush 185 Rudd V. Davis, 3 Hill 387 ; 7 Hill 539 . Runk, Farlee «., 3 Cong. Elect. Cas. 87 Rupp, Commonwealth «., 9 Watts 731 Russell, Johnston »., 37 Cal. 670 . Rutherford, Calder v., 3 Brod. & Bing. 303 Rutherford, Fisher v., Bald. 193 . Rutledge, State v., 8 Humph. 32 . Rutter, Turnpike Co. «., 4 S. & R. 6 PAGE . 539 413, 413 . 145 . 734 . 709 . 346 . 380 . 133 . 568 . 566 736, 737 786, 787 . 36 544, 569, 693 3, 313 439, 430 . 113 . 431 . 83 43, 83, 83 734, 735 . 113 . 470 . 451 . 193 . 508 . 193 . 567 . 677 . 306 . 437 . 413 . 'l95 . 470 . 368 667, 685 608, 611 . 340 . 193 438, 430 . 113 . 731 . 736 . 413 . 339 . 616 . 545 Table of Cases. XXXIX St. E. 18 13 Salter v. County of Philadelphia, 1 Phila. 255 Sargent, Eex »., 5 T. R. 466 . Saunders v. Haynes, 13 Cal. 145 Savadge, Davy «., Hob. 87 . . . Saxton, People «., 33 N. Y. 309 . Scarff, Poster s., 15 Ohio St. R. 535 Schemerhom, People »., 19 Barb. 540 . Schenck v. Peay School Controllers, Case of, 6 Phila. 110 School Directors, Williams v., Wright 578 Schuman v. Schuman, 6 Phila. 318 Sehuylldll Navigation Co. ■». Loose, 19 Penn, Scott V. Dufly, 14 Penn. St. R. 18 . Scott, Baston b., 1 Cong. Elect. Cas. 273 Scoville ». Can^eld, 14 Johns. 338 . Scranton Borough Election, 1 Luz. Leg. Obs, Seaman, People «., 5 Denio 409 Searcy «. Grow, 15 Cal. 117 . Sedam ii. Shaffer, 5 W. & S. 539 . Seitz 0. Buffum, 14 Penn. St. R. 69 Settler of Accounts of Passyunk, Case of Sexton, Howard «., 1 Denio 440 Shaffer, Sedam «., 5 W. & S. 539 . Shaftsbury Case, 3 Dougl. Elect. Cas. 150 Sharp, Kerr «., 14 S. & R. 399 Sharpe, Colden «., 1 Cong. Elect. Cas. 369 Shaver, Commonwealth «., 3 W. & S. 338 Shaw, Commonwealth v., 7 Met. 53 Sheeley, State «., 15 Iowa 404 Sheetz's Case Shepherd, Dates »., 3 Stra. 1373 . Sheppard, Gibbons v., 3 Brewst. 1, 3, 130 493, 503, 536, 558, 638. Sheppard, Gibbons «., 65 Penn. St. R. 30, 35, 44 356, 349, 467, 538, 693. Sherban, Commonwealth «., 8 Watts 313 Sherbrook, Ridley «., 3 Cold. 569 . Sheriff, Commonwealth v., 16 S. & R. 304 Sheriff, Commonwealth b., 1 Brewst. 188 Sherwood, State d., 15 Minn. 331 . Shields, Howard «., 16 Ohio St. R. 184 . Shippen, Baring «., 3 Binn. 165 Shirley v. Howard, 3 Chicago Leg. News 330 Simpson, Bailey »., Binns's Just. 498 n. Simpson, Stuart «., 1 Wend. 876 . Sinks V. Reese, 19 Ohio St. R. 306 50, 106, 335, PAGE . 590 . 145 . 150 . 300 . 364, 376 138, 358, 679 . 448 . 678 . 669 . 60 . 544, 693 . 543, 546 . 736 . 876 . 76 356, 450, 455 367, 390, 401 . 491 . 554 . 554 . 531 . 443 . 554 . 895 . 554 . 368 . 134 710, 711 . 711 355, 514, 556 . 845 450, 453, 493, 357, 335, 886, . 551, 737 . 43, 83, 88 . 547 . 105, 193 . 319 336, 378, 454 . 138 . 787 . 381 . 438 114, 381, 493 xl Table of Cases. PAGE Skerrett's Case, 3 Pars. 509 330,353,453 Slack ». Maysville and Lexington Railroad Co., 13 B. Men. 1 . 36 SliTser v. Bank of Pittsburgh, 16 How. 571 549 Small, Commonwealtli v., 36 Penn. St. R. 31 . . 149, 557, 630 Small, State «., 1 Fairf. 109 ., 195 Smith, Boren «., 1 Chicago Leg. News 170 64 Smith ». Bowen, 11 Mod. 330 345 Smith, Catlin ij., 3 S. & R. 367 114, 33l Smith e. City of Janesville, 3 Chicago Leg. News 337 . . 36 Smith, Commonwealth »., 45 Penn. St. R. 59 . . . 374, 467 Smith, Dishon v., 10 Iowa 313 306, 450, 684 Smith ». McCarthy, 56 Penn. St. R. 359 .... 36, 633 Smith, People i),, 51 111. 177 467, 557 Smith, State «., 18 N. H. 91 193 Smith, State v., 14 Wis. 497 150 Smith, "Wilcox »., 5 Wend. 331 443 Smith, Willoughby v., 1 Cong. Elect. Cas. 365 ... . 368 Smithson, Rex«., 4 B. & Ad. 861 341 Smyth ». McMasters, 3 P. A. Browne 183 ... . 734, 736 Smyth, People «., 38 Cal. 31 608,611 Snowden, Commonwealth »., 1 Brewst. 318 104 Snyder ». Andrews, 6 Barb. 48 439 Snyder, Wagonseller v., 7 Watts 343 736 Somerville v. Someryille, 5 Ves. Jr. 750 474 Souders, United States?)., 3 Abbott U. S. Rep. 456 . . 384,616 South Whitehall, North Whitehall «., 3 S. &R. 131 . .' . 531 Souzer, Demeyer v., 6 Wend. 436 438 Spackman v. Byers, 6 S. & R. 385 569 Sparrow, Rex v., 3 Stra. 1133 539 Spear v. Myers, 6 Barb. 445 431 Spiese v. McCoy, 6 W. & S. 485 736 Spragins v. Houghton, 3 111. 377 49, 153 Sprague v. Norway, 31 Cal. 173 450, 453 Springer, Morrison «., 15 Iowa 304, 345 .... 49, 337 Springer, Mytinger«., 3 W. &. S. 405 736 Squires «.Whisken, 3 Campb. 140 783 Stanton «. Lane, 3 Cong. Elect. Cas. 637 655 Starling v. Turner, 3 Lev, 50 ; 1 Vent. 306 379 State V. Adams, 3 Stew. 331, 339 . . 51, 344, 386, 383, 589, 664 State V. Albin, 44 Mo. 346 64 State V. Anderson, Coxe 318 150 State.*. Bailey, 8 Shep. 63 711 State «. Benedict, 15 Minn. 199 677 State ». Bernoudy, 36 Mo. 379 303 State V. Binder, 38 Mo. 450 133 State 1). Boal, 46 Mo. 538 150, 664 Table of Cases. xli PAGE State «. Bond, 38 Mo, 435 . 64 State «. Boyett, 10 Ired. 836 704 State, Byrne «., 12 Wis. 519 195 State ®. Cavers, 33 Iowa 843 306 State V. Churchill, 15 Minn. 455 319 State V. Clerk of Passaic Co., 1 Dutch. 354 330 State «. Cobb, 3 Kansas 33 677 State «. Cohoon, 13 Ired. 178 704 State «. Conrades, 45 Mo. 45 669 State V. Cook, 41 Mo. 593 64 State «. Daniels, 44 N. H. 383 193, 470 State, Davis®., 7 Md. 161 40 State D. Douglass, 7 Clarke 413 . . , . . . 710, 711 State, Douglass v., 31 Ind. 479 611 State «. Ellvirood, 13 Wis. 553 266 State V. Fitzpatrick, 4 Rhode Island 369 710 State V. Frest, 4 Harrington 558 113 State, Geebrick »., 5 Iowa 491 36 State «. Giles, 1 Chand. 113 150 State V. Glover, 41 Mo. 339 87, 97 State V. Goetze, 33 Wis. 863 684 State «. Goldthwaite, 16 Wis. 146 366 State, Gray «., 4 Ohio 363 50 State, Gray »., 3 Harrington 76 16,19 State 11. Harker, 4 Harrington 559 616 State ». Harrison, 38 Mo. 540 306 State V. Hart, 6 Jones (Law) 389 703 State «. Hascall, 6 N. H. 853 448 State V. Heighland, 41 Mo. 388 87, 97 State V. Haynorth, 8 Sneed 64 711 State B. Hihnantel, 31 Wis. 566 64, 453 State «. Hilmantel, 33 Wis. 433 377, 384 State V. Howard County, 41 Mo. 347 581 State V. Jenkins, 43 Mo. 361 677 State V. Johnson, 17 Ark. 407 581 State «. Jones, 19 Ind. 856 306, 450, 684 State, Jones®., 1 Kansas 379 450 State ■». Judge of Ninth Judicial Circuit, 13 Ala. 805 113, 367, 865, 370. State ®. Justices of Middlesex, Coxe 244 557 State 1). Lehre, 7 Rich. 334 454 State V. McDonald, 4 Harrington 555 193, 195 State, McGuire »., 7 Humph. 54 703 State «. Macomber, 7 Rhode Island 349 703 State, MaddoxB., 33 Ind. Ill 479 State «. Marlow, 15 Ohio St. R. 114 663 xlii Table of Cases. State V. Marshall, 45 N. H. 281 State, Mayor and Common Council of Baltimore v. Stale V. Messmore, 14 Wis. 115 State V. Minnick, 15 Iowa 123 State «. Moore, 3 Dutch. 105 . State, Morris «., 7 Blackf. 607 State ■!!. Noyes, 10 Fost. 279 State v. Olin, 33 Wis. 309 State ». O'Neill, 34 Wis. 149 State V. Orvis, 20 Wis. 335 State, Pearce v., 1 Sneed 637 State V. Porter, 4 Harrington 556 State V. Eandles, 7 Humph. 9 State ». Renick, 37 Mo. 270 . State ». Ritt, 16 Am. L. Reg. 88 State «. Robb, 17 Ind. 536 State V. Robinson, 1 Kansas 17 State 1). Rodman, 48 Mo. 256 . State V. Roll, 7 West. L. J. 138 State V. Rutledge, 8 Humph. 32 State ». Sheeley, 15 Iowa 404 State ». Sherwood, 15 Minn. 221 State ». Small, 1 Fairf. 109 . State ®. Smith, 18 N. H. 91 . State V. Smith, 14 Wis. 497 . States. Staten, 6 Cold. 233 . State 1). Steers, 44 Mo. 223 State, Steinwehr v., 5 Sneed 586 State V. Stumpf, 31 Wis. 579 . State v. Stumpf, 23 Wis. 630 . State V. Symonds, 57 Maine 148 State V. Taylor, 15 Ohio St. R. 137 State ®. The Governor, 1 Dutch. 331, 348 State V. Tierney, 23 Wis. 430 . State ». Tudor, 5 Day 329 State «. Tweed, 3 Dutch. Ill State 1). Warren, 1 Houst. 39 . State V. Williams, 35 Maine 561 State V. Woodson, 41 Mo. 227 Staten, State v., 6 Cold. 233 . Stearns, Blanchard v., 5 Met. 298 Steel «. Martin, 5 West. Jur. 33 Steele «. Steele, 4 Dall. 409 . Steers, State v., 44 Mo. 233 . Steiner v. Coxe, 4 Penn. St. R. 13 Steinwehr v. State, 5 Sneed 586 15 Md. PAGE 711 459 41 303 711 705 704 26 877, 413 36 684 710 198, 196 711 399 451 193 677 806 195 616 711 319 195 193 150 35, 43, 196 800 704 453 64, 453 81 677, 679 305, 319 367 388, 384 710 313, 320 704 97 35, 43, 196 194, 195 336 551 300 508 704 Table of Cases. xliii Stephens «. Cowan, 6 Watts 513 . Stevens, People «., 5 Hill 616 Stevenson v. Lawrence, 1 Brewst. 136, 131 Steward v. Jefferson, 3 Harrington 335 . Stewart «. Commonwealth, 4 S. & K. 194 Stewart, Fitzgerald v., 53 Penn. St. E. 343 Stewart v. Poster, 3 Binn. 110 Stewart v. Hayes, 3 Chicago Leg. News 117 Stewart, Richardson v., 4 Binn. 198 Stockton's Case, Cong. Globe, .1865-6, p. 1635 Stoever b. Stoever, 9 S. & R. 454 Stone, Fury «., 3 Call. 184 . Stone, Hyde v., 9 Cow. 230 . Strauss, Sudbury v., 31 Pick. 148 Street v. Commonwealth, 6 W. & S. 309 Stryker v. Kelly, 7 Hill 9 Stuart ■». Simpson, 1 Wend. 376 Stukely, Arris 8., 3 Mod. 360 . Stumpf, State «., 31 Wis. 579 . Stumpf, State «., 33 Wis. 630 . Sudbury v. Strauss, 31 Pick. 148 Supervisors of Sacramento County, Christy «., 39 Cal. Sweeny v. Delany, 1 Penn. St. R. 330 Swift V. Chamberlain, 3 Conn. 537 . Swift, Commonwealth v., 4 Whart. 186 Sykes, Gilbert v., 16 East 150 • Symonds, State v., 57 Maine 148 . Taft, Hendesty ®., 33 Md. 513 Talbot V. Dent,, 9 B. Mon. 536 Tanner v. King, 11 La. 175 Tappenden, Harman v., 1 East 555 Tarlton «. Fisher, 3 Dougl. 646 Taylor «. Griswold, 2 Green 333 . Taylor, McMartin »., 3 Barb. 356 . Taylor, State v., 15 Ohio St. R. 137 Taylor v. Taylor, 10 Minn. 107 Ten Eyck, Hugunin v., 1 Cong. Elect. Cas. 501 Territory v. Pyle, 1 Oregon 149 Thacker «. Hawk, 11 Ohio 376 Thayer v. Greenbank, 1 Brewst. 189 Thompson, Blackwell v., 3 Stew. & Port. 348 Thompson v. Circuit Judge of Mobile, 9 Ala. Thompson v. Bwing, 1 Brewst. 67, 103-3 50, 111, 134, 351, 273, 277, 281, 305, 334, 349, 359, 360, 365, 415, 467, 501, 515, 566, 581. PAGE . 566 363, 364, 443 . 515, 527 16, 18 . 716 . 549 . 189, 457 . 151 . 431 . 313 . 554 . 569 . 430 . 454 . 464, 539 . 443 . 438 . 607, 610 . 453 . 64, 453 . .454 . 694 . 339 . 277 . 671 738, 730, 733 . 81 . 64 . 36 . 474 190, 191 . 379 383, 284 . 438 677, 679 336, 450 368 319 50 503 704 306 336, 337, 453, 453, 306, 449, xliv Table os Cases, Thompson, Ewing i>., 43 Penn. St. R. 377 Thompgon, Miller «., 3 Cong. Elect. Oas. 118 Tieman, People v., 30 Barb. 193 . Tierney, State v., 23 Wis. 430 Tioga V. Lawrence, 2 Watts 43 Tisdale, People «., 1 Dougl. 59 Tomb, Cambria Iron Co. v., 48 Penn. St. R. 388 Town of Pairbury, People »., 51 111. 149 Tranab, Freeman o., 13 C. B. 413 . Trego, Kerr v., 47 Penn. St. R. 293 Trigg V. Preston, 1 Cong. Elect. Cas. 78 Trumbull's Case, 3 Cong. Elect. Cas. 618 Trustees of Erie ®. Erie, 31 Penn. St. R. 515 Tudor, State v., 5 Day 339 .. . Turner v. Baylies, 1 Cong. Elect. Cas. 234 Turner, Starling v., 2 Lev. 50; 1 Vent. 306 Tumey «. Marshall, 3 Cong. Elect. Cas. 167 Turnpike Co., People «., 23 Wend. 338 . Turnpike Co. v. Rutter, 4 S. & R. 6 Tuthill, People v., 31 N. Y. 550 . Tweed, State «., 3 Dutch. Ill Twyning, Rex «., 3 B. & Aid. 386 Udny «. Udny, L. R. 1 H. L. Sc. 441 . United States v. Addison, 6 Wall. 291 . United States v. Almeida, Whart. Prec. § 1061 United States v. Amedy, 11 Wheat. 408 United States, Buckwalter «., 11 S. & R. 193 United States v. Ballard, 13 Int. R. Rec. 195 United States v. Furlong, 5 Wheat. 184 . United States v. Gillis, 2 Cranch C. C. 44 United States v. Murphy, 16 Pet. 203 . United States «. Quinn, 3 Am. L. T. Rep. 180 United States v. Souders, 2 Abbott U. S. Rep. 456 United States, The Aurora v., 7, Cranch 382 United States v. The Penelope, 3 Pet. Ad. 450 United States v. Wilson, Bald. 78 . Usher v. Dansey, 4 M. & S. 94 Utica Insurance Co., Attorney-General v., 3 Johns PAGE 565, 573, 611 . 113 608, 611 . 267 . 544 367, 384 . 548 . 631 . 567 819, 623, 630, 633 . 604 . 51 . 508 283, 384 . 368 . 279 . 51 . 401 . 554 . 454 . 710 413, 413 . 479 . 611 . 716 . 485' . 76 . 710 . 733 . 198 . 374 593, 710 884, 616 . 16 470, 474 . 374 . 568 Ch 64, 247, Vail, People v., 30 Wend. 13 363, 265, 305, 813, 882, 888, 390, 405, 437 Vallandigham v. Campbell, 41 Cong. Globe 2317 . . . .387 Van Cleve, People «., 1 Mich. 362 306 Vandever, Byington v. , 3 Cong. Elect. Cas. 895 .... 655 Van Ness's Case, 1 Cong. Elect. Cas. 132 655 Table of Cases. xlv Van Slyck, People «., 4 Cow. 297, 323 396, 436. Van Steenbergh. «. Kortz, 10 Johns. 167 Van TUennen, Faggot v., Gas. Pr. C. P. 75 Vischer «. Yates, 11 Johns. 23 PAGE 263, 265, 302, 383, 390, 893, Wagonseller v. Snyder, 7 "Watts 343 Waldron, Jenkins «., 11 Johns. 114 Walker, Jackson v. , 5 Hill 37 Walkhouse «. Derwent, 1 W. Bl. 19 Wallace, Commonwealth v., Thach. Cr. Gas. 592 Wallington v. Kneass, 15 Penn. St. R. 313 Walton, Auld «., 13 La. An. 129 . Walton, Ex parte, 2 Whart. 501 . Ward, Kilham v., 2 Mass. 336 Wardroper, Eex e., 4 Burr. 1694 . Warren, State v., 1 Houst. 39 Watt, Diamond v., Leg. Doc. 1870, p. 1061 Weaver v. Given, 1 Brewst. 140 337, 335, 355, 359, Weckerly v. Geyer, 11 S. & R. 35 . Weddell, Peck «., 17 Ohio St. R. 371 Weeks ». ElUs, 3 Barb. 330 . Weigley v. Weir, 7 S. & R. 310 . Weir, Weigley «., 7 B. & R. 310 . Weller, People v., 11 Gal. 49 . Western, Rex v., 1 Stra. 633 . West Philadelphia, Borough of, 5 W. & S. 281, 288 Wheatman, Rex «., 1 Dougl. 331 . White, Ashby v., 2 Ld. Raym. 938 ; 1 Bro. P. G. 45 193,279,400. White V. Brown, 1 Wall. Jr. 217 . White, People «., 24 Wend. 535 . Whisken, Squires®., 8 Campb. 140 Whiting, Williams®., 11 Mass. 424 Wickham, Philips v., 1 Paige 590, 598 Wiggins, Ex parte, 1 Bank. Reg. 90 Wilcox V. Magruder, 7 West. L. J. 507 Wilcox «. Smith, 5 Wend. 331 Wilkes, Rex v., 4 Burr. 2537 Wilkes, Rex v., 3 Wils. 151 . Williams v. Bowers, 1 Cong. Elect. Gas. 263 Williams v. East India Co., 3 East 192 Williams ®. School Directors, Wright 578 Williams, State i>., 35 Maine 561 . Williams i). Whiting, 11 Mass. 434 Williams, Wilson®., 14 Wend. 146 . 443 . 345 734, 735 . 736 190, 279, 401 . 613 . 739 . 703 . 556 . 64 . 547 36, 53 . 145 313, 330 . 335 415, 449, 492, 501 . 192 623, 663 438, 443 . 554 . 554 . 685 . 724 34, 457 . 709 34, 90, 190, 191, . 470 . 443 . 733 . 107 383, 447 . 479 . 453 . 448 . 346 . 380 . 368 411, 413 . 50 . 704 . 107 . 428 xlvi Table of Cases. ■Williamson's Case, 26 Penn. St. R. 9 Williamson v. Lewis, 39 Penn. St. R. 9 Willoughby «. Smith, 1 Cong. Elect. Gas. 265 Wilson, Adams*., 1 Cong. Elect. Cas. 373 Wilson, Crawford v., 4 Barb. 504 . Wilson, Elbin o., 33 Md. 135 Wilson, Johnston »., 2 N. H. 202 . Wilson, United States «., Bald. 78 Wilson V. Williams, 14 Wend. 146 Wing, Biddies., 1 Cong. Elect. Cas. 504 Withers, Rex v., Cowp. 537; 3 Burr. 1020 Woelper, Commonwealth «., 3 S. & R. 29, 43 Wolbert's Case Wood, Caster s.. Bald. 289 . Wood, Howard v., 2 Lev. 245 ; 2 Jon. 126 Woodruff, McNeely v., 1 Green 352 Woods V. Ingersoll, 1 Binn. 146 Woodson, Stale v., 41 Mo. 227 Wooldridge, Adams «., 4 111. 255 . Wootan, Basket «., 1 N. & M. 180 Worcester Case, 3 Dougl. Elect. Cas. 129 Wright V. Fisher, 1 Cong. Elect. Cas. 518 Wright, Pickwood i)., 1 H. Bl. 648 Yates, Vischer D., 11 Johns. -23 y eates, Knowles v. , 81 Cal. 82 York County, Bacon v., 26 Maine 491 . York County Election, Journ. Assembly 310- Young, Jackson v., 5 Cow. 269 Zell's Case, 2 Cong. Elect. Cas. 92 Zephon's Case, 8 W. & S. 882 PASB . 530 . 530 . 268 . 413 . 429, 430 . 195, 423 . 678 . 374 . 428 . 113 . 133 201, 313, 266 . 868 . 839 . 610 . 454 . 508 . 97 . 737 . 735 . 895 . 268 . 569 15 . 734, 735 257, 451, 503 . 306 . 97 . 443 . 655 . 233 LEADING CASES ON THE ^ LAW OF ELECTIONS. ELECTION CASES. Rice v. Fostee. In the Court of Errors and Appeals of Delaware. JUNE TERM 1847. (Eepokted 4 Harrington 479.) [ What questions may be submitted to a popular vote.^ The people have no legislative power in their primary assemblies ; they have divested themselves of it by the constitution, and can only resume it in the forms therein prescribed, or by revolution. The general assembly cannot delegate the power of making laws to the people at large ; nor can they make it to depend on the assent or approval of any other body. Case Stated. This was an action of debt upon a lease from Edward L. Rice to John Foster, of a tavern-house in "Wilmington, at a yearly rent of $700, with a proviso that the rent should be only $500, " if, by the law of this state, the court of general sessions have not, at the May Term 1847, any lawful authority to recommend to the governor, any person to keep a public-house or tavern for the sale of intoxicating liquors, within the county of New Castle." One quarter's rent was due, by the terms of the lease, on the 8th of May 1847 ; the defendant paid $125, and refused to pay any more ; and this suit was brought for the residue. The substance of the act of 1847, the validity of which was the question in the cause, is stated in the opinion of the court. J. A. Bayard, Wales and Clayton, for the plaintiff. Smithers, Bradford and Layton, for the defendant. 4 . EicE V. Foster. (What questions may be submitted to a popular vote.) Booth, C. J. The question arising upon the statement of facts submitted to the court is, whether the judges of the court of general sessions of the peace and gaol delivery have any lawful authority to recommend to the governor of the state, any person or persons to keep an inn, tavern or public house of entertainment, for the sale of intoxi- cating liquors, within the county of 'New Castle. At a very early period of our colonial government, licenses to keep inns, taverns and public houses of entertainment, were granted by the governor, upon the recommendation of the judges of the court of general sessions of the peace and gaol delivery; spirituous and vinous liquors were retailed by virtue of this license, although not mentioned in its words. "With a few slight modifications, the law on this subject has continued in force to the present time. The legislature of this state, at their late session, passed an act, on the 19th day of February last, authorizing the people, in their several counties, on the first Tuesday of April 1847, to decide, by ballot, whether the retailing of intoxicating liquors should be permitted among them. If a majority of votes in any county, at such election, was for "no license," by the terms of the act, the retailing of intoxicating liquors is prohibited within such county ; and the judges of the court of general sessions of the peace and gaol delivery have no lawful authority to recommend any person for a license to keep an inn, tavern or public house of entertainment; if a majority of votes was for "license," the law continues in force, and licenses are to be granted as heretofore. The question, then, depends on the validity of the act of the 19th of February 1847 (10 Vol. 178); and if valid, on the result of the popular vote in New Castle county, at the election held on the first Tuesday of April last. Admitting, for the sake of the argument (but it is denied by a majority of this court), that the alleged re- turns are properly authenticated, and aflbrd sufficient legal evidence that a majority of the votes in New Castle ErcB V. Foster. 5 (What questions may be submitted to a popular vote. ) county was against licensing the retailing of intoxicating liquors; then the important question which has been argued in this cause arises — whether the act of the 19th of February is unconstitutional. The proposition that an act of the legislature is not un- constitutional, unless it contravenes some express provision of the constitution, is, in the opinion of the court, unten- able. The nature and spirit of our republican form of government ; the purpose for which the constitution was formed, which is, to protect life, liberty, reputation and property, and the right of all men to attain objects suit- able to their condition without injury by one to another ; to secure the impartial administration of justice; and generally, the peace, safety and happiness of society ; have established limits to the exercise of legislative power, beyond which it cannot constitutionally pass. An act of the legislature directly repugnant to the nature and spirit of our form of government, or destructive of any of the great ends of the constitution, is contrary to its true intent and meaning; and can have no more obligatory force, than when it opposes some express prohibition contained in that instrument. It is irrational, to maintain that such an act is a law, when it defeats the very object and intention of granting legislative power. Therefore, an act, such as that mentioned in the argument, to make a man a judge in his own cause, would not be valid; be- cause it never was the intention of the constitution to vest such power in the legislature, the exercise of which violates the plainest principles of natural justice. So also, an act is void, if it palpably violates the principles and spirit of the constitution, or tends to subvert our republi- can form of government; of this character, it is con- tended, is the act of the legislature of the 19th of February 1847. The powers of government in the United States are derived from the people, who are the origin and source of sovereign authority. The framers of the constitution of 6 ElCB V. TOSTER. (What questions may be submitted to a popular vote.) the United States, and of the first constitution of this state, were men of wisdom, experience, disinterested pa- triotism, and versed in the science of government. They had been taught by the lessons of history, that equal, and indeed greater, dangers resulted from a pure democracy, than from an absolute monarchy: each leads to despotism. Wherever the power of making laws, which is the supreme power in a state, has been exercised directly by the people, under any system of polity, and not by representation, civil liberty has been overthrown. Popular rights and universal suffrage, the favorite theme of every demagogue, afford, without constitutional control, or a restraining power, no security to the rights of individuals, or to the permanent peace and safety of society. In every government founded on popular will, the peo- ple, although intending to do right, are the subjects of im- pulse and passion ; and have been betrayed into acts of folly, rashness and enormity, by the flattery, deception and influence of demagogues. A triumphant majority op- presses the minority; each contending faction, when it obtains the supremacy, tramples on the rights of the weaker; the great aim and objects of civil government are prostrated, amidst tumult, violence and anarchy; and those pretended patriots, abounding in all ages, who com- mence their political career as the disinterested friends of the people, terminate it, by becoming their tyrants and oppressors. History attests the fact, that excesses of deeper atrocity have been committed by a vindictive dominant party, acting in the name of the people, than by any single despot. In modern times, the scenes of blood- shed and horror enacted by the democracy of revolutionary ' France, in the days of her short-lived, misnamed republic, shocked the friends of rational liberty throughout the civilized world ; there, in the midst of the most refined and polished nation of Europe, the guillotine dispensed with the forms of law, as unmeaning pageants; and under the capricious mandates of popular frenzy, running EiCB V. Foster. 7 (What questions may be submitted to a popular vote. ) wild in pursuit of the phantom of a false, licentious liberty, "suspicion filled their prisons, and massacre was their gaol delivery."* In the convention of 1787 which formed the constitu- tion of the United States, the spirit of insubordination, and the tendency to a democracy, in many parts of our country, were viewed as unfavorable auguries in regard both to the adoption of the constitution and its perpetuity. The members most tenacious of republicanism were as loud as any in declaiming against the vices of democracy. Mr. Gerry of Massachusetts, the friend and associate of Mr. Jefferson, thought it " the worst of all political evils." The necessity of guarding against its tendencies, in order to obtain stability and permanence in our government, was acknowledged by all ; even the propriety of electing, by an immediate vote of the people, the first branch of the national legislature, was seriously questioned by some of the ablest members and warmest advocates of a repub- lican form of government. Mr. Sherman of Connecticut opposed it, on the ground that the people were constantly liable to be misled ; and he insisted, that the election ought to be by the state legislatures. Mr. Gerry remarked, that "he did not like the election by the people;" he said, "the evils we experience flow from the excess of demo- cracy ; the people do not want virtue, but are the dupes of pretended patriots." Mr. Madison, although he con- sidered "the popular election of one branch of the national legislature, as essential to every plan of free government, was an advocate for the policy of refining the popular ap- pointments by successive filtrations." Mr. Edmund Ran- dolph of Virginia observed, " that the object was, to pro- vide a cure for the evils under which the United States * The reign of the Commune, in Paris, in the year 1871, exceeded, if possible, in atrocity, the excesses of the first revolution, and dwarfed the Eeign of Terror almost into insignificance. A sad spectacle, indeed, of the abyss into which a highly civilized people may fall headlong, who have thrown aside the restraints of the Christian religion, and abandoned themselves to the pursuit of a false social theory I 8 E,iCB V. Foster. (What questions may be submitted to a popular vote.) labored; that in tracing these evils to their origin, every man found it in the turbulence and follies of democracy; that some check, therefore, was to be sought for, against this tendency of our governments ; and that a good senate seemed most likely to answer the purpose." In the debates on the federal constitution in the Vir- ginia convention, Mr. Madison, always the advocate of popular rights, subject to the wholesome restraints of law, remarked, "that turbulence, violence and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions ; and that these, in republics, more frequently than any other cause, have produced despotism." "If," he observes, "we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes ; if we consider the peculiar situation of the United States, and go to the sources of that diversity of sentiment which pervades its inhabitants, we shall find great danger to fear that the same causes may terminate here in the same fatal effects which they produced in those republics." To guard against these dangers, and the evil tendencies of a democracy, our republican government was instituted, by the consent of the people. The characteristic which dis- tinguishes it from the miscalled republics of ancient and modern times, is, that none of the powers of sovereignty are exercised by the people ; but all of them, by separate, co-ordinate branches of government, in whom these powers are vested by the constitution. These co-ordinate branches are intended to operate as balances, checks and restraints, not only upon each other, but upon the people themselves; to guard them against their own rashness, precipitancy and misguided zeal ; and to protect the minority against the injustice of the majority. The constitution of the state of Delaware begins by as- serting the great principles on which it is founded ; and the aim and object of establishing our form of government. The first article contains a declaration of those inherent I EicB V. Foster. -9 (What questions may be submitted to a popular vote.) rights which belong to every individual in society; of certain restrictions imposed on the legislative, executive and judicial power; and of the right of the citizens to meet together in an orderly manner, and to apply to per- sons entrusted with the powers of government, for redress of grievances, or other proper purposes, by petition, re- monstrance and address. Most of the matters mentioned in the first article, are merely declaratory of the doctrines of the common law on the same subjects, formerly affirmed by Magna Charta in the year 1215, and afterwards asserted by the Bill of Rights in 1688, as the undoubted rights and liberties of the people of that country whence we have derived our language and literature, the Christian religion, and the common law. The same article of our constitu- tion concludes with a declaration, in the name of the peo- ple, that everything contained in that article is reserved by them out of the general powers of government therein- after granted. All powers, therefore, not reserved, are surrendered by the people to those entrusted with the powers of government, to be exercised only in accordance with the principles and design of the constitution, and the genius of our republican system. The legislative, executive and judicial powers compose the sovereign power of a state. The people of the state of Delaware have vested the legislative power in a general assembly, consisting of a senate and house of representa- tives; the supreme executive power of the state, in a governor; and the judicial power, in the several courts mentioned in the sixth article. The sovereign power, therefore, of this state resides with the legislative, execu- tive and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it ; to do so, would be an infraction of the constitution, and a dissolution of the government ; nor can they interfere with the exercise of any part of the sove- reign power, except by petition, remonstrance or address. They have the power to change or alter the constitution ; 10 Rice v. Foster. (What questions may be submitted to a popular vote. ) but this can be done only in the mode prescribed by the instrument itself; the attempt to do so, in any other mode, is revolutionary. And although the people have the power, in conformity with its provisions, to alter the constitution, under no circumstances can they, so long as the constitu- tion of the United States remains the paramount law of the land, establish a democracy, or any other than a repub- lican form of government. It is equally clear, that neither the legislative, executive nor judicial departments, separately, nor all combined, can devolve on the people, the exercise of any part of the sovereign power with which each is- invested. The as- sumption of a power to do so, would be usurpation ; the department arrogating it, would elevate itself above the constitution ; overturn the foundation on which its own authority rests ; demolish the whole frame and texture of our republican form of government, and prostrate every- thing to the worst species of tyranny and despotism, the ever-varying will of an irresponsible multitude. The powers of government are trusts of the highest impor- tance; on the faithful and proper exercise of which, depend the welfare and happiness of society. These trusts must be exercised in strict conformity with the spirit and intention of the constitution, by those with whom they are deposited ; and in no case whatever, can they be transferred or delegated to any other body or persons; not even to the whole people of the state, and still less, to the people of a county. It is a plain proposition of law, that a power or authority vested in one or more persons to act for others, involving, in its exercise, judgment and discretion, is a trust and confidence reposed in the party, which cannot be trans- ferred or delegated. The making of laws is the highest act of sovereignty that can be performed in a free nation ; and therefore, the legislative power may be truly said to be the supreme power of a state. Its exercise requires superior intellectual faculties, improved by study and E.ICB V. Foster. 11 (What questions may be submitted to a popular vote.) experience ; although it seems to be a common notion with many pretended advocates of popular rights, at the present day, that every man is instinctively fitted to be a member of the legislature. If the legislative functions can be transferred or delegated to the people, so can the executive or judicial power. The absurd spectacle of a governor re- ferring it to a popular vote, whether a criminal, convicted of a capital offence, should be pardoned or executed, would be the subject of universal ridicule*; and were a court of justice, instead of deciding a case themselves, to direct the prothonotary to enter judgment for the plaintiff or de- fendant, according to the popular vote of a county, the community would be disgusted with the folly, injustice and iniquity of the proceeding. All will admit that, in such cases, the people are totally incompetent to decide correctly. Equally incompetent are /they to exercise, with discernment and discretion, collectively, or by means of the ballot-box, the power of legislation; because, under such circumstances, passion and prejudice incapacitate them for deliberation ; and the tricks of demagogues, excited feelings, party animosities and the corrupting influences always brought to bear upon popular elections, would banish reason, reflection and judgment. If the delegation of the legislative power of a state to the people of a county, to make laws through the medium of a ballot-box, involving in it an abandonment by the legislature of the trust reposed in them, which they- have sworn to execute with fidelity, does not seem to many persons to be destructive of the constitution, and to lead to all the dangers of a democracy, it can be only because it is presented under the specious appearance of a profound deference and devotion to the popular will, and because its destructive tendencies are clouded and obscured by the incense of adulation offered to the majesty of the people. The question then arises, whether the act of the 19th of February last, transfers or delegates legislative power. If it does, it is unconstitutional. 12 Rice v. Foster. ("What questions may be submitted to a popular vote.) The legislature, at their late session, were urged by numerous petitions, signed by a large number of very respectable citizens, to refer it to the people to decide, whether the laws licensing the sale of intoxicating liquors should be repealed. If the members of the legislature, by the convictions of their own judgment, were assured that the sad evils of intemperance flowed from the existence of these laws, it was their duty to repeal them ; or to in- troduce such modificd.tions as might destroy their baneful influence ; this course was required of them, although the will of the constituents of many of the members might have been opposed to it. The doctrine of the common law is, that a member of a legislative body, although elected by a particular county or district, is bound, in the performance of his functions, to act, not merely for the benefit of his own constituents, but for the whole state. The opinions and will of his constituents ought always to command the most respectful attention; but if clearly opposed to his deliberate judgment, to the principles of the constitution, to the dictates of sound morality, or to the public welfare, as an honest and upright man, he ought not to obey them. " The representative," says Mr. Burke, " owes to his constituents, not only his industry, but his judgment ; and he betrays, instead of serving them, if he sacrifices it to their opinion." Our legislature, acting with the best intentions, and following the precedents set by the legislatures of other states, the constitutionality of which had never been brought to the test of a legal de- cision, declined the responsibility which it was their duty to assume ; and thus devolved the performance of their trust on the people of each county ; in order that a ma- jority, on whom no responsibility rested, might decide a question which none had the authority to decide, but the legislature. The laws licensing the sale of spirituous and vinous liquors are valid laws ; and they must remain in force, until repealed or modified by the regular and constitu- EiCB V. Foster. 13 ("What questions may be submitted to a popular vote.) tional exercise of the legislative power; by a law passed by the senate and house of representatives in general assembly met; No such law has been, or was intended to be passed by the legislature ; they purposely avoided it. They merely left the subject to the people of each county, to decide by ballot, whether the license laws should be re- pealed or not, within such a county ; and until such de- cision should be made by a majority of the legal voters, the laws were to remain in full force. The people of each county were to act on the subject, and not the legislature ; the license laws were to be repealed in a county, not by the will of the legislature, but by the will of a majority of the citizens who voted in such county, although it might be against the will of a majority of the citizens of the state; by the exercise of legislative power by the people of a county, which could not be done by the people of the state ; by a law (falsely so called) enacted and passed through the medium of ballot-boxes, and not a law en- acted by the senate and house of representatives of the State of Delaware in general assembly. The design and true character of the act of the 19th of February last, are, to confer the functions of the legislature of the state upon the people of a county ; to give them the m^ans of exercising legislative power, by authorizing them to decide by their votes, whether the retailing of intoxicating liquors should thereafter be lawful in their county. A law when passed by the legislature, is a complete, positive and absolute law in itself, deriving its authority from the legislature ; and not depending for the enactment of its provisions, upon any other tribunal, body or persons. It may be limited to expire at a certain period ; or not to go into operation until a future time, or the happening of a contingency, or some future event ; or until some con- dition be performed. Of this description are many of the laws of the general government respecting duties and im- posts; and laws of our own state respecting private cor- porations ; which latter are not to operate until some con- 14 EicE V. Foster. (What questions may be submitted to a popular vote.) dition be performed, or the assent of the corporators be given ; because a private incorporation is a contract be- tween the state and the corporators, and therefore, the legislature cannot compel persons to become an incorpo- rated body; or, against their consent, impair, alter or repeal the rights and privileges conferred by the charter. All such laws are complete and positive in themselves, when they pass from the hands of the legislature, and are not to become laws by the creative power of other persons. But the legislature are invested with no power to pass an act, which is not a law in itself when passed, and has no force or authority as such, and is not to become or be a law, until it shall have been created and established by the will and act of some other persons or body, by whose will also existing laws are to be repealed, or altered and supplied. The act of the 19th of February 1847, is of this character; in a legal sense, it is not a law; it is not com- plete and positive in itself; it is not a rule prescribed by the supreme power of the state to its citizens, enforcing some duty or prohibiting some act ; but was to become a rule only when enacted or sanctioned by the popular vote of a county ; and then to be a rule prescribed, not by the constitutional legislative power of the state, but by the power of the majority in a county over the minority. Excepting the 5th section, the act of February last, in effect, is in the nature of a bill prepared and presented by the legislature of the state to the people of each county to be enacted or rejected by them. It contains, in sub- stance, three propositions: — 1. That the court of general sessions of the peace and gaol delivery shall not recommend any person or persons for licenses to sell intoxicating liquors ; that the retailing of them shall be prohibited as a nuisance, except when sold for medicinal or sacramental purposes, or to be used in the arts. 2. That it shall be the duty of the same court to license a competent number of persons to keep temperance houses, Rice v. Foster. 15 (What questions may be submitted to a popular vote.) without the sale of intoxicating liquors ; and a sufficient number of storekeepers, physicians and apothecaries to sell spirituous and vinous liquors for medicinal and sacra- mental purposes, and to be used in the arts, but for no other purposes whatsoever. 3. That every person or persons who shall sell or deliver any intoxicating liquors, except for the purposes before mentioned, shall be liable to indictment, and on convic- tion be fined, in not less than $20, nor more than $100. The people are called upon to decide the matter by bal- lot, at the usual places of holding elections ; on each ballot is to be written or printed the words "license," or "no license ;" if there be a majority of votes for " no license," the several propositions contained in the act are, by such majority, enacted into a law, and the license laws are re- pealed; if a majority of votes be for "license," the propo- sitions are rejected, and the license laws continue in force. There is no substantial difierence between this, and the case of a bill introduced into either branch of the legisla- ture; in the latter, the bill becomes a law by a majority of the votes of the members of each house ; in the former, by a majority of the votes of the people of a county, at an election. But the act of the 19th of February, delegates the legis- lative power of the state to be exercised by the people of each' county, not only in a single instance, but year after year. By the 5th section, whenever one-fourth in number of the legal voters at the last preceding election in any county, shall request the levy court to present the ques- tion of " license" or " no license," again to the people, it becomes the duty of the levy court to give public notice thereof; and the question is to be again decided by ballot, on the next succeeding first Tuesday in April ; and so on, in every year in which such Avritten request shall be made. By the constitution of this state, the legislative power cannot be called into action oftener than once in every two years, except by the governor upon extraordinary 16 Rice v. Foster. (What questions may be submitted to a popular vote.) occasions ; and then to be exercised only by a senate and house of representatives ; but the 5th section of this act, transcending the constitution, authorizes a minority of voters in each county to call into action every year, the legislative power on this subject, to be exercised by the people of such county through a ballot-box; thus, actually annulling the constitution, and subverting our form of government. Although such absurd and pernicious con- sequences are the result, the section referred to is strictly in accordance with the principle and intention of the act itself, which proceeds on the assumption, that as legislar tive power is derived from the people, it may be trans- ferred back to, resumed and be exercised by them ; and that a law which they make, in the exercise of such power, is valid and binding. It is a legal maxim, that the same authority and strength which create an obliga- tion, are required to annul or dissolve it; therefore, if such a misnamed law be valid, it cannot be suspended, changed or repealed, except in the manner in which it was made, and by the same authority, that is, by means of a popular election, and by a majority of persons voting at such election. But it is argued, that the act of February last does not transfer or delegate legislative power ; that the legislature have the right to pass conditional laws, which are to commence their operation or to be void upon the happening of some future event, or some contingency ; that this act is one of that character, and does not differ in principle from several acts of congress and statutes of our own state, whose validity has been affirmed by judicial decision. By way of illustration we are referred to the cases of The Aurora v. United States, 7 Cranch 382 ; Steward v. Jeffer- son, 3 Harrington 385 ; and Gray v. State of Delaware, 2 Harrington 76. In the first case, it appears, that on the 1st of March 1809, congress passed an act interdicting commercial in- tercourse between the United States and Great Britain Rice v. Foster. 17 (What questions may be submitted to a popular vote.) and France, commonly called the non-intercourse law, whicli, by the 19th section, was to continue in force until a certain period and no longer ; that by the 4th section of the act of congress of the 1st of May 1810, on the same subject, it was declared that, in case either of those nations should revoke or modify her edicts, so that they should cease to violate the neutral commerce of the United States, the president should declare the fact, by proclamation ; and if the other nation should not, within three months after- wards, revoke or modify her edicts in like manner, then that certain enumerated sections of the act of the 1st of March 1809, should be revived and be in full force so far as related to such nation; and in regard to the nation revoking or modifying her edicts, that the restrictions imposed by the act of the 1st of May 1810, should, from the date of such proclamation, cease and be discontinued. The supreme court of the United States decided, that the legislature may make the revival of an act depend on a future event, and direct that event to be made known by proclamation ; that there was no sufficient reason why it should not exercise its discretion in reviving the act of 1st March 1809, either expressly or conditionally ; and that the 19th section of that act could not restrict their power of extending its operation, without limitation, upon the occurrence of any subsequent combination of events. There is not the slightest resemblance between the law of congress and the act of our legislature. The non- intercourse law was complete and perfect in itself, when it passed from the hands of its makers ; the act of May 1810, declared it should be revived on the happening of a subsequent event, to be made known by the president's proclamation, which operated simply as a rule of evidence, but did not make or enact the law. Had the president been empowered to repeal existing laws, and create a new law, by the exercise of his will, and to announce his deci- sion by a proclamation, as the people of New Castle county were empowered to do, and to have their decision an- 2 18 EicE V. Foster. (Wliat questions may be submitted to a popular vote.) nounced by the returns of an election, there would he an analogy between the two cases. Were it possible to suppose such an absurdity on the part of congress, their act would have been declared void, which thus undertook to transfer the legislative power exclusively to the president, and to abrogate the constitution. In the case of Steward v. Jefferson, the court of errors and appeals of this state held, that the supplement to the act for the establishment of free schools, authorizing a tax to be laid in each district by a majority of the school voters in such district, was a constitutional law. It is argued, that the power of taxation is legislative power ; that this power is delegated by the school law to the voters in each school district, authorizing them to raise taxes for the support of their schools, and that the opera- tion of the law, so far as regards the tax, depends on the popular vote of the district. By the law of this state for establishing and supporting free schools, each school dis- trict is constituted a corporation with limited powers ; the clear income of the school fund is apportioned among the several counties; the share of each county is divided among the several school districts of such county, and an equal portion given to each, as a donation, provided, the voters in such district raise by subscription or tax, in any one year, a sum equal to one-half of such district's share of the school fund. (8 Del. Laws 21.) But no such tax can be levied or assessed in any school district, unless, upon a vote by ballot, there shall be a majority of votes for the tax. (8 Del. Laws 171.) In the distribution of the school fund, the legislature had the right to appro- priate an equal portion to each school district, as a dona- tion ; and to prescribe as a condition, that before it should be paid, a certain sum should be raised in the district, either by a voluntary subscription or by a tax, as should be determined upon by the corporators themselves. No power is granted to them, or to any other persons, to re- peal or change any part of the law; nor does its existence HiCE V. Foster. 19 (What questions may be submitted to a popular vote.) or operation depend on the performance of the condition, or in any manner, upon the will or acts of the corporators. If the condition be not performed, the defaulting district loses its portion of the fund ; which, after a certain period, is appropriated to the support of free schools in the other districts. No ingenuity can discover the shadow of similitude be- tween the act of the 19th of February 1847, and any part of the school law. To say that the authority given to the school voters (to members of a corporation) to de- termine whether a tax shall be laid or not, is a grant of legislative power, is an abuse of language. Legislative power is the power of making laws ; the making of a law prescribing by what persons, or by what body, when, and.-* in what manner, taxes shall be laid and collected, is the exercise of legislative power; but the making of a reso- lution or order, or the determination or direction, by the persons or body appointed for such purpose by the law, that taxes shall be laid or collected, is simply the exe- cution of an authority granted by statute ; the collection of them is the performance of a mere ministerial duty. The imposition of taxes, therefore, by managers of marsh companies and other incorporated bodies, and by the levy court of a county, is the execution of an authority granted by the statute which appointed them as the proper persons or body to carry its provisions into effect ; it is not the exercise, in any sense of the term, of legislative power. The case of Gray v. State of Delaware, 2 Harrington 76, does not announce any such principle as that the legis- lative power of the state may be delegated ; and although the point was argued, the case does not profess to decide it. The decision is merely that the Mayor's Court of the city of Wilmington has jurisdiction to try cases of assault and battery. It was not necessary to decide that the mayor's court could try such cases without the interven- tion of a jury, as it appeared from the record, that the plaintiff in error had submitted himself to that mode of 20 Rice v. Foster. (What questions may be submitted to a popular vote.) trial, (p. 88.) The argument of the learned judge, which appears in the report of that case, goes only to the extent, that as the general assembly had the right, under the 15th section of the 6th article of the constitution, to confer on the mayor's court jurisdiction in cases of assault and battery, either with or without trial by jury, it was not a delegation of the legislative power of the state, to enact in the city charter, that the mayor's court should have power to try such cases, " with or without trial by jury, as should be provided by the ordinances of the said city." The granting of an act of incorporation is the exercise .of legislative power. To make ordinances for its own government, subject to the control of the legislature, and not inconsistent with the constitution and laws of the state or of the United States, is one of the rights insepara- bly incident to every corporation aggregate ; this is implied by law from the very act of incorporation itself, although the charter may be silent on the subject. "With what show of reason then can it be said, that the power, whether ex- pressed in the charter or not, to make ordinances for the management of the local concerns of the corporation, and the government of its members, is a transfer or delegation of the legislative power of the state? Or that it is any- thing else than the execution of an authority or trust ex- pressly or impliedly conferred by the act of incorporation; an act which is a complete law in itself, and not in the power of the corporation, or of any body or set of men, to change, alter or abrogate, except the legislature; and de- riving all its power and efficiency from that source and no other? The city, of Wilmington is a municipal corporation, in- vested, by the express terms of its charter, with power to make ordinances, subject to the control of the legisla- ture, for its own local purposes, and the government of the city, which can effect none but those who come within its jurisdiction, or who have assented to them, by them- selves or their representatives. An ordinance, then, is Rice v. Foster. 21 (What questions may be submitted to a popular vote.) but a law of the city ; the making of it is the exercise only of the law-making power of the city ; and the authority to make it cannot be a delegation of the legislative power of the state. Therefore, when the charter gave to the mayor's court the power to hear and determine assaults and batteries, with or without trial by jury, the mode of trial was properly left to be regulated by an ordinance of the city. But the defendant's counsel contend, that the act of February 1847 is valid, because it is merely a conditional act, to take effect upon a contingency — upon the result of a popular election. Admitting it, in that sense of the term, to be a conditional act, and further, that it is an act per- fect and complete in itself, and instead of giving power to the people of a county, to repeal, enact, change and re- enact laws, it expressly repealed the license laws and pro- hibited the sale of intoxicating liquors in every part of the state ; but before it shall go into operation, let us suppose, that it is to be submitted to the vote, not of the people of a county, but of the people of the whole state, for their approval or disapproval ; if approved by the majority, it is to become a law ; if disapproved it is not to become a law. This presents the case in the most favorable point of view for the defendant. But were such the character of the act, it would as clearly be unconstitutional, as it is in its present form ; in the one case, the people of the state are constituted a component part of the legislature; in the other, the legislative power of the state is delegated to the people of a county. In the former case, a new power in legislation is introduced, unknown to the constitution; but which the legislature undertake to grant, by requiring the assent or dissent of the people to the enactment of laws ; a power commonly called the veto power ; and which was expressly refused to the executive, by the convention that formed the constitution. In the latter case, by vest- ing the law-making power in the people, the legislature venture to introduce a pure democracy, and thus to sub- 22 EicB V. Foster. (What questions may be submitted to a popular vote.) vert the constitution of this state, and infringe upon that of the United States, which guaranties to every state a republican form of government. The very object of having two distinct branches of the legislature, and each to act separately from the other, is to avoid hasty and precipitate legislation, and the evils arising in single assemblies, from passion, prejudice, party animosities and the intrigues of demagogues. If the legislature were to pass a bill, not by the action of each house separately (the course prescribed by the common law), but by both houses in joint meeting, it would be void. But they assume the power of authorizing the peo- ple, collectively, not of the state, but of a county, to make a law, which the legislature themselves, collectively, can- not make. It has been urged with much force, that the legislature have no authority to call into action the elective franchise, in any other cases, or for any other purposes, than those designated by the constitution ; that the peace and har- mony of society are not to be invaded, nor the passions of the people excited, by calling them out to vote upon spe- culative questions of morals or policy ; that the meaning of an election and the legitimate object of the ballot-box, are the choice of men to fill public offices, and of represen- tatives to carry out political measures for the interest and welfare of their constituents and the community at large; and that every conceivable case where such an election can be necessary or proper for public purposes, is provided for by the constitution itself. There is much strength in the argument; and it may well be questioned, whether the legislature, constitutionally, possess such authority. But it is quite certain, that they usurp power, when they call on the people to legislate by the ballot-box; if they can refer one subject, they can refer any other, to popular legislation ; there is scarcely a case, where much diversity of sentiment exists, and the people are excited and agitated by the acts and influence of demagogues, that Rice v. Foster. 23 (What questions may be submitted to a popular vote.) will not be referred to a popular vote. The frequent and unnecessary recurrence of popular elections, always demo- ralizing in their eftects, is among the worst evils that can befall a republican government ; and the legislation depending upon them, must be as variable as the passions of the multitude ; each county will have a code of laws different from the others ; murder may be punished with death in one, by imprisonment, in another, and by a fine, in a third ; slavery may exist in one, and be abolished in another. The law of to-day will be repealed or altered to-morrow, and everything be involved in chaos and con- fusion. The general assembly will become a body merely to digest and prepare legislative propositions; and their journals a register of bills to be submitted to the people for their enactment. Finally, the people themselves will be overwhelmed by the very evils and dangers against which the founders of our government so anxiously in- tended to protect them ; all the barriers so carefully erected by the constitution around civil liberty, to guard it against legislative encroachments, and against the assaults of vin- dictive, arbitrary and excited majorities, will be thrown down; and a pure democracy, "the worst of all political evils," will hold its sway under the hollow and lifeless form of a republican government. The only check which the constitution interposes to an act of the legislature tending to such consequences, is an independent and upright judiciary. As the act passed on the 19th of February 1847, entitled "an act authorizing the people to decide by ballot whether the license to retail intoxicating liquors shall be permitted among them," is repugnant to the principles, spirit and true intent and meaning of the constitution of this state, and tends to subvert our representative republican form of government, it is the unanimous opinion of this court, that the said act is null and void; and that judgment be rendered by the superior court, for the pkintiff. 24 EicE V. Foster. (What questions may be submitted to a popular vote.) The precedent set by the court of errors and appeals of the state of Delaware, in Eice v. Foster, was adopted and followed by the supreme court of Pennsylvania, in Parker ®. Commonwealth, 6 Penn. St. R. 507, in which case. Bell, J., delivering the opinion of the court, said that although the government of Pennsylvania was not one of enume- rated powers, still, it was a government of limited authority, and that the action of its legislature might be invalid, though it should contravene no express provision of the constitution, if it were in violation of the spirit of that instrument, and the genius of the public institutions created by it. That the people having, by their fundamental law, decreed that the legislative power should be vested in a general assembly, to consist of a senate and house of representatives, had solemnly divested them- selves of all right, directly, to make or declare the law, or to interfere with the ordinary legislation of the state. That the power of making laws, vested in the general assembly, was not so much a privilege, as a duty ; and that it could not be delegated by them to a portion of the people. That the act of 1846, as it left the halls of legislation, was im- perfect and unfinished ; for it lacked the qualities of command and pro- hibition absolutely essential to every law ; and that it could not receive vitality from the fiat of a portion of the people expressed by a popular vote. For these reasons, it was declared unconstitutional and void. The same principle had been enunciated by Chief Justice Gibson, in the case of the Borough of West Philadelphia, 5 W. & S. 283 : he there says, that "under a well-balanced constitution, the legislature can no more delegate its proper function, than can the judiciary ; it is on the lines which separate the cardinal branches of the government, that the liberties of the citizen depend ; for a consolidated sovereignty, in what- ever form, is a despotism, in so far as it subjects the governed, not to prescribed rules of action, to which he may safely square his conduct beforehand, but to the unsettled will of the ruling power, which cannot be foreseen ; and a government becomes consolidated in proportion as its legislative branch abandons its own functions, or usurps those which have been vested elsewhere." And in Barto ». Himrod, 8 K. Y. 483, it was decided by the court of appeals of New York, that their act to establish free schools through- out the state, was unconstitutional and void, for the reason that the fact of its becoming a law was made to depend upon the result of a popular vote. In that case, Willard, J., said, "the law under con- Rice v. Foster. 25 (What questions may be submitted to a popular vote.) sideration is in, conflict with the constitution in various respects ; in- stead of becoming a law by the action of the organs appointed by the constitution for that purpose, it claims to become a law by the vote of the electors ; and it claims that the popular vote may make it void and restore the former law. All the safeguards which the constitution has provided are broken down, and the members of the legislature are allowed to evade the responsibility which belongs to their office. If this mode of legislation is permitted, and becomes general, it will soon bring to a close the whole system of representative government, which has been so justly our pride ; the legislature will become an irrespon- sible cabal, too timid to assume the responsibility of lawgivers, and with just wisdom enough to devise subtle schemes of imposture, to mislead the people. All checks against improvident legislation will be swept away ; and the character of the constitution will be radically changed." So, in the case of the Cincinnati, Wilmington and Zanesville Rail- road Co. ■». Commissioners of Clinton County, 1 Ohio St. R. 84, the court say, that "the authority of the general assembly is much too broadly stated, when it is claimed, that all their acts must be regarded as valid, which are not prohibited by the constitution ; a moment^ s at- tention to principles, which may be regarded as fundamental in all the American systems of government, will demonstrate the unsoundness of such a conclusion ; one of these principles, lying at the very foundation of these systems, is, that all political power resides with the people. They have, therefore, the most undoubted right to delegate just as much or just as little, of this political power, with which they are invested, as they see proper, and to such agents and departments of government as they see fit to designate. As the general assembly, like other de- partments of the government, exercises only delegated authority, it cannot be doubted, that any act passed by it, not falling fully within the scope of legislative power, is as clearly void, as though expressly prohibited. That the general assembly cannot surrender any portion of the legislative authority with which it is invested, or authorize its exercise by any other person or body, is a proposition too clear for argument, and is denied by no one. This inability arises no less from the general principle applicable to any delegated power requiring knowledge, discretion and rectitude, in its exercise, than from the posi- tive provisions of the constitution itself. The people, in whom it re- 26 Rice v. Foster. (What questions may be submitted to a popular vote.) sided, have voluntarily relinquished its exercise, and have positively ordained that it shall be vested in the general assembly. It can only be reclaimed by them, by an amendment or abolition of the constitu- tion, for which they are alone competent ; to allow the general assembly to cast it back upon them, would be to subvert the constitution, and change its distribution of powers, without their action or consent. The checks, balances and safeguards of that instrument, are intended no less for the protection and safety of the minority, than the majority ; hence, while it continues in force, every citizen has a right to demand that his civil conduct shall only be regulated by the associated wisdom, intelli- gence and integrity of the whole representation of the state." The law was held to be the same in Iowa, in Geebrick «. State, 5 Iowa 491. See also Chase v. Miller, 41 Penn. St. R. 423 ; People's Railroad*. Memphis Railroad, 10 Wall. 50. In Maryland, the case of Rice «. Foster is not held to be law ; Hammond v. Haines, 25 Md. 541 ; nor is it, in New Hampshire ; State v. Noyes, 10 Fost. 279. And see State «. O'Neill, 34 Wis. 149 ; Smith v. City of Janesville, 3 Chicago Leg. News 337. But the decision in Parker v. Commonwealth, settled nothing more than that the general assembly of the commonwealth could not delegate to the people the power to enact laws, by the exercise of the ballot, affecting the property and binding the political and social rights of the citizens ; it did not prevent the legislature from submitting to a vote of the people the question of the creation of a new township; Commonwealth v. Judges of the Quarter Sessions, 8 Penn. St. R. 391 ; the division of a county ; People v. Reynolds, 5 Gilman 1 ; the consolidation of certain adjacent territory into one municipal corpora- tion ; Smith v. McCarthy, 56 Penn. St. R. 359 ; or the question of a municipal subscription to the stock of a railroad company; Moers v. City of Reading, 31 Penn. St. R. 188 ; Cincinnati, Wilmington and Zanesville Railroad Co. . State, 13 Wis. 519. The offence consists in wilfully and corruptly doing an act, or omitting a duty, which a person acting in a public capacity knows it to be his duty to do, or 196 Commonwealth v. McCloskby. (Right of interested parties to vote.) omit, in disregard of his official duty and the obligations of his oath. State V. Porter, 4 Harrington 556. Registering officers are not responsible in damages for refusing to register an elector, however erroneous their refusal may be, if produced merely by a mistake in j udgment ; but if they act corruptly or maliciously, they are liable to the person injured. Pike ■». Megoun, 44 Mo. 493. They are judicial officers, and their decisions are of a judicial nature. State V. Staten, 6 Cold. 334. Commonwealth v. McClosket. In the Supreme Court of Pennsylvania. JANUARY TERM 1830. (Reported 2 Rawle 369.) \Bight of interested parties to vote."] On the trial of a contested election, the members returned as elected, though sworn in, are not competent to vote on the question of the validity of their own election. I Rule to show cause why an information in the nature of a writ of quo warranto, should not be filed against the defendants, James McCloskey, John Paisley and David Farrell, to inquire by what authority they exercised the office of commissioners of the township of Moyamensing, in the county of Philadelphia. The act of assembly of the 24th March 1812 provided that the board of commissioners should consist of nine persons, three of whom should be elected annually, to serve for three years. That the three persons who should have the highest number of votes for said office, together with the six commissioners, whose time should not have expired, should meet on the first Monday of April succeed- COMMONAVEALTH V. McClOSKEY. 197 (Right of interested parties to vote.) ing such election, and receive the return of the commis- sioners elect, and should forthwith proceed to examine the same and to judge and determine thereon; and for that purpose, the said commissioners, or a majority of them, should be judges of the said election; and should have full power and authority to approve thereof, or to set aside the same, and to order new elections, as the case might require. On the 20th March 1829, an election was held for three commissioners, to serve for three years; the defendants were returned as duly elected. On the first Monday of April, the board of commissioners were convened ; five of the old commissioners were present, and one was absent. A memorial signed by fifteen inhabitants of the township, complaining of corruption and illegality in the election, was presented to the board, accompanied by depositions tending to prove that three illegal votes had been re- ceived ; and an offer was made to prove other illegal votes. The three commissioners elect had been sworn into office previously to the meeting of the board; at the meeting, they insisted on voting to approve their own election ; two of the old commissioners asserted the right of the three commissioners elect to vote, but the other three protested against it. They divided and formed two separate bodies; the three commissioners elect, and two of the commissioners holding over, constituted themselves a board, and organized by the election of officers. The other three remaining commissioners, together with the one who was at first absent, but afterwards attended, organized themselves into another board. The former, composed partly of the commissioners elect, refused to receive the memorial ; the latter body received it, and notified the defendants to appear on the 15th April, when they would proceed to examine into and determine the validity of the election. The commissioners elect did not appear, whereupon the board proceeded to a hearing of the case, declared the election void, and ordered a new 198 Commonwealth v. McCloskbt. (Right of interested parties to vote.) election to be held. An election was held accordingly, at which James Eonaldson, Eobert Thornton and Samuel Parker were declared duly elected ; the other party not participating in the election. The four old commissioners received the returns of this last election, and admitted the persons returned as members of the board. The question before the court was, the right of the defendants to act as commissioners. J. Randall and P. A. Browne, for the relator. Dallas and Binney, for the defendants. Rogers, J., delivered the opinion of the court. On the 20th of March 1829, the respondents were elected to serve for three years, as commissioners of the township of Moya- mensing. It appearing, at the close of the polls, that they had the highest number of votes, and the judges having given them notice of their election, on the 2d of April 1829, they took the oath of office. The judges, in pursu- ance of the second section of the act of incorporation, re- turned the respondents as duly elected. Before the meet- ing of the commissioners, which is directed to be on the first Monday in April, a memorial, respectful in its terms, was prepared and signed by a number of the legal voters of the township, alleging that sundry abuses were practised, and many votes taken of persons who were not citizens qualified to vote for members of the general assembly, and praying that the abuses might be inquired into, according to law ; and they annexed to their memorial evidence of the illegality of three votes. At the time appointed for the meeting of the commis- sioners, viz., the first Monday of April (present Edward Smith, Jacob Thomas, Robert McAffee, Samuel Bell, George Kirkpatrick, commissioners, and the defendants, John Paisley, David Farrell and James McOloskey, com- missioners elect), Edward Smith stated, he wished to lay Commonwealth v. McOloskey, 199 (Right of interested parties to vote.) before the board a remonstrance contesting the election. The remonstrance was not suffered to be read, nor was any vote taken on it, but it was ordered to lie on the table, by George Kirkpatrick, who had been elected president pro tempore. The returns of the election were then read, where- by it appeared that John Paisley had 217 votes, James McCloskey had 155 votes, and David Farrell had 150 votes. There is then this entry on the minutes, "adopted by the majority of the board," which, though informal, amounts, in substance, to an approval of the election of the respondents. Edward Smith, Jacob Thomas and Rob- ert McAffee were opposed to the approval. The oath of office of the commissioners elect was then read, together with a notice of their election. The board, namely, the commissioners elect, and two of the commissioners of the old board, went into an election for president and other officers, Jacob Thomas, Edward Smith and Robert McAffee refusing to take any part in the proceedings. The 10th of April 1829, at a special meeting of the com- missioners (present, Edward Smith, Jacob Thomas, Thomas Query and Robert McAffee), Mr. Query presented the memorial of sundry inhabitants, complaining of certain abuses practised at the election held on the 20th of March, which being read, on motion, it was resolved, that on the 13th inst., they would inquire into the abuses complained of in the memorial. And on the 13th inst. (having previ- ously given notice to the respondents, who did not attend), they did inquire, set aside the election, and ordered a new election to be held on the 23d of April inst., which resulted in the choice of James Ronaldson, Robert Thornton and Samuel Parker, whose election was approved by the four commissioners above stated. This is an application, in the case of a public corporation, for a rule to show cause by what authority the respondents claim to exercise the duties of commissioners of the town- ship of Moyamensing. The question arises on the 3d and 5th sections of the act of assembly of the 24th of March 200 Commonwealth v. McCloskby. (Right of interested parties to vote.) 1812, entitled "an act to incorporate the township of Moyamensing in the county of Philadelphia." From the facts which have been disclosed, it is apparent, that the approval of the election of respondents, depends altogether on their own vote, and that independently of that vote, there had not been that confirmation of the election, which is required by the act of incorporation. The inquiry then will be, to which all others are subordi- nate in some measure, whether the act of assembly au- thorizes this proceeding on the part of the commissioners elect; whether each of them who has been returned elected, is entitled to judge of his own election, with full power and authority to approve thereof. It will be conceded, that where it can be avoided, no man should be permitted to decide his own cause ; nor can I perceive much difierence, where he is called on to deter- mine his right to an office of profit, or one of trust, accom- panied as this is, with extensive patronage. The tempta- tion to an abuse of the trust, is as great in the one case, as the other; and is such, that no prudent legislature would entrust such a power to any person, unless in cases of necessity ; and where such necessity exists, the legisla- tive grant would, we should be led to suppose, be in such clear, unequivocal terms, as to leave room for neither doubt nor cavil. In England, it is said, that even an act of parliament, made against natural equity, as, to make a man a judge in his own cause, is void, in itself; for, as it is expressed, jura naturce sunt immutaUlia; they are leges legum. Davy v. Savadge, Hobart 87. And in 12 Mod. 687, if an act of parliament should ordain, that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void act of parliament ; for, it is impossible, says the court, that one should be judge and party ; for the judge is to determine between party and party, or between the government and a party. And our own courts appear equally averse to the intro- Commonwealth v. McCloskey. 201 (Right of interested parties to vote.) duction of such a principle. An act of the legislature, says Judge Chase, in Calder v. Bull, 3 Dall. 386, contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded; a law that punishes a citizen for an innocent action, or in other words, for an act which, when done, was in violation of no existing law ; a law that destroys or impairs the lawful private contracts of citizens ; a law that makes a man a judge in his own cause; or a law that takes property from A. and gives it to B. ; it is against all reason and justice, for a people to entrust a legislature with such powers, and, therefore, it cannot be presumed they have done it. The genius, the nature and the spirit of our state governments, amount to a prohibition of such acts of legislation ; and the general principles of law and reason forbid them. To maintain, that our federal or state legislatures possessed such powers, if they had not been expressly restrained, would be a political heresy, altoge- ther inadmissible in a republican government. To these high and imposing authorities, I may add the opinion of the present chief justice (Gibson) in Commonwealth v. "Woelper, 3 S, & R. 43 ; which it is a mistake to suppose was overruled or contradicted by the other members of the court. In this view, the right claimed by the respondents, struck the judicial mind in England, and in this country, and particularly the powerful intellect of Justice Chase. Although I fully accede to the general principle of that distinguished jurist, yet, I should pause, before I would carry it to the extent he seems willing to go. If the legis- lature should pass a law in plain, unequivocal and explicit terms, within the general scope of their constitutional authority, I know of no authority in this government to pronounce such an act void, merely because, in the opinion 202 Commonwealth v. McCloskey. (Eight of interested parties to vote.) of the judicial tribunals, it was contrary to the principles of natural justice ; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legis- lative and judicial departments, dangerous to the well- being of society, or, at least, not in harmony with the structure of our ideas of rational government. Justice is regulated by no certain or fixed standard, so that the ablest and purest minds might sometimes differ with respect to it. Besides, necessity dispenses with those gen- eral principles, and the legislature must be the judges when the necessity exists — when the exigencies of society require the investment of such extraordinary powers. It must, undoubtedly, rest in their wisdom, to determine when the public welfare, to which all else must be subser- vient, requires the assertion of such principles. Whilst I, then, in some measure, disclaim the doctrines of that emi- nent man, yet, the relator has a right to claim the benefit of another rule of construction. Unless the words of the act be plain and explicit, the court is bound, in decency, to conclude, that the legislature had no intention to vio- late the principles of equity, or, without necessity, to contravene the first principles of the social compact ; that as it is against reason and justice, and the fruitful source of faction, corruption and abuse, that a party interested should judge his own case, it is not to be presumed, but directly the contrary, that the legislature have invested the respondents with such extraordinary powers. I have looked, in vain, into the 3d section, which has been mainly relied on by the respondents, for any express words or necessary implication, authorizing the commis- sioners elect, each in his own case, to examine and judge of the election. The legislature had in view the original organization of the corporation, and its continuance, by the election of three members each year, to supply vacan- cies occasioned by the rotary principle provided by the act. Hence, an ambiguity has arisen in the phraseology Commonwealth v. McCloskey. 203 (Right of interested parties to vote. ) of the act, from not accurately distinguishing the manner of proceeding at these periods, which are so essentially different. From necessity, at their organization, they may be permitted to verify their own powers, and perhaps without the sanction of an oath ; hut even then, this may be done without violating a principle of American as well as English jurisprudence, founded in natural equity, and laid down by eminent jurists, as an acknowledged prin- ciple of universal law. Each one must be permitted to vote in the case of his fellows, but not in his own ; the election of one of the nine might well be questioned, with- out interfering with the rights of the others. After the corporation has been called into being, no necessity can ever be pretended ; as then there are persons, acting under the sanction of an oath, competent to decide upon the conflicting claims in a contested election. The 3d section provides that the nine persons who shall, at the next election to be held in pursuance of this act, have the highest number of votes for the office of com- missioners, shall meet together, &c., on the first Monday in April next following the election ; and that the three persons who shall, at every subsequent election, have the highest number of votes for the said office of commission- ers, together with the six commissioners whose time shall not have expired, shall meet together, at such place as shall be legally appointed, &c., on the first Monday of April next following each and every election to be held in pursuance of this act ; and shall, then and there, re- ceive the said returns of commissioners elect, and shall forthwith proceed to examine the same, and to judge and determine thereon; and for that purpose, the said com- missioners so met, or a majority of them, shall be judges of the said election, and shall have full power and autho- rity to approve thereof, or to set aside the same and to order new elections, as the law may require, to be held in the manner hereinbefore directed, and at such times as shall be by them appointed, &c. 204 Commonwealth v. McCloskey. (Right of interested parties to vote.) The fixing of a particular day for the meeting of the commissioners and the commissioners elect, is necessary,, because in case there should be no dispute, the members of the board would be in attendance, and in readiness to enter upon the discharge of the duties of their office ; and in this point of view, it was a prudent precaution. As the scrutiny into the qualification of voters is usually made at the polls, the examination of the returns and the approval of the election, are, in a great majority of cases, matters of form. But where there is reason to believe the returned members have not been duly elected, it be- comes a different affair; then another and more careful scrutiny takes place, before a tribunal on which devolves a most important duty, to examine, judge, approve or set aside the election. The act says, " and for that purpose, the said commissioners so met, or a majority of them, shall be judges of the said election;" that is to say, for the purpose of examining and judging, the commissioners shall be the proper tribunal. What then do the legislature mean by the terms, the "commissioners so met ?" In my judgment, they intended to designate commissioners, in the strict and legal sense of the word. Who then is a commissioner? ~Eo person can be considered as such, until he is duly qualified to perform all the duties of the office ; and this can only be, when he has been elected, returned, his election approved, and when he has duly taken the oath of office. The "commissioners so met," means the commissioners whose time has not expired, in exclusion of the commissioners elect; and in aid of this idea, it would seem, the legisla- ture has discriminated, although not in very plain terms, between commissioners and commissioners elect. If the legislature intended otherwise, it would have been very easy to have expressed their meaning in such precise and definite terms, as to have avoided all difficulty. Not hav- ing done so, we feel ourselves at liberty, nay, bound, in common decency, to suppose they did not wish to be so Commonwealth v. McCloskey, 205 (Right of interested parties to vote.) understood; we are authorized to believe they did not intend to establish a principle, which has been deemed by the most eminent jurists, contrary to natural equity and the first principles of the social compact. On the contrary supposition, the approval of the election would be a mock- ery ; as we could not suppose, particularly with the know- ledge of the facts which have been disclosed, that an interested party, under the influence of irritated and party feelings, could bring to the examination that im- partiality which is necessary to a proper and correct deci- sion. We exclude a juror or a witness when he is inter- ested, and much more so ought we to guard from pollution the determination of the most sacred right, the republican principle, which has been engrafted into this state, that it is the majority of legal voters who shall confer the office. If the question, then, depended entirely on the 3d sec- tion, I should say, the commissioners elect had no right to vote, when their own election was in dispute. But this is rendered still more plain by the 5th section, which pro- vides, that " each and every commissioner who shall be elected and returned, and whose election shall be approved in manner aforesaid, shall, before he enters on the execu- tion of his said office, be sworn or affirmed before some justice of the peace of the county, well and faithfully to , execute the office of commissioner of the said township ; and shall thereupon, without any further or other com- mission, enter upon the duties thereof, and shall hold and exercise the same for the term for which he shall have been elected as aforesaid." The oath of office was administered to the respondents before the election was approved, and even before the return of the election, although after they had received notice from the judges. I do not perceive why the justice might not as well have sworn them in, when they were put in nomination, on the ground of the certainty of their election, and the presumption, that the election would be approved; it would no more have been a violation of the 206 Commonwealth v. McCloskey. (Right of interested parties to vote.) letter, and, I believe, the spirit of the act, in the one case than in the other. The section provides that the commis- sioners shall be elected and returned, and approved, and then sworn; and this is the natural order of proceeding; first, we have the election; then the judges return the highest in vote ; after which, the legal tribunal approves or sets aside the election ; and if the election be approved, then, and not till then, the person who has been elected, returned and approved of, shall be sworn well and faith- fully to execute the office of commissioner of the town- * ship, and shall thereupon (that is to say, after his election shall have been confirmed), without any further or other commission, enter upon the duties of his office. But what are the duties of the office. The first duty a commissioner has to perform on the meeting of the board, in every year, is, to examine, to judge and determine on the election of such members as may be returned by the judges, to supply the vacancies in the board. If, then, I am right in supposing, that the oath ought not to be ad- ministered to the commissioners elect, until their election be confirmed, it is a strong argument to show, that the legislature did not intend that they should take any part in the inquiry, when it ceases to be a matter of form, and becomes matter of subtance, by the presentation of a re- spectful memorial, complaining of an undue election. Surely, it was not contemplated, that some should act with oath, and others without oath ; and that those who had not been sworn, should be the persons who were in- terested in the decision. When the respondents claim the privilege of voting, it is reasonable to object, that they cannot vote without having taken the oath, and that the oath cannot be lawfully administered, until the approval of the election by the tribunal legally constituted for that purpose. . The constitution of the United States prescribes "that each house shall judge of the elections, returns and quali- fications of its own members ;" the constitution of Penn- Commonwealth v. McCloskey. 207 (Right of interested parties to vote. ) sylvania, in nearly the same words, "that each house shall judge of the qualifications of its memhers." The right of determination is given to the house, who exer- cise their authority by the decision of the majority, as in this act it is vested in the commissioners, or a majority. Under these different provisions, no instance can be pro- duced, either in congress or our state legislature, where such a right has ever been permitted, or even claimed. The nearest they have ever gone to it, in congress, was, where returned members voted on a principle, on which their own election depended; a case entirely different from this, and the propriety of which might well be ques- tioned ; at any rate, I feel but little respect for a decision which comes in such a questionable shape. However this may be, we know this cannot occur in our state legislature, for by the act of the 29th of September 1791, upon a petition signed by twenty qualified electors, complaining of an undue election, being presented to the senate or house of representatives, they selfect a commit- tee, appointed by lot, in the manner pointed out by the act, to determine the contested election, whose report, when entered on the journals, is final and conclusive ; and so far from the person whose election is contested, being entitled to vote, the returned member and the candidate next highest in vote, are made parties in the trial. We must, therefore, seek in vain for any analogy to the pre- sent proceeding, in the constitution of the United States and of this state, and the practice which has obtained in congress and our state legislature. In the warmly-contested election for Westminster in 1784, Mr. Kenyon (afterwards Lord Kenyon) denied the right of Mr. Fox, who, at the time, was a member for a small borough in the Orkneys, of being present at the discussion, and asserted, that even hearing him was an indulgence. Against the principle of the assertion, Mr. Fox directly protested, maintaining, that he had not only the right to speak, but a positive and clear right to vote ; 208 Commonwealth v. McCloskey. (Right of Interested parties to vote.) this claim he grounded on the fact, that he was a member of parliament, and he was advocating the right of the electors of "Westminster, rather than his own pretensions. We cannot admit that this, as has been insinuated, is any authority in favor of the respondents, particularly, taken in connection with the fact, that he neither voted nor offered to vote. The respondents have relied on several acts of assembly wherein, they state, similar powers have been conferred by the legislature. If the acts of assembly are the same as in the incorporation of the district of Southwark and the N'orthern Liberties, it proves nothing more than that our decision may affect more .than the township of Moya- mensing ; and is, of course, as we are well aware, an unim- portant question. They, however, shed no light on the construction of the act, unless the counsel had, in addition, shown an adjudication in accordance with the rule for which they contend. If different, I cannot perceive they are entitled to the slightest weight. It will, however, be seen, by reference to those acts, that the legislature have not, even in terms, departed from the principles which I have advocated ; that the provisions of the act may not be ineffectual, they have made them judges of their own election ; the legislature by no means say, that a member of council shall or may vote when his own election is contested, but that the common councilmen, or a majority of them, shall exercise that right; a principle similar to that which has been introduced into the constitution of the United States and of this state. If the right of one or two, or more, was disputed, it would be very clear to me, that the interested party could not interfere in the decision ; and even if the election of the whole of them was in contest, they might, and, I think, ought, as in the case to which I have alluded, vote on the principle, without each one voting directly on his own case ; and even this could only be justified on the plea of necessity, to prevent a failure of the act of incor- Commonwealth v. McOloskby. 209 (Right of interested parties to vote.) poration. For a man to constitute himself a judge in his own cause is indelicate and indecent. It is not necessary to pre- vent a failure of the corporation, nor is it within the spirit or words of the act, which gives the decision to the councilmen, or a majority of them, who are authorized to judge of the election of their own members. The legis- lature have been cautious not to extend the power further than the necessity of the case may require, and within these limits they may be allowed to act ; and unless the legislature expressly say otherwise, they shall not be per- mitted to go, with my consent, a step further. But it is said, the power may be abused, and of this, if we could have had any doubt before, we have been abun- dantly satisfied by the facts which have been disclosed in this investigation. If, however, they have acted corruptly, they are amenable to the laws, and to the opinion of their fellow-citizens, which, in most cases, may prove a suffi- cient restraint. It is also equally within the limits of probability, that the judges of the election may be within the sphere of the same corrupt and factious influence, by which they may be induced to make an improper return ; and if the returned members may be permitted to confirm their own election, it would lead to equal, if not greater mischief. If, then, this matter rested here, I should have no diffi- culty in saying that the rule should be made absolute. But as has been already stated, at a special meeting of four of the commissioners, they undertook to set aside the election, and order a new election, which resulted in the choice of three other gentlemen, to supply the vacancy in the board. At the first election, it appeared, that John Paisley had 217 votes, James McOloskey, 155 votes, and David Farrel, 150 votes ; whereas, the highest of the other candidates had but 147 votes. Two questions then arise : 1. Have the commissioners power to decide, without ex- amination or control by the supreme court? and — 2. If we have power to interfere, is this such a case, in which 14 210 Commonwealth v. MoCloskbt. (Eight of interested parties to vote.) it is the duty of the court to interpose, in consequence of an improper exercise of authority by the commissioners ? The act says that the commissioners, or a majority of them, shall be judges of the election, and shall have full power and authority to approve thereof, or to set aside the same and to order new elections, as the law may require; from this it has been inferred, that the court are ousted of their jurisdiction. By the act of the 22d of May 1722, the supreme court have full power and authority to issue forth writs of habeas corpus, certiorari and writs of error, and all remedial and other writs and process ; and gene- rally, they are empowered to minister justice to all persons, and to exercise the jurisdictions and powers, &c., as fully and amply, to all intents and purposes whatsoever, as the justices of the courts of king's bench, common pleas and exchequer, at Westminster, or any of them, may or can do. This is a great, full and plenary power to the court, wisely entrusted to them for the public welfare, and which we are bound to exercise on the complaint of persons aggrieved. Under this law, the supreme court have been in the constant practice of granting informations in the nature of a writ of quo warranto, for exercising an office in a private as well as a public corporation ; not by force of the statute of 9 Ann. ch. 9, but by power derived from the common law. As the jurisdiction of the court has been expressly granted, it cannot be taken away, except by express words or necessary implication, neither of which appears in this act. When the legislature gives full power and authority to approve or set aside an election, I cannot believe that they intended that the supervising jurisdiction of the supreme court should be taken away. These words cannot have greater effect, than the words, " final and conclusive between the parties," used in a ^reat variety of acts of assembly; and yet, it is a well-settled principle, that these expressions do not take away the jurisdiction of the court. The legislature, being aware that this is a well-settled Commonwealth v. MoCloskey. 211 (Right of interested parties to vote.) rule of construction, would, if they had intended to pre- clude inquiry, have prevented this court from exerting their superintending authority, by express prohibition. This case furnishes a reason against the placing or putting of public or private corporations above the reach of inquiry. And this leads to the second question, whether there was a rightful exercise of authority, in setting aside the elec- tion of the respondents ? As regards Mr. Paisley and Mr. McCloskey, there cannot be the slightest particle of doubt ; Mr. Paisley had a majority of seventy, and Mr. McCloskey, a majority of eight votes. How the commissioners could have supposed they were justified in setting aside their election, on the proof of two, or, at most, of three illegal votes, passes my comprehension. I see no reason for sup- posing that the judges of the election were corrupt, though they may have been mistaken, Edward Smith, one of the commissioners, says, that they inquired into the cir- cumstances of the election held on the third Friday of March; witnesses were examined by the commissioners, on the subject of the election; it was proven, that persons had voted at that election who were not entitled to a vote, persons who did not reside in the township, and persons who were not authorized to vote in the township ; by the latter description, he says, he means aliens ; in his cross-examination, he says, they made no inquiry as to whom they voted for ; Robert Parker, an alien, voted ; he was qualified, in the presence of the commissioners, that he had voted and that he was an alien ; John Woods and Daniel Daniels voted ; these were all that it was proven against, that he recollects. Although it is clear, that the first two were duly elected, yet, there is some difficulty as respects David Farrel ; and if they had merely set aside his election, we should not have been disposed to interfere. It would appear, that three illegal votes were taken at the election, which being deducted from the highest, which, I believe, is the legislative rule, there was an equality of votes. If this be the case, as regards him there was np 212 Commonwealth v. McOlosket. (Right of interested parties to vote.) election. It is to be regretted, that we cannot set aside the election as respects David Farrel, and order a new one, which might be the means of restoring harmony in the township. As we have no such power, the rule must be made absolute as to David Farrel, and refused as to Messrs. Paisley and McOloskey. Gibson, C. J., and Huston, J., dissented. The doctrine of the principal case, that no man shall be admitted to vote on the question of the validity of his own election, appears to have been generally received and adopted, almost without qualification. In Rice V. Foster, Chief Justice Booth, in the court of errors and appeals of the state of Delaware, went so far as to say, " that an act to make a man a judge in his own cause, would not be valid, because it never was the intention of the constitution to vest such power in the legislature, the exercise of which violates the plainest principles of natural justice." 4 Harrington 485. The legislature of Pennsylvania, as early as 1683, passed an act providing that no member of a court of justice should sit in judgment while his own cause was on trial ; and so important was this principle deemed, that it was re-enacted in 1693 and again in 1700. 1 Miller's Laws 13. It was said in Carson's case, in 1787, that the practice of the general assembly of Pennsylvania had always been, to refuse a member's vote, on the question of his right to a seat. 3 Lloyd's Debates 28 ; that this was the practice as early as 1689, see 1 Colonial Records 267-8 ; and see Lancaster Election, 4 Votes of Assembly 125. In Stockton's case, the senate of the United States solemnly decided that a sitting member had no right to vote on the question of his own title to his seat. Cong. Globe 1865-6, page 1635. In Cushing's Lex Pari. Am., §§ 1840-4, there are recorded five cases in which the British House of Commons decided against the right of a member to vote, on a question in which he bad a personal interest. And see Gloucester Election, Cush. Elect. Cas. 97. It would seem, from these authorities, that the interest which will exclude a member from voting, must be one personal to himself, not merely one enjoyed in common with his fellow-citizens (May 353); and that the rule does not extend to preliminary or incidental questions. Commonwealth v. McCloskbt. 213 (Right of interested parties to vote.) Thus, in Dechert's case, in the Pennsylvania senate, a special com- mittee having reported that the petition contesting the election of the sitting member was insufficient to put the case upon a trial, he was allowed to vote upon the adoption of the report. January 1871. But this case went to the very verge of the law, if, indeed, it did not over- step the line. Political precedents, in modem times, are of but little authority; the decision of a contested election, in our legislative bodies, has become simply a question of power, not of right. The only opposing authorities to this well-considered principle of nat- ural equity are to be found in the case of Commonwealth v. Woelper, 3 S. & R. 29, where the supreme court of Pennsylvania (Gibson, J., dis- senting) decided, that an inspector of elections might be voted for as a candidate ; but this was so abhorrent to every feeling of natural justice, that the legislature rendered election officers incompetent by the act of 2d July 1839, § 13. The other is the case of the impeachment of the President, in which senator Wade, the president pro tempore of the senate, who would, under the provisions of the constitution, have suc- ceeded to the presidency, in the event of the conviction and removal of the incumbent, was not only allowed to be sworn in as a member of the court, but actually voted for the conviction of the accused, in which he had so deep a personal interest. 2 Johnson's Trial 486-7, 496 ; 3 Ibid. 214 Chase v. Miller. In the Supreme Court of Pennsylvania. JANUARY TERM 1862. (Ebpoeted 41 Pennsylvania State Rbpokts 403.) [^Place of voting.'] The legislature have no power, under the constitution, to authorize elec- tors in the military service, to cast their votes at any place outside the district in which they have a legal residence. An act of assembly professing to confer such authority, is unconstitu- tional and void. Certiorari to the Quarter Sessions of Luzerne county. This was a case of contested election, founded on the complaint of the requisite number of qualified electors, alleging an undue election and false return of Ezra B. Chase to the office of district attorney. Chase received a majority of the votes polled within the county ; but Jerome G. Mil- ler received a sufficient number of votes from volunteers in the military service of the United States, if legal, to give him a majority of all the votes polled. The legality of the army vote was the question before the court. The court below (Conyngham, J.) sustained the constitution- ality of this vote, and decreed that Jerome G. Miller was duly elected ;* which was assigned for error. i. Hakes and S. Woodward, for appellant. aS'. p. Longstreet and G. M. Wharton, for appellee. Woodward, J., delivered the opinion of the court. This is a case of contested election ; it comes up to us by certio- rari; a motion was made and fully argued, to quash the * The opinion of the court below will be found in 2 Luzerne Leg. Ob- server 74. Chase v. Miller. 215 (Place of voting.) writ, on the ground, that the decree of the court below is final and conclusive, and that we have no jurisdiction to review it. The first point to be considered, therefore, is our jurisdiction; for if there be any doubt on that head, we shall be more than willing to escape the constitutional question upon the record. (The learned judge here en- tered into an elaborate and exhaustive examination of the question of jurisdiction, which was fully sustained.) Under the act of assembly above referred to (3d May 1850, Purd. Dig. 333) an election for district attorney was held in Luzerne county, last October, at which Ezra B. Chase and Jerome G. Miller were the candidates. After counting what the return judges considered legal votes, they gave their certificate of election to Chase ; but twenty qualified electors filed their complaint in writing, setting forth an undue election and false return of Chase, and thus this contest was inaugurated. Besides complaining of a large number of fraudulent votes cast within the county, the petitioners set forth that " on the day of elec- tion, certain citizens of the commonwealth, being qualified electors of the county of Luzerne, and then in the actual military service, in certain detachments or companies of volunteers, under a requisition from the president of the United States, and by the authority of the governor of the commonwealth, did, agreeable to law, hold an election for the purpose of electing county officers of Luzerne ;" and then followed a detailed statement of the votes cast by different companies for the office of district attorney, and a complaint that the return judges excluded the vote of the volunteers, and issued their certificate in disregard of it. The petitioners did not give the names of the military voters, nor tell the court where they voted. Exceptions were filed to the complaint, one of which was, that the place of voting was not disclosed ; but the court overruled the exceptions, and refhaed to quash the complaint, or compel it to be amended in this particular. Pending the 216 Chase v. Miller. (Place of Toting. ) proceedings upon this petition, the parties, on the 24th of December 1861, entered into, and with the leave of the court, filed of record, a written agreement, in these words : " It is agreed, the following facts he submitted, as a case stated, for the court's decision. Admitted that of the votes polled within the county of Luzerne, Ezra B. Chase received 5811 votes, and that Jerome Gr. Miller received 5646 ; and that the said number of votes by each received, be counted by the court as legal votes. That of the votes polled by the volunteers in the army, Ezra B. Chase re- ceived 48 votes, Jerome G. Miller received 362 votes ; but the legality of the votes polled by the volunteers in the army not being admitted, the question as to the l«gal effect thereof is submitted as a matter of law for the court. If the court should be of opinion, that the army vote is constitutional and legal, the same to be allowed by the court, and added to the vote cast in the county for the party or parties in whose favor they may be, and then the court to decree in favor of the party having the greatest number of votes. If no part of the army vote is received, the decree to be in favor of Mr. Chase ; the army vote being taken as above stated, the objections to it being all waived, except as to its constitutionality." On the 6th of January, the court made their decree " upon the written statement of facts agreed to by the par- ties, and filed upon the 24th December ultimo, no other evidence being offered," which was to the effect that the army vote was legal, that it should be counted, and that it gave a majority to Miller, to whom the office was awarded. It has been seen already, that the inability of the court to review a decree of the court of quarter sessions on its merits, springs not from any organic defect of jurisdiction, but from the want of a bill of exceptions to certify us of the facts ; but no bill of exceptions is needed when the parties agree upon the facts, and the court make their Chase v. Miller. 217 (Place of voting.) agreement a part of the record, and then "thereupon judg- ing," base their decree exclusively on such agreement. A bill of exceptions compels the facts upon the record; neither the court nor the party can resist it ; but the par- ties cannot be compelled to agree, nor the court to admit their agreement to record ; still, both may be done, and thus the purpose of a bill of exceptions fully attained. The agreed facts become, in such case, as real a part of the record, as if a special verdict had been received and re- corded. The court to whom the legislature committed this contested election, is provided with a jury which might be used to ascertain facts, and a special verdict is as much legal ground for judgment in the quarter sessions as in the common pleas. The parties have come to what is substantially a special verdict, by their agreement, and it is wholly immaterial, that they did not reserve to them- selves a right of review, for not waiving it, the law gave them that. Had the court possessed itself of the facts per testes, whether in the form of oral evidence, or by deposi- tions, we could not notice them, simply because there is no mode of certifying to us what the facts were; but, placing them upon the record by the concurrent consent of court, counsel and parties, and then basing their decree most distinctly and exclusively upon the facts so ascer- tained, it would be hypercriticism run mad so to construe the statutes under which we sit, as to deny a citizen the 'right of review. If we should limit ourselves strictly to the agreement of 24th December, as the court below did, we should be obliged to say, it was wholly insufficient to support the decree that was built upon it, for it does not tell us that the volunteers, who cast, what it calls, the army vote, were qualified electors of Luzerne county ; that they were serving in any detachment or company, in pursuance of public authority; who they were, nor where they voted, whether within ten miles of their usual place of voting, or in Virginia or Kentucky; on all these points the agree- 218 Chase v. Millbk. (Place of voting. ) ment is dumb. And if the parties were able to bring before the return judges no better case than is made by that paper, the judges did well to reject the army vote, and award the certificate according to votes of whose legality they had some evidence. But to help out the record, we choose to read the agree- ment in connection with the : petition of complaint, and we have already seen, that that did set forth, not as fully as it ought, but with tolerable precision, the qualified character of the volunteers who cast the votes in question* By the expression " army vote," in the agreement, we are then to understand, the votes alluded to in the petition of complaint ; this is absolutely necessary to meet the main question of the cause, for there is nothing in the agreer ment, in and of itself considered, to raise that question, or any other that is worthy of judicial notice. But even when we construe the agreement by the pre- cedent parts of the record, we cannot learn in what state the votes were cast. The army raised in Pennsylvania has been employed, most of the time, in other states; though camps of instruction have been maintained within our own state. The reasonable presumption is, that the votes denominated the army vote, were cast partly within and partly without our state ; and such, we have reason to believe, was the fact. Ifo account whatever was made of the place of voting in the court below. The "army vote," as it is most loosely called in the agreement of 24th December, was cast somewhere; and counted, in pursuance of section 43d, and the sections immediately succeeding, of the general election law of 2d July 1839. Purd. Dig. 379. The 43d section is in these words: "Whenever any of the citizens of this commonwealth, qualified as herein- before provided, shall be in any actual military service, in any detachment of the militia or corps of volunteers, under a requisition from the president of the United States, or by the authority of this commonwealth, on the day of the Chase v. Miller. 219 (Place of voting.) general election, such citizens may exercise the right of suffrage, at such place as may be appointed by the com- manding officer of the troop or company to which they shall respectively belong, as fully as if they were present at the usual place of election; provided, that no member of any such troop or company shall be permitted to vote at the place so appointed, if, at the time of such election, he shall be within ten miles of the place at which he would be entitled to vote, if not in the service aforesaid." This section and its sequents are virtually a reprint of the act of 29th March 1813. 6 Smith's Laws 70. The proviso of that act prescribed two miles from his usual place of voting, as the condition on which the volunteer in actual service might exercise suffrage elsewhere. Such a proviso, whether two miles, as in the act of 1813, or ten miles, as in the act of 1889, is an intimation of that which we have other reasons for believing, that the legislature of neither of those years had any thought whatever of legalizing military voting outside of our own territorial limits. They probably meant to give the citizen-soldier, who should be in actual service within the state, on the day of the general election, an opportunity to vote, if his engagements detained him at the prescribed distance from his domicil. And so understood, there was nothing in the state constitution, when the act of 1813 was passed, which its terms could be thought to contravene. The constitution of 1790 was then in force, and the qualifications of an elector which that instrument pre- scribed, were that he should be a freeman of the age of twenty-one years, that he should have resided in the state two years next before the election, and within that time paid a state or county tax, which should have been assessed at least six months before the election ; or that he should be a son, between twenty-one and twenty-two years of age, of a citizen qualified as aforesaid. This was the constitu- tional rule, and the whole of it, up to January 1st, 1839, when the amended constitution of 1838 took effect ; and 220 Chase v. Miller. (Place of voting.) therefore, when the revisers of our civil code, who were very competent constitutional lawyers, reported, in 1834, a general election law, substantially the same that is now in force, they did not hesitate to retain the substance of the act of 1813. Had their report been made after the, constitution of 1838, we would scarcely have expected them to incorporate the provisions of the act of 1813, for, as we shall see hereafter, the constitution of 1838 made the precise place of voting an element of the right of suffrage. For five years their report was not taken up by the legis- lature, and when, near the close of the long session of 1839, it came up, the legislature passed it pretty much in the words submitted by the revisers, without adverting to the changes which, in that interval of five years, had taken place in our fundamental law. We are not to wonder at this, for instances of even more careless legislation are not uncommon. The act was a long one, made up of 157 sec- tions, was not touched until a late day of the session, and was adopted by the two houses on the 25th June, the very day they adjourned ; it was signed by the governor on the 2d July 1839, which gave the act its date. If, in the hurry of closing a long session of the legislature, any one of the numerous provisions of the act suggested a consti- tutional doubt to the mind of a single member, he doubt^ less dismissed it upon faith in the revisers, without remem- bering that he was called upon to consider a very different constitutional question from any that engaged their atten- tion. Tradition tells of no constitutional debates on the act of 1839, in the legislature that passed it. I mention these circumstances, as showing how inconclusive is the argument which the learned judge below attempted to deduce in favor of the constitutionality of the act, from the high, character of many of the members of the legis- lature. The great question now before us, is, whether the 43d section of the act can be reconciled with the first section of article 3d of the amended constitution? Having Chase v. Miller. 221 (Place of voting.) already quoted the 43d section, I will bring into contrast with it, the very terms of the constitutional provision : "In elections by the citizens, every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote, ten days immediately/ preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector ; but a citizen of the United States who had previously been a qualified voter of this state, and removed therefrom and returned, and who shall have resided in the election district, and paid taxes as aforesaid, shall be en- titled to vote after residing in the state six months ; pro- vided, that white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the state one year, and in the elec- tion district ten days, as aforesaid, shall be entitled to vote, although they shall not have paid taxes." By comparing this clause with the corresponding pro- vision of the constitution of 1790, it will be seen in what the amendments consisted. The word " white" was intro- duced before " freemen," excluding thereby negro suffrage, which had prevailed to a slight extent ; the state residence was reduced from two years to one ; and the words requir- ing a residence in the election district where he offers to vote, were added. The latter amendment was probably suggested by the registry law which was passed in 1836 for the city and county of Philadelphia; the main object of which was, to identify the legal voter, before the election came on, and to compel him to offer his vote in his appropriate ward and township, and thereby to exclude disqualified pretenders and fraudulent voters of all sorts. The idea of a registry of legal voters, as a means to purity of elections, was hinted by Ch. J. Tilghman, in 1816, in Catlin v. Smith, 2 S. & R. 266 (ante 117). When the third article came up in the convention of 1838, the political party that had 222 Chase v. Miller. (Place of voting.) favored the Philadelphia registry law, brought forward and supported this amendment, as calculated to accom- plish, substantially, the same results for the whole state, which the registry law proposed to accomplish for Phila- delphia. The political party to whom the registry law had always been distasteful, opposed the amendment as an unnecessary clog upon freedom of suffrage, but on a division, it was adopted by a vote of sixty-four to sixty, every member from the city of Philadelphia, where the registry law had proved acceptable, voting for it, and every member from the county of Philadelphia, which had never relished the registry law, voting against the amendment. 9 Debates in Convention 300-20. Regarding the amendment as designed in general to exclude fraudulent voting, the question now is, what con- struction shall be given to its particular phraseology? Construing the words according to their plain and literal import (and we must presume that the people of Pennsyl- vania construed them so, when they adopted the amend- ment), they mean, undoubtedly, that the citizen, possess- ing the other requisite qualifications, is to have a ten days' residence in an election district, and is to offer his ballot in that district. The second section of this article re- quires all popular elections to be by ballot. To " offer to vote" by ballot, is to present one's self, with proper qualifi- cations, at the time and place appointed, and make manual delivery of the ballot to the officers appointed by law to receive it. The ballot cannot be sent by mail or express, nor can it be cast outside of all Pennsylvania election dis- tricts, and certified into the county where the voter has his domicil. We cannot be persuaded that the constitu- tion ever contemplated any such mode of voting, and we have abundant reason for thinking that to permit it would break down all the safeguards of honest suffrage. The constitution-meant, rather, that the voter, in.propridper' sond, should offer his vote in an appropriate election dis^ trict, in order that his neighbors might be at hand to Chase v. Miller. 223 (Place of voting.) ' establish his right to vote, if it were challenged, or to challenge, if it were doubtful. The anaendment, so understood, introduced not only a new test of the right of suffrage, to wit, a district resi- dence, but a rule of voting also. Place became an element of suffrage for a twofold purpose; without the district residence, no man shall vote ; but having had the district residence, the right it confers is, to vote in that district. Such is the voice of the constitution; the test and the rule are equally obligatory ; we have no power to dispense with either; whoever would claim the franchise which the constitution grants, must exercise it in the manner the constitution prescribes. But, be it observed, the constitution does not define an election district ; and therefore, I hold, that it referred the definition to the legislature. The words "election dis- trict" do not occur in the constitution of 1790; the word "district," was often applied by that instrument to subdi- visions of the state for senatorial, representative and judi- cial purposes, but never for purposes of election. Election districts acquired their first constitutional recognition in 1838 ; they had, however, long been familiar to our ordinary legislation. "Where any township or townships hath or have been divided, or hereafter shall be divided, in forming any election district" an inspector shall be chosen for each district, said the 7th section of the act of 15th February 1799 (8 Smith's Laws 844); and since that time, we have had innumerable acts of assembly creating, dividing and subdividing election districts, until the legislature grew tired of the subject, and in 1854, turned it over to the courts of quarter sessions, to fix election districts, " so as to suit the convenience of the inhabitants thereof." Purd. Dig. 386. Always, from 1799 down to the present hour, election districts, within the meaning of our statutes, have denoted subdivisions of Pennsylvania territory marked out by known boundaries, pre-arranged and declared by public authority. "Whether composed, as at different 224 Chase v. Miller. (Place of votins;.) periods they have been, of counties or cities, of town- ships or boroughs, of wards or of precincts, they have always been such subdivisions of our own territory, and no man has been known to suggest the formation of an election district, by Pennsylvania authority, outside of her state borders. Now, whilst the constitution did not stop to define election districts, it took up and incorpo- rated them, as the legislature had theretofore, and should thereafter, define and regulate them ; it referred itself to the legislative will on the subject ; and therefore, election districts mean, in the constitution, just what they mean in the statutes. This necessary dependence of constitutional principles upon auxiliary legislation, was explained in Commonwealth v. Maxwell, 27 Penn. St. R. 444. "We must understand the constitution, then, as prescrib- ing to the qualified voter, that his ballot is to be cast in such an election district as the legislature may erect, by itself or through the courts. And the legislative power over election districts is unlimited within our own state. "Whether they could form a district beyond our territorial jurisdiction, for the convenience of our own citizens, is a question which need not be considered, for no such legis- lation has been attempted; but it is quite clear to our minds, that the legislature might erect a military camp within the state, into an election district, and the moment they should do so, the constitution would apply itself to that district, in the same manner as to any other. There must, however, not only be a district to vote iu, but there must be a residence therein for ten days next pre- ceding the election ; this a part of the condition of suffrage. Undoubtedly, the primary signification of the word "resi- dence," as used in the constitution, is the same as domi- cil — a word which means the place where a man exercises his civil and political rights ; but I am not satisfied, that the constitution meant to limit itself to this strict and technical definition of residence. Referring the subject of election districts to the legislature, as we have seen that it Chase v. Miller. 225 (Place of voting.) did, I incline strongly to think, that the constitution meant also, to leave the subject of residence in an election district, to legislative discretion, and therefore, that the legislature are as free to declare what shall be residence in an election district for ten days next preceding the election, as they are to prescribe the boundaries of the district. "When they have not exercised their power, nor attached to the word any other than its ordinary legal signification, it is to be received, according to its primary meaning in the constitution, as equivalent to domicil ; but if they should make a military camp, in Pennsylvania, an election district, and declare that military sojourn and service therein for ten days should be equivalent to a con- stitutional residence, for the purposes of election, I would be extremely loth to think such a law unconstitutional. These observations, however, on the meaning of the word residence, must not be considered as expressing the opin- ion of the court, but only my own. The meaning of the constitutional clause under consider- ation may, therefore, on the whole, be stated thus : every white freeman, twenty-one years of age, having "resided,' according to the primary meaning of that word, or ac- cording to legislative definition of it, in any " election dis- trict," created by or under the authority of the legislature, for ten days preceding the election, shall be permitted to ofier his ballot in that district. Having now defined, with all possible clearness, the meaning we attach to the clause of the constitution in question, we turn next to the consideration of the mean- ing of the 43d section of the act of 1839. Like all other parts of a statute, it is to be construed, if possible, in a manner that shall be consistent, not only with the consti- tution, but with the other parts of the same statute; neither unconstitutionality nor repugnancy are to be as- sumed, but if both clearly appear, we ought not to be ex- pected to give the section effect. The section says that the citizens referred to in its first 15 226 Chase v. Miller, (Place of voting.) clause " may exercise the right of suffrage, at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong." Now, we have seen above that the constitution prescribes a place for the exercise of the right of suffrage, to wit, an election district. The 43d section does not affect to create an election district ; there is not a word in it for that pur- pose ; there is no designation of boundaries, no subdivision of territory, nothing, not a word or thought which bears the slightest relation to our legislation on the subject of election districts. But it is said, the place which the commanding officer is authorized to appoint, is the sub- stantial equivalent of an election district. Not so, for many reasons ; for these two, particularly : 1. There is no prior public designation of the place. One purpose of having election districts designated by some public record is, that all parties interested may know where to resort to find the ballot-box ; some go there to vote; others to watch for illegal voters; others to elec- tioneer ; but all have an interest in knowing where the law of the land has directed the election to be held. The military commander makes no public proclamation of the place he appoints; no record exists of his appointment. 2. A second and perfectly conclusive reason why the place fixed by the commander cannot be regarded as an election district is, that the legislature have no power to authorize a military commander to make an election dis- trict. It is a part of the civil administration — ^this design nating of election districts — and however it may be com- mitted by one of the three co-ordinate departments of the government to another of those departments, as by the legislature to the judiciary, no civil functions of either department can be delegated to a military commander; this would be to confound the first principles of the government. If the legislature had said, in the most express terms, that the commander might declare his camp, wherever it Chase v. Miller. 227 (Place of voting.) might happen to be, an election district, it could have availed nothing ; for the constitution, in referring to the legislature for election districts, recognised them as among the civil institutions of the state, to be created and con- trolled exclusively by the civil, as contradistinguished from the military power of the state. The constitution says " the military shall, in all cases and at all times, be^ in strict subordination to the civil power," which is mark- ing a distinction between the two powers with great em- phasis. To the civil, and not to the military power, did the constitution entrust the formation of election districts, and therefore, the civil cannot commit it to the military. If then, the legislature did not, and could not, authorize the military commander to form an election district, how could there be any constitutional voting under the 43d section? "Without an election district, there can be no constitutional voting ; the 43d section provides for no elec- tion district, and no military commander can be empowered to form one; hence, it follows, as an inevitable deduction, that the "place" referred to in that section is inconsistent with the constitutional requisition of an election district, and that xyhatever votes have been cast, in pursuance of that section, since the constitution of 1838 came in, have been cast without authority of law. If the place of voting has been, as in many instances we know it has been, in other states and in the District of Columbia, the assump- tions set up in behalf of it have only been the more ex- travagant. For, observe, it has been first assumed that the constitution was intended to have extra-territorial effect; next, that the legislature had power to make elec- tion laws, to be executed not only in Pennsylvania, but in other states ; then, that the 43d section established elec- tion districts wherever a commander of a troop or com- pany should be pleased to appoint; and finally, that the presence of the soldier-voter at that place (though it might be on a forced march, or in the tug of battle), was residence for ten days, within the meaning of the constitution ; no 228 Chase v. Miller. (Place of voting.) word of legislation having ever said it should be so con- sidered, Nay, not only has no legislation authorized this last assumption, but this very 43d section has excluded it, by declaring that the soldiers entitled to vote at the places appointed by military commanders should be " quali- fied citizens." A constitutional argument which rests on such assumptions can never be formidable. "When a soldier returns to his election district, he re- sumes all the civil rights of citizenship, and his residence being unimpaired by his temporary absence, he has a right to vote on election day ; but under the constitution, to which his fealty is due, he can acquire no right to vote elsewhere, except by a change of residence from one dis- trict to another. The repugnancy of the 43d section to other sections of the same statute, is as gross as its inconsistency with the constitution. It says, the " citizens of this commonwealth qualified as hereinbefore provided," shall have the peculiar right of sufirage, which is claimed in this case to be con- stitutional. This word "hereinbefore" is a reference to prior sections of the same statute ; but the qualifications for suffrage are not contained in any prior section; another instance of careless legislation. It is not till we get to the 63d section that we come to the subject of qualifica- tions; the 63d section re-enacts the first section of the third article of the constitution in terms. If we read the word "hereinbefore," as if it were written "hereinafter," or if we construe it as referring to the constitutional clause of qualification (and in one or the other of these ways it must be taken), it comes to the same thing — a demand for the constitutional qualifications of Suffrage in every soldier who claims to vote under the 43cJ section. It says, in effect, that the soldiers who offer to vote in the election district wherein they have resided ten days immediately preceding the election, shall be entitled to vote in any place their commander appoints, provided it be not within ten miles of the district wherein they have resided for the last ten Chase v. Miller. 229 (Place of voting.) days; wliicli is downright nonsense. Yet sucli is the effect of the words " qualified as hereinbefore provided," when taken in connection w,ith the other parts of the section; they turn the whole section into jargon. The 63d section declares, that " no person shall be per- mitted to vote at any election" provided for by the act, except he possess the constitutional qualifications which have been already expounded. The 67th section declares that every person qualified as aforesaid " shall be admitted to vote in the township, ward or district in which he shall reside;" and the resolution of 26th April 1844, pro- vides for a person who removes from one ward, borough or township to another, within ten days before the election, and gives him a right to vote in the ward, borough or township from which he has removed.* These legislative regulations of residence in districts, are in accordance with that interpretation of the constitution suggested above, and show clearly how essentially the place of voting has entered into the qualifications of suflrage. The nega- tive words of the 63d, and the affirmative words of the 67th, are very emphatic expressions of the constitutional rule in respect to the place of voting. "Whilst speaking of the legislative control of election district's, it may be proper to advert to a fact stated in argument, that voters resident in the township of "Wilkes- barre, which is an election district, are accustomed to vote in the borough of Wilkesbarre, which is a separate elec- tion district, and other similar instances are said to exist in Luzerne county, where votes are actually cast in an election district adjacent to that in which the electors reside. If this practice have the sanction of an act of assembly, it is defensible ;t if it have not, I know of no * This resolution of 26th April 1814 was declared unconstitutional in Thompson n. Ewlng, 1 Brewst. 103. And see McDaniels' Case, 3 Penn. L. J. 314 (post 238). t Bed gwre? It would seem, that such an act would be unconstitu- tional. ^30 Chase v. Millek. (Place of voting.) principle on which it can be excused, except that of com- munis error. And this is all that we feel called on to say in regard to it, for it is not a circumstance of sufficient magnitude or importance to disturb the course of our' ar- gument, or to attract further notice. To all these sections, the 43d, as construed in the court below, is directly repugnant. It is repugnant also to all those numerous provisions of the act which require peace officers, on demand of an election officer, or of three citi- zens, to preserve free access to the polls, and to suppress disturbances and riot; which forbid wagering and mis- conduct at the polls, and which prohibit all troops, " either armed or unarmed," from attending at any place of election within the commonwealth. The 43d section is in direct antagonism to all of these reasonable and conservative pro- visions. It permits the ballot-box, according to the court below, to be opened anywhere, within or without our state, with no other guards than such as commanding officers, who may not themselves be voters, nor subject to our jurisdiction, may choose to throw around it; and it invites soldiers to vote where the evidence of their qualifications is not at hand ; and where our civil police cannot attend to protect the legal voter, to repel the rioter, and to guard the ballots after they have been cast. It is scarcely possible to conceive of any provision and practice that could, at so many points, offend the cherished policy of Pennsylvania in respect to suffrage. Our consti- tution and laws treat the elective franchise as a sacred trust, committed only to that portion of the citizens who come up to the prescribed standards of qualification, and to be exercised by them at the time and place, and in the manner, pre-arranged by public law and proclamations; and whilst being so exercised, to be guarded, down to the instant of its final consummation, by magistrates and con- stables, and by oaths and penalties ; all of which the 43d section reverses and disregards, and opens a wide door for Chase v. Miller. 231 (Place of voting.) most odious frauds, some of which have come under our judicial cognisance. It is due to our citizen-soldiery to add, however, in re- spect to the cases of fraud that have been before us, that no soldier was implicated. The frauds were perpetrated, in every instance, by political speculators, who prowled about the military camps, watching for opportunities to destroy true ballots and substitute false ones, to forge and falsify returns, and to cheat citizen and soldier alike out of the fair and equal election provided for by law. And this is the great vice of the 43d section ; that it creates the occasion and furnishes the opportunity for such abomina- ble practices. This would be a reason, drawn from our experience of the last half year, for construing it strictly, if strict construction were required. But it is so palpably in conflict with the constitution, and so repugnant to all the substantial parts of the enactment into which it was heedlessly thrust, that no strictness of construction is called for. Taking the section as it stands (as every reader, whether clerk or layman, would understand it, or as the learned judge below administered it), we hold it to be subversive of the amended clause of article 3d of the con- stitution, and also of the constitutional sections of the general election law of 2d July 1839. Having now examined fully the grounds and extent of our jurisdiction, and having stated the meaning of both the constitutional amendment and the enactment in ques- tion, and thus developed the irreconcilable antagonism between them, it remains only that we notice briefly some of the most prominent arguments that have been urged in support of the enactment. The learned judge refers him- self to several cases, in which this court have set up judi- cial implications as to the spirit and meaning of the con- stitution, in order to support acts of assembly that were inconsistent with the letter of the constitution; but he failed to observe that, in all these cases, there was ground laid in the constitution itself, to support the judicial im- 232 Chase v. Miller. (Place of voting.) plication. Take, for example, the acts of assembly that were discussed in Zephon's Case, 8 W. & S. 382 ; Kilpatrick's Case, 81 Penn. St. R. 198; and Foust's Case, 33 Ibid. 838; all of which were supposed to conflict with that provi- sion of the constitution which requires the president judge of the common pleas to be one of the quorum of the court of oyer and terminer. Everybody knows that the constitution betrayed an anxiety that the trial of high crimes should be pi'esided over by a judge "learned in the law," and as it provided for no such judges, except in the instance of the president of the common pleas, it, there- fore, required him to be present in the court of highest criminal jurisdiction. But when the legislature provided associate judges " learned in the law," for certain courts of common pleas, everybody saw how the overruling purpose of the constitution would be just as well carried out, by allowing such associates to constitute the oyer and terminer, as by requiring the president judge to be always present. Founding the judicial implication on the manifest intent and purpose of the constitution, the acts of assembly were held constitutional. So, in the instance discussed in Commonwealth v. Max- well, 27 Penn. St. R. 444, the choice of judges by popular election was seen to be the policy and purpose of the con- stitution ; but the constitution could not regulate the de- tails of such an election, and therefore referred them to the legislature to regulate. The legislature, considering that three months was none too much time for the people to look up a good judge, provided that if a vacancy occurred in less than that time before the annual general election, the choice should be postponed till the general election of the next year ; the vacancy being filled, meantime, by executive appointment. "We held the act of assembly constitutional, because it aimed at the accomplishment of one of the great and apparent purposes of the constitution. We would not consider the interval of three months unreasonable, because it was the very period which the constitution Chase v. Miller. 233 (Place of voting.) itself fixed for the election of a governor when a vacancy happened in that office in the midst of an official term. Thus the grounds of the judicial implication set up in support of the law were derived from the constitution it- self. The same line of remark might be applied to most, perhaps all, of the other cases cited. But how can it be applied to this case ? In what part of the constitution does it betray the purpose, policy or desire that votes should be cast wherever qualified citi- zens may happen to' be on election day? So far from afibrding any ground for judicial implications of this kind, it studiously excludes them, by prescribing the terms of suffrage with as much precision as we would look for in a treatise on mathematics. It does not deal with suttrage carelessly; it withholds it altogether from about four-fifths of the population, however much pro- perty they may have to be taxed, or however competent, in respect of prudence and patriotism, many of them may be to vote. And here let it be remarked, that all our successive constitutions have grown more and more astute on this subject. Penn's frame of government, made in April 1682, gave the right of suffrage to " every freeman of the province ;" his laws agreed upon in England, in May 1682, gave it to every inhabitant of the province who should purchase a hundred acres of land, or who shall have paid his passage, and taken up a hundred acres of land at a penny an acre, and cultivated ten acres thereof; and to every person that hath been a servant or bonds- man, and is free by his service, that shall have taken up fifty acres, and cultivated twenty ; and to every resident of the province that pays scot and lot to the government. By the constitution of 1776, every freeman of 21 years of age, having resided in the state one year next before the election, and paid public taxes during that time, was en- titled to vote ; here we see the definition of a voter grow- ing more exact ; and in the constitution of 1790, still more exact; and finally, in that of 1838, there is superadded to 234 Chase v. Millek. (Place of voting.) the other distinguishing marks, a district residence of ten days immediately preceding the election. N"ow, the lahor of the constitution has not heen to restrict suffrage in any spirit of distrust of popular intel- ligence, but it has been to define it so exactly that it might be preserved from abuse and perversion. The con- stitution affords ample ground for judicial implications in favor of legislation that tends to ascertain legal voters and votes with precision and exactitude, but not an atom of ground for implications in behalf of a law that opens the ballot-box anywhere and everywhere, under supervi- sion of military officers unknown to our civil administra- tion, and where no officer can possibly be who is specially charged with the supervision of state elections. Because judicial implications hajve been set up in behalf of other acts of assembly, it does not follow that judicial implica- tions can save this one. In other instances, the implica- tion was well grounded in the constitution; in this instance, everything in the constitution forbids the im- plication. The learned judge deprecates a construction that shall disfranchise our volunteer soldiers. It strikes us that this is an inaccurate use of language ; the constitution would disfranchise no qualified voter; but to secure purity of elections, it would have its voters in the place where they are best known on election day. If a voter voluntarily stays at home, or goes a journey, or joins the army of his country, can it be said, the constitution has disfranchised him? Four of the judges of this court, living in other parts of the state, find themselves, on the day of every presidential election, in the city of Pittsburgh, where their official duties take them, and where they are not permitted to vote. Have they a right to charge the con- stitution with disfranchising them? Is not the truth rather this — that they have voluntarily assumed duties that are inconsistent with the right of suffrage for the time being? Such is our case; and such is the case of Chase v. Miller. 235 (Place of voting.) the volunteers in the army ; the right of suffrage is care- fully preserved for hoth them and us, to be enjoyed when we return to the places which the constitution has ap- pointed for its exercise. It is forcing a gratuitous assump- tion upon the constitution, to treat it as intending that the volunteer in the public service, shall carry his elective franchise with him, wherever his duties require him to go; there is no word or syllable in the instrument to jus- tify the assumption, A good deal has been said about the hardship of de- priving so meritorious a class of voters as our volunteer soldiers of the right of voting. As a court of justice, we cannot feel the force of any such consideration ; our busi- ness is to expound the constitution and laws of the coun- try as we find them written; we have no bounties to grant to soldier's, or anybody else. It may be said, how- ever, in answer to this suggestion, that the hardship of missing an annual election, is one of the least the soldier is called on to endure, and this they share in common with the patriot soldiers of all the loyal states, for it is understood that no state but Pennsylvania has attempted to extend civil suffrage to an army in the field. To volun- tarily surrender the comforts of home and friends and business, and to encounter the privations of the camp and the perils of war, for the purpose of vindicating the con- stitution and laws of the country, is indeed a signal sacrifice to make for the public good ; but the men who make it most cheerfully and from the highest motives, would be the very last to insist on carrying with them the right of civil suffrage, especially when they see, what experience proves, that it cannot be exercised amidst the tumults of war, without being attended with fraudulent practices that endanger the very existence of the right. Whilst such men fight for the constitution, they do not expect judges to sap and mine it by judicial constructions. Finally, let it be said, that we do not look upon the construction we have given the constitutional amendment, 236 Chase v. Miller. (Place of voting.) as stringent, harsh or technical ; on the contrary, we con- sider it the natural and obvious reading of the instrument, such as the million would instinctively adopt. Constitu- tions, above all other documents, are to be read as they are written; judicial glosses and refinements are misplaced when laid upon them. Carefully considered judicial im- plications may, indeed, be made upon them, in support of statutes (never to defeat statutes), when such implications are grounded in the constitution itself, and tend to accom- plish its obvious purposes, as well as to promote the public welfare. But when asked to set up a construction that opposes itself both to the letter and the spirit of the instru- ment, and which tends to the destruction of one of our fundamental political rights — that free and honest suf- frage on which all our institutions are built — this court must say, in fidelity to the oath we swore, that it cannot be done. Decree reversed. Thompson, J., dissented. The doctrine of Chase v. Miller, was followed in the court of quarter sessions of Philadelphia, in the case of Thompson e. Ewing, 1 Brewst. 67, 104. But the law was altered in Pennsylvania, by an amendment to the constitution, procured by the dominant political party, in 1884, which again opened wide the door for all the evils so clearly pointed out by the supreme court in the principal case. In Hulseman v. Rems, 41 Penn. St. R. 396, there was an application to the supreme court for an injunction to restrain the counting of certain returns of alleged military votes, which where shown to be barefaced forgeries, without any pre- text of legality ; and whilst the court were compelled reluctantly to refuse the application, it called forth from Chief Justice Lowrie these sorrowing words: "If, in this way, we suffer a gross fraud to pass through our hands without remedy, it is not because we have any mercy for the fraud, but because we cannot frustrate it by any device of ours, without an act of usurpation. Another tribunal is appointed to admin- ister the remedy, and we believe that, on proper application, it will Chase v. Miller. 237 (Place of voting.) administer it rightly, according to the evidence it may have ; and if we had doubts of this, we should still not be justified in interfering. Sad indeed, very sad, has been our recent experience of election frauds ; but we cannot believe that our partisanship has become so reckless, and our elective franchise so carelessly exercised, and our thirst for office and power so intensely selfish, that any official body will sanction so base and frightful a fraud upon the public as this now appears, or that any man deemed worthy of an office would accept it under such circumstances." Thompson v. Ewing, 1 Brewst. 67, was another case in which certain forged military election returns (commonly known as the " SchimpfiUer fraud") were attempted to be set up, for the purpose of defeating the will of the people as expressed at the polls. Weaver v. Given, 1 Brewst. 140, also exhibited a case of forged military returns, from a regiment stationed in Louisiana, in which no election whatever had been held. And the experience of the courts fully justified the remarks of the supreme court in Chase «. Miller. In California, under a somewhat similar clause in the constitution, re- quiring a district residence, the supreme court fully adopted the reasoning of the Pennsylvania court in Chase v. Miller, and decided, in a lengthy argument, by Judge Shafter, that an act which provided for taking the votes of the electors in the military service, outside of the respective counties of their legal residence, was unconstitutional and void. Bour- land v. Hildreth, 26 Cal. 161. In Connecticut, the judiciary came to the same conclusion ; Opinion of the Judges, 30 Conn. 591 : and in New Hampshire also ; Opinion of Justices, 44 N. H. 633. In Ohio, however, a similar statute was held not to be so clearly in conflict with the provisions of the constitution,' as to justify the court in declaring it unconstitutional. Lehman v. McBride, 15 Ohio St. R. 573. And in Iowa, the supreme court, whilst acknowledging the force of the reasoning of Judge Woodward, in Chase v. Miller, decided that such legislation was valid, on the ground that their constitution did not re- quire a district residence. Morrison subjecting them to the delay incident to technical actions at law ; so far has the law giving us the power, gone, that all right of reviewing our proceedings and decisions is taken away from the supreme court, our determination of every question arising, being absolutely "final and conclusive." If we should now accord this request to the respondent, we, of course, must do so to every other contestant or respondent in an election con- test, involving disputed questions of fact ; under such a system, what becomes of the promptness of action and decision, demanded by the public interest and feeling, con- templated by the legislative provisions? Delay must take place in preparing and setting down such an issue for trial ; after a trial of the most tedious and expensive kind, the jury may disagree (one dissenter from the rest being adequate to produce that result), and their consequent discharge ; another and another trial may follow, with like results, until one of the parties, weary with delay, or bankrupt in prosecuting his rights, abandons them in despair; should a jury ever agree, either party might, during the trial, claim bills of exception to the admission or rejection of testimony; writs of error might follow, and the litigation be thus further protracted. A system tending to such results, might suit the party having the return, who, in the meantime, holds the honors and re- ceives the emoluments of the office ; but it would operate most unjustly to the contestant, if rightly entitled to the return. The law gives us the power of a legislative elec- tion committee: how would a proposition be received, made to such a committee trying the contested election of a governor, a judge of the supreme court, an auditor- general or any other of the high elective officers of the state, to cause proceedings to be instituted in a court, to try the question before them by jury? As I doubt such a 362 Knbass's Case. (Issue and recounting of ballots. ) proposition ever being seriously made, I am at a loss to suppose how it would be seriously answered. But this application came too late, if it bad been admis- sible under appropriate circumstances. This investigation commenced on the 12th of February, and had been pro- gressed in until the 7th of March, when this application was first made; all the contestant's witnesses in chief, amounting to hundreds, and part of the respondent's, had been heard; if a jury trial had been desired or contem- plated by either party, ought it not to have been demanded at the outset of the proceedings? The specifications ad- mitted clearly pointed out, that questions of fact, and grave questions, too, were involved in the inquiry ; so that it cannot be argued, that the knowledge of such questions existing in the cause, was only disclosed by the examina- tion of the witnesses. Under such circumstances, would it be just in a court to adopt a practice that would permit a party to delay his application for a jury trial, until all his adversary's case had been fully disclosed to him, and then grant it? Such a delay alone, in my opinion, afibrds, in itself, an adequate reason for refusing the application, if none other existed. To a court, the reference of such a question to a jury, might be a grateful and desirable transfer of an oppressive public duty, to a body not directly responsible to the people. But would this be an execution of the duty imposed upon the judges by the law?' or would it not be an evasion of it? II. In reference to the application made to us, to order a recount of all 1jhe ballot-boxes of the city and county, I remain of the same opinion as that originally expressed when the motion was made ; I believed it then, and I be- lieve it now, inadmissible in principle ; and even if admis- sible, not to have been made in a suitable stage • of the proceedings. In the case of the contested election of sheriff Lelar, we held, after full argument and delibera- tion, that to induce us to order a recount of all the ballot- boxes of a county election, something definite must be Kneass's Case. 363 (Issue and recounting of ballots.) preferred against each ; and that we could not, on a general allegation of errors believed to exist in all, authorize the perilous experiment of testing every election return, by the count of the ballot-boxes of every district in the county. "We then refused to Mr. Deal a recount of all the ballot-boxes of the city and county, because, although he complained of general errors in the count of all, he designated particulars in none. We refused this appa- rently reasonable request, from a deep sense of the danger that would follow, if we should too readily accede to such plausible requisitions ; we saw that if we once acquiesced, on general allegations of error in the count, we would be bound by the result of such a count, and that thus we might be made the instruments of defeating the popular will, by affording convenient means of accomplishing it. We knew we were bound to order an examination of the boxes, and a recount of the ballots, whenever the return of a particular election district was assailed, for causes stated with sufficient precision to induce us to entertain a complaint preferred against it ; we felt that further than this it would be unwise to go, and on that ground our foot was placed, from which it never since has been, nor ever will be moved. The contestant, in his original petition, demanded such a recount, for supposed error, stated in the same way as has been done by the respondent ; this was refused by the court, although accompanied with precise allegations affecting particular districts, judged by us to be adequately stated to authorize an inquiry into them ; surely, we can- not now accord to one party, that which, from great public considerations, we refused to the other, though asked at the outset of this investigation. But, as in the instance of a demand for a trial by jury, I am of opinion, that this demand for a recount was not made at the appropriate time. Campbell, J., dissented.* * See 1 Phila. 169-70. 364 Kneass's Case. (Issue and recounting of ballots.) That the parties have no right to claim an issue, in a contested elec- tion case, was decided by the supreme court of Pennsylvania, in Ewing V. Filley, 43 Penn. St. R. 389 ; it was there said, by Lowrie, C. J., de- livering the opinion of the court: "It is objected that the act of 1839, instituting this form of proceeding, is unconstitutional, in so far as it deprives a party, claiming a right to a public office, by a popular elec- tion, of a trial by jury of all disputed facts. If this objection is well founded, then every step in the official organization of the state, or in the perpetuation of its organization, might stand in need of the sanction of a jury, and is potentially subject to the delays and ex- pense of a jury trial, except in the election of governor and members of the legislature, in relation to which the constitution makes special provision. Then all the laws providing for contested elections of councilmen in every city and borough of the state, are unconstitutional ; then all the numerous laws regulating the manner of contesting election returns of judges, prothonotaries, registers, district-attorneys, justices of the peace, constables, military officers, and all state, county, town and township officers, except governor and members of the legislature, are unconstitutional and void; and contrary to the practice of the peo- ple and their officers in all departments, the state cannot organize itself without the aid of juries ; then also the act of 1799, which made the governor the judge of contested elections of sheriffs and coroners, was unconstitutional. This objection, therefore, has a fearful sweep, if it has any force, and we should stand appalled before it, if we should feel its force to be equal to its pretensions. We do not feel it so. It is not in the act of organization of the state, nor in the perpetuation of its organic succession, but in the administration of rights under the organi- zation, that the constitution secures the trial by jury. The jury is the popular element in the determination of rights which need enforcement by means of the state organization ; but there is a much larger popular element in our elections, the votes of all the people ; and all our political practice shows that we have not considered a jury an essential means of deciding contested elections of public officers. We see nothing but inexpediency, to prevent the legislature from declaring that the process of election should end with the general return, and that that should be conclusive evidence of title to office or commission ; but they have wisely chosen not to do so, and have appointed the court to finish the process, if the general return be contested, by a proper review of the Kneass's Case. 365 (Issue and recounting of ballots.) return of the election officers ; and as they haye not required that the court should have the aid of a jury for this part of the process, any more than for any previous part, no such aid can be demanded, of right, by either party, nor is it allowable." A jury trial was likewise refused in Thompson v. Ewing, 1 Brewst. 67, 96. It has been determined, in Alabama, that the ballots themselves are higher evidence of the number of votes cast, than the certified lists of the election officers, and that the lists may be corrected by them. State V. The Judge, 13 Ala. 805. But the decision in Kneass's Case was ad- hered to, in Pennsylvania, in Thompson v. Ewing, 1 Brewst. 67, 97, where it was said, that in no case will the court order a recount of the ballot-boxes, except on a specific allegation of fraud. " The sworn return of the officers," said Judge Thompson, " should not be swept away in this manner." Nor, it seems, will a recount be ordered merely on an allegation of fraud, until some evidence be adduced to sustain it. Ibid. 98 ; Kline «. Myers, 2 Cong. Elect. Cas. 574. 366 Eeed v. Kneass. In the Court of Quarter Sessions of Philadelphia. DECEMBER SESSIONS 1850. (Reported 2 Parsons 584.) [ Competency of witnessesJ] An elector is not bound to disclose for whom he voted. But this is the privilege of the voter, and one that he may waive ; if he voluntarily testify for whom he voted, he is a competent witness to do so. The petitioners in a contested election case are competent to prove for whom they voted. King, P. J., delivered the opinion of the court. To prove the undueness and falsity of the returns in two of these districts, the election district of Penn, and the Second ward, Moyamensing, 230 witnesses have been ex- amined, to show that they actually voted for "W. B. Eeed, for the office of district-attorney, whereas, according to the official returns, he received but 120 votes in both. Of these witnesses, ten were among the petitioners com- plaining against the return of Mr. Kneass as undue and fraudulent. In regard to this testimony, two questions have been raised : 1. It has been contended that, according to the constitution of Pennsylvania, the testimony of a citizen is not admissible, in any case, to show for whom he gave his ballot, at an election: 2. That a petitioner, contesting an election as undue and fraudulent, is not a competent witness, because of supposed interest, resulting from his liability under certain circumstances, to the payment of the costs of proceeding. I. The first question arises under that clause of the con- stitution which declares that " all elections shall be by ballot, except those by persons in their representative capacity, who shall vote vivd voce." The respondent con- Reed v. Kneass. 367 (Competency of witnesses.) tends, in order to exclude the testimony of these witnesses, that this provision was not simply intended as a security to the elector for the free and independent exercise of the right of suffrage, but, from considerations of public policy, it operates to prevent the voter, under any circumstances, from disclosing, before a judicial or other tribunal, how he voted. If a voter be excluded from proving the contents of his ballot, from considerations of public policy, which require that such ballot should ever remain secret, the fact as to how he voted cannot be proved in any way ; because the policy which excludes proof by himself, equally applies when it is proposed to be given by a third person. It, therefore, would follow, from the position assumed, that, under no circumstances and in no manner, can the contents of a ballot, given by an elector, be proved, in Pennsylvania, even though the elector himself be willing and anxious to make such proof, in order to show that his true ballot has been suppressed or changed by those whom the law au- thorizes to receive and requires faithfully to report it. This is a startling proposition ; and it is not the less so, from being now, for the first time, asserted in this state ; in which the vote by ballot, in forms variously modified, has prevailed from the earliest periods of our political history. No statesman, no legislator, no judge has ever suggested it ; and the universally received public opinion always has been, that the vote by secret ballot was a means devised to secure to all citizens, poor or rich, humble or lofty, the free and independent exercise of their own judgment, in the choice of public agents, and in the expression of their opinion of public men and public measures. So understood, the vote by secret ballot is an efiicient means of maintaining the great republican principle, that all governments derive their legitimate authority from the consent of the governed; expressed without restraint, coercion or intimidation. But like all other personal privileges, the seal of secrecy may be taken 368 Reed v. Knbass. (Competency of witnesses.) off his ballot by an elector, whenever circumstances exist which, in his judgment, require it to be done ; and surely, none more urgent can exist, than when the elector wishes to make such a disclosure of his vote, in order to vindicate it from gross errors or fraudulent practices, which have, in effect, deprived him of it. The only precedents found in the history of the state, show this ever to have been the opinion of Pennsylvania statesmen, legislators and judges. In the case of the con- tested election of Frederick Wolbert, as sheriff of this county, which occurred in 1807, the testimony was taken by commissioners, among whom was Mr. E,eed, the late recorder of this city, and Judge Hallowell, my immediate predecessor as president of this court ; some of the wit- nesses appear to have voluntarily testified for whom they voted for sheriff; but all seem to have been told by the commissioners, that they might answer such a question or not, at their pleasure. The report of these commis- sioners was submitted to and acted upon by Governor McKean, who had been long chief justice of the state, and was a member of the convention which framed the constitution of 1790, where the existing provision respect- ing the vote by ballot is to be found. If the statesmen and lawyers of that day had entertained any such idea as that now urged on us, it scarcely would have failed to strike a mind of the keen perceptions possessed by that eminent man.* In the case of the contested election of Thomas S. Eell, senator from Chester- and Montgomery counties, which occurred in 1838, the question was suffered to be put to the various witnesses, as to how they voted for senator; the witnesses declined answering, and of course, were not coerced ; the senate committee, composed of gentlemen of both political parties, men of distinguished character and great public experience, unanimously reported that it was * Every day's experience shows the utter worthlessness of such mib silentio decisions, as those cited. Reed v. Kneass. 369 (Competency of ■witnesses.) a constitutional privilege of the voter to decline replying to a question as to how he voted, and that he could not be compelled to disclose it, though he might waive the privi- lege at his own discretion.* And this reasoning is certainly in harmony with the received opinion of the state, before or since. Although the vote by ballot prevails in most states of the union, the industry of counsel has not been able to produce a single authority, legislative or judicial, denying the principles stated in the report of the senate committee in the case of Mr. Bell; the same result has followed all the investigations I have since been able to make. The points adjudged in the two cases, cited from the 'Hew York and Michigan reports, do not seem to me, di- rectly to touch the precise question presented by the objec- tion taken to these witnesses, which is, whether a voter can, under any circumstances, prove, of his own free will, how he voted by ballot at a public election. The case of People v. Ferguson, 8 Cow. 102, involved the question whether a citizen could be heard to prove that, in depositing a ballot for H. F. Yates, he meant to vote for Henry F. Yates, one of the candidates at the election. This, the supreme court of New York adjudged hitn competent to do, considering the oath of the elector higher evidence of what he intended to do, than the opin- ion of any other person judging merely from the face of the ballot. Of course, the court must have considered him competent to prove how he voted by ballot, other- wise he could not have explained what his ballot meant. The direct question before us seems to have been taken for granted.f * The latter point was not in any shape before the committee, as the witnesses had declined to answer. t It is now held, in New Tork, that a voter may testify for whom he voted ; and he may also he asked for whom he intended to vote, as a circum. stance tending to prove for whom he did actually vote. People v. Pease, 27 N. T. 45, 72. His mental purpose, however, in depositing his ballot, is 24 370 Ebed v. Knbass. (Competency of witnesses.) The Michigan case, People v. Tisdale, 1 Doug. 59, arose under similar circumstances, the court ruling directly op- posite to the previous decision in New York. The ground, however, on which the decision rests is, that the intention of the voter in giving his ballot is to be collected from- the face of the ballot itself, and cannot be proved by parol. It is simply the application of the ordinary rule of the law of evidence, that the intention of a written instrument cannot be explained by parol, but that the instrument must speak for itself.* The point before us is of quite a different character; it is not, whether an elector can be permitted to prove how he intended to vote by a particular ballot, deposited by him, but what ballot he actually de- posited ; the testimony is offered, not to prove an intention, but to establish a fact. It is not pretended, that there is any direct constitu- tional injunction, legal provision, or judicial decision of Pennsylvania, which excludes the testimony of electors offered under the circumstances of this case. The pro- priety of excluding them is supposed to flow from public policy; because of the danger of perjury; and because per- mission being given an elector to prove his ballot, might be used as a means of extracting from him how he voted, and thus affect the principle of the secret ballot. I do not deny, that obvious considerations of public policy might justify a construction of a law or a constitution to an ex- tent not necessarily required by the letter of either; but such considerations must be manifest and convincing ; this, I suppose, will be admitted. I will first test the reasons urged in favor of the proposed construction of the consti- tution by this rule; I will then examine whether there not admissible, as an independent fact ; liis intention is to be inferred from liis acts. People v. Saxton, 22 K.Y. 309. The point stated in the text was re-afflrmed in People v. Cook, 8 N. T. 67. * This point was re-afflrmed, in Michigan, in People v. Higgins, 3 Mich. 233, and People v. Cicott, 16 Mich. 283. And see State v. The Judge, 13 Ala. 805. Eeed v. Knbass. 371 (Competency of ■witnesses.) are not political considerations of infinitely greater force, whicli demand an exactly opposite construction of the clause. If either or both tests show the position of the respondent to be unsound, it must necessarily be rejected. The apprehension of perjury, if a legitimate objection, in itself, to a witness, might exclude every witness, in every cause, inasmuch as there is none in which a witness, if he be sufficiently profligate, may not swear falsely ; such an apprehension can never operate to exclude a witness otherwise competent. I grant, that when the temptations to perjury are manifestly great, the tribunal called upon to give credit to a witness so circumstanced, should ex- amine his testimony closely ; in such cases, the exception goes to the credibility rather than the competency of the testimony. This reason, in my opinion, forms no adequate objection to the admission of these electors as witnesses. As to the effect of such a disclosure, made by an elector, on the principle of the secret ballot: if the elector could be compelled to disclose his vote under any circumstances, the danger deprecated is readily appreciable ; but when an elector comes into a court of justice ready, willing and anxious to testify as to his vote, in a proceeding instituted for its vindication, it is difficult to extract from such a state of things the idea of putting in peril the sanctity of his ballot. An ingenious mind may, indeed, be able to fancy instances in which permitting a voter to be interro- gated as to his ballot, with his own consent, might be used to his injury; but the possibility of such a result cannot, certainly, deprive him of the right to disclose his ballot, when the direct object of that disclosure is to protect it. Assuredly, such speculative dangers bear no comparison with the real ones which might arise from the falsification of a voter's ballot, and the impunity which would follow, if courts or legislatures should refuse to suffer an elector to prove how he voted, in an inquiry like the present. Let the doctrine be once established as constitutional law, that an elector cannot be heard, in such a case, to prove 372 Reed v. Kneass. (Competency of witnesses.) how he voted, in order to establish the falsity of an election return, and the suflrage of every man in the common- wealth is placed under the control of the election officers, who may make him appear to have voted exactly as they please. According to this doctrine, if five out of six hun- dred voters, in a given district, should vote for one candi- date, and their votes should all be returned as given to another, no adequate means exist in any body, legislative or judicial, in the commonwealth, to relieve against so crying a wrong ; for, by refusing to hear the testimony of the electors to prove how they voted, the establishment of the fraud, in such case, would be impossible ; and yet this doctrine is seriously urged upon us as a preservative of the sanctity and security of the vote by ballot. This would be a mode of guarding the elective franchise of the good people of the commonwealth, which their straightforward common sense would surely reject and repudiate. So far from this construction of the constitution tending to preserve and perpetuate the vote by ballot, it would inevitably lead to its extirpation from our political system ; for what independent and reflecting man would rest satis- fied with a system which subjected his most precious po- litical rights to such abuses, without means being afforded him to detect and redress them? What tempting facili- ties would be afforded, under such a system, to unscrupu- lous partisans, to deal with- the ballot-boxes so as to make them express their own rather than the sentiments of the true and honest electors ! "We have been admonished as to the danger which might result from the infiuences of wealth and power, operating on the cupidity or the fears of electors, so as to induce them to misrepresent the man- ner in which their votes were actually given, if permitted to testify in a proceeding like this ; but is not the peril infinitely more imminent, that wealth and power may ope- rate on four or five election officers, so as to induce them to falsify a return, which the construction proposed would render, in effect, conclusive ? One of the strong arguments Reed v. Kneass. 373 (Competency of witnesses.) in favor of universal suffrage is, the absolute impossibility of corrupting a large constituency. The system proposed would avoid the necessity, by confining the operation of such corrupting influences to a select few, whose assertion, in the form of an election return, is made so sacred, that the oaths of hundreds or thousands of citizens cannot be heard in contradiction to it, simply because such citizens are electors, and may all be perjured. All arguments which, in my opinion, can be drawn from sound and practical policy, are in favor of the re- ceipt of the testimony objected to. The true policy, to maintain and perpetuate the vote by ballot, is found in jealously guarding its purity; in placing no fine-drawn metaphysical obstructions in the way of testing election returns, charged as false and fraudulent ; and in assuring to the people, by a zealous, vigilant and determined in- vestigation of election frauds, that there is a saving spirit in the public tribunals charged with such investigations, ready to do them justice, if their suffrages have been tampered with by fraud, or misapprehended through error. II. The remaining question is, as to the competency of petitioners to prove how they voted. In the view I take of this case, this question is not of practical importance in the decision, because, if the testimony of the petitioners objected to, eleven in number, should be stricken from the record, the result I have arrived at would be the same. The objection to the petitioners is put on the ground, that they are parties to the proceeding, or interested in its results, being liable, under certain circumstances, to the payment of the costs. But the petitioners, in an election contest, are not the parties ; this is settled by the 159th section of the election law, which enacts, that" in all contested elections, as aforesaid, the person returned, and the candidate next highest in vote, shall be the parties in the trial thereof." The objection to the petitioners, on the ground of their liability to costs, rests on that clause 374 Reed v. Knbass. (Competency of ■witnesses.) of the election law under which we may, if convinced that the petition has been prosecuted without probable cause, award a certificate to that effect; in which event, the petitioners would be liable to costs. This is not like the liability of an individual, subject absolutely to the pay- ment of costs, if the case terminate one way; the dismissal of the petition does not involve the payment of costs by the petitioners ; to produce such a result, we must certify the proceedings to have been without probable cause. An interest disqualifying a witness, must be some legal, certain and immediate interest, however minute. "Where, however, he has but a probable interest, this goes only to his credibility, and not to his competency. 1 Greenl. Ev. §§ 386, 400. The liability of petitioners in election contests, is not as direct as that of prosecutors in indictments for misde- meanors. In all this great class of cases, the jury which determine the issue must, in the event of an acquittal, decide whether the prosecutor, the defendant or the county shall pay costs. The law has been in force for near fifty years, and thousands of prosecutors have been examined in our courts, as witnesses, without a doubt ever having been entertained of their competency, although under a contingent liability for costs, if their complaints should be adjudged vexatious or frivolous. There are other cases of a public character in which witnesses having even a direct interest in the result are heard. Thus, a witness who is to receive a reward from government, con- sequent on the conviction of an offender, is nevertheless competent ;* so, a prosecutor, when part of the sentence following the conviction, is the restoration of property feloniously taken from him, is still a competent witness.! And why do these apparent anomalies exist? Because the proceedings on which such witnesses are heard, are public, affecting the peace, order and common safety of * United states v. Wilson, Bald. 78. t United States v. Murphy, 16 Peters 203. Reed v. Kneass. 375 (Competency of witnesses.) society ; and can anything exist in whicli the community have a deeper interest than the purity and accuracy of the ballot-box, the foundation of our whole political system, and which, if not preserved intact, may end in its subversion? If public policy ever could authorize a modification of the rule which excludes a witness having the most minute but direct interest, this is surely the case.* But this, however, is one in which the liability is uncertain and contingent. This reasoning would have applied, had the petitioners been offered as witnesses for every purpose of the case ; but they were offered only to prove for whom they voted. My brother Kelley, in expressing his views in favor of the admission of the testimony for this purpose,t placed its admissibility on the ground of absolute necessity ; he assimilated the case to that of one whose property has been stolen from a public-house, or from a railroad-car or steamboat, or where such property has been destroyed by a mob. He truly says, that " if absolute necessity admits a departure from the ordinary rules of evidence in these cases, how much more absolute is the necessity for admit- ting a petitioner to prove how he gave a ballot ; a thing, of course, existing in his exclusive cognisance." To this it may be urged, why should such persons become peti- tioners ? The answer is obvious ; it is only the persons who have the required knowledge, that can properly pre- sent a complaint ; two of them, at least, must swear to its truth, and all of them, certainly, should have a moral consciousness, that its allegations, from facts within their own knowledge, are well founded. The practice of committees in contested elections, in the English house of commons, has been cited ; this, it seems, excludes petitioners from testifying.:]: Such a * See Cornwell v. Isham, 1 Day 35 ; Hindson v. Kersey, 1 Day 80 n. t 1 PhUa. R. 162. t 3 Dougl. 166 ; Tomlins 129. In England, a voter, who is not a peti- tioner, whilst deemed incompetent to establish his right to vote (1 Lud. 376 Ebbd v. Kneass. (Competency of witnesses.) practice can surely have no binding obligation in a Penn- sylvania court of justice. The precise question here in- volved, to wit, whether an elector, also a petitioner, is a competent witness to prove how he voted by secret ballot, never could present itself to such a committee, the vote by ballot being unknown to them. I am, therefore, of opinion, that, for the reasons assigned, no error was com- mitted, in admitting the eleven petitioners to prove how they voted, which was all that was done. Campbell, J., dissented. That a qualified elector cannot be compelled to disclose for whom he voted, is a point well settled by authority. Easton v . Scott, 1 Cong. Elect. Cas. 273. It was said by the circuit court of Pennsylvania, held before Yeates and Smith, JJ., in 1800, that "no citizen is compellable to declare how he has given his suffrage." Eespublica v. Eay, 3 Teates 66. And so far has this principle been carried, that a qualified elector who voted after the legal time for closing the polls, was held to be protected, although his vote was an irregular one, and not entitled to be counted in the returns. Case of Locust Ward Election, 4 Penn. L. J. 341. It does not, however, protect one who has voted, not being a qualified elector ; such a person is a mere intruder, and entitled to none of the privileges which appertain to legal voters. McDaniels' Case, 3 Penn. L. J. 310 (ante 346). In Michigan, the protection of the secret ballot is extended so far, that not only cannot a legal voter be compelled to disclose for whom he voted, but no one else is permitted to give testi- mony upon that point, unless the elector himself have, at the time of voting, made the contents of his ballot public, by his own consent; no knowledge of its contents, obtained without his consent, is admis- sible; nor is evidence of his own statements concerning his vote, whether made before or after casting it, unless accompanied by an exhibition of its contents. People v. Cicott, 16 Mich. 383. In Penn- 388 ; Tomlins 123), is admitted as a competent witness to prove for whom he voted, in order to correct a mistake of the entry in the poll-book. 2 Lud. 405 ; Tomlins 16, 126. Reed v. Eneass. 377 (Competency of witnesses.) sylvania, however, testimony aliunde is admitted to prove how a par- ticular elector voted. Read ■». Kneass, Pamph. Trial 17. In congress, the testimony of the voter himself is received, to prove his own vote. Loyall «. Newton, 1 Cong. Elect. Cas. 533. The rule appears to be equally well settled, that where a person has voted illegally, he is bound to disclose, on oath, for whom he voted, or the fact may be established aliunde. McDaniels' Case, 3 Penn. L. J. 310 (ante 346) . But this power will not be exercised by the courts, unless the illegality of the vote be free from doubt; the seal of secrecy affixed to it by the constitution ought not to be broken, except in a very plain case. Case of Locust Ward Election, 4 Penn. L. J. 349. In Michigan, it is said, that where a voter's qualifications are disputed, the same protection from scrutiny into his ballot, is to be preserved, so long as there is any controversy as to his legal right to vote ; but that when the illegality of his vote is not in controversy, such immunity ceases, and the contents of his ballot may be proved, without his consent. People v. Cicott, 16 Mich. 383. In Wisconsin, it is decided, that the privilege of refusing to testify for whom the witnesses voted at an election, is strictly con- fined to those who were legally entitled to vote at such election, and does not extend to those whose votes were received in violation of the registry law. State v. Hilmantel, 33 Wis. 433. An illegal voter, how- ever, may decline to answer for whom he voted, on the ground that it might criminate himself; but in such case, the contents of his ballot may be shown by other testimony. State v. Olin, 33 Wis. 309 ; Mann v. Cas- sidy, Pamph. 69-70. The election law of Pennsylvania of 1839 expressly provides that a committee of the legislature, on the trial of a contested election case, may compel any person, not a legally qualified elector, who voted at such election, to disclose, under oath, for which of the respective candidates he voted. Purd. Dig. 890. 378 HowAED V. Shields. In the Supreme Court of Ohio. DECEMBER TERM 1865. (Reported 16 Ohio State Eeports 184.) ^JSlecfion papers.] A regular and perfect tally-list Is prima facie evidence, on a contested election, of the votes therein set forth. If the judges or clerks of an election omit to sign the poll-books or tally- sheets, to fill up blanks in the caption, or to state the aggregate number of the voters, these and the like omissions may be corrected by parol ; and the documents, when so corrected, are competent evidence of the result of the election. Error to the Common Pleas of Brown county. The facts of the case are stated in the opinion of the court. Louden and Shane, for plaintiff in error. Thurman, for defendant in error. "Welch, J., delivered the opinion of the court. The original case was an election contest ; Howard had been declared elected sheriff of Brown county, and Shields, an elector and rival candidate, contested his election, under the provisions of the statute on that subject. In the com- mon pleas, the contest was decided in favor of the contest- ant, and he was declared duly elected; to reverse this judgment, the present petition in error is presented. The errors assigned are numerous, but may be substan- tially reduced to three: the first is, that the court erred in overruling the motion of the respondent to dismiss the case, for uncertainty and insufficiency of the notice of contest. (The learned judge, after a full consideration of the suffi- ciency of the notice, under the Ohio statute, proceeded as follows:) Howard v. Shields. 379 (Election papers.) The second error assigned is, that the court rejected the tally-sheets and poll-books of three several elections held in the army, under the acts passed for that purpose. These tally-sheets were in conformity to law, and unobjectionable. The defects in the poll-books accompanying them were, that the number of voters was not stated at the foot, and did not appear otherwise than by counting the names, and that they were not signed by the judges and clerks ; in other respects they are regular and according to law. The names of the judges and clerks are recited in the cap- tion of the poll-books, and are signed to the affidavit which stands immediately below the place where they should have signed the poll-books. These tally-sheets were received and counted by the county-canvassers, and form part of the abstract made out by the clerk ; the re- cord shows that they were rejected by the • court below, together with so much of the abstract of the county- canvassers as consisted of the votes therein evidenced. In rejecting these papers, we are satisfied the court erred. The tally-sheet alone makes a primd facie case ; it is upon the tally-sheets alone that the county-canvassers declare the result ; the poll-books are not sent to them. If the tally is good before them, it should, until impeached, be good before the court; the policy of the law seems to be, that, until the contrary is shown, the tally-sheet shall be taken and considered as a true statement of the number of legal votes cast for each candidate ; of course, it is open to be impeached by the other party ; but it is hardly necessary to say, that an informal or defective ac- companying poll-book, in no way contradicting its state- ments, is not an impeachment. If, however, the poll-books were indispensable, was there not, substantially, a sufficient signing to make them valid as such ? The judges and clerks signed the affidavit ; we have, then, their oaths and their signatures ; would an additional signature add anything to the verity of the paper? I think not; I think the requirement to sign at 380 Howard v. Shields. (Election papers.) the foot, and the requirement to state the whole number of votes (a matter which can be obtained from the body of the poll-book), should be considered as merely directory, and not as absolutely essential. The original act, which requires the county-canvassers to make their abstract from the poll-books, and not from the tally-sheets, declares, that "no election shall be set aside for want of form in the poll-books, provided they contain the substance." 1 S. & C. Stat. 539, § 33. If these were defects in substance and not in form merely, it is enough to say, that the tally- sheets were perfect and unimpeached. The remaining assignment is, that the court erred in excluding parol evidence offered by the respondent, to sup- ply defects in the tally-sheet and poll-book of an election- held in the 70th regiment, Ohio volunteer infantry. In this case, the tally-sheet and poll-book are both defective. The tally-sheet has the proper recitals in its caption, of the time, place and military organization; and of the names of the judges and clerks; but it is not signed by the judges and clerks. The poll-book is properly signed by the judges and clerks; but it has no recitals in the caption, the blank spaces being unfilled. Each, taken separately, is substantially defective ; and yet, both taken together, show all the necessary facts. In order to supply these defects, the respondent offered, in connection with the tally-sheet and poll-book, sundry depositions, taken before justices under the notice, fully authenticating the tally- sheet and poll-book, as the tally-sheet and poll-book of said election, actually kept and made out by the judges and clerks who signed the poll-book, and at the time and place, and in the regiment named in the tally-sheet; and that the voters credited to Brown county thereon, were residents of said county. This evidence, as well as the tally-sheet and poll-book to which it referred, was rejected by the court. The question presented by this assignment of error is Howard v. Shields. 381 (Election papers.) important, and so far as we know, has never been directly before the court. That question is, can the court, in try- ing a contested election, go behind the poll-books and tally-sheets, to supply and correct mere omissions and mistakes in them, by parol evidence? "We have no hesi- tation, either upon principle or authority, in answering the question in the affirmative. For what other purposes the court can go behind them, it is not for us now to decide ; much less is it necessary, in the present case, to undertake to draw the line between what is merely direc- tory and what is vital, in the provisions of law regarding such documents ; the question is not best determined in that way ; such provisions may be considered directory for one purpose, and vital for another.* The provision, for instance, that the poll-book shall be signed by the judges and clerks, may be vital, as to the poll-book per se, and yet directory as regards the legality of the election itself. The question to be decided in an election contest is, which party received the greatest number of legal votes ? If the court can, as it necessarily must, go behind the ab- stract, why should it not also go behind the poll-books and tally-sheets ? And if it go behind the latter for any purpose, one of the first and most obvious would seem to be, to cure mere mistakes and formal omissions. If you may impeach them by parol, why not sustain them by parol? We apprehend the true rule to be, that both the abstract and the poll-books and tally-sheets, when sub- stantially correct upon their face, are prima facie sufficient, but rnay be impeached by evidence aliunde, showing their falsity or insufficiency; and that, when not so substan- tially correct upon their face, they may be sustained in the same way. To hold that when an election has been in fact held, and the majority of the legal voters have in fact, and according to the prescribed forms of law, cast * Another illustration of the impropriety of vesting such discretionary powers in an elective judiciary. 882 Howard v. Shields. (Election papers.) their ballots for the candidates of their choice, the consti- tutional rights of the voters and of their candidates, can be defeated by a mere misprision or omission of the judges or clerks, would be manifestly Unjust, and contrary to the plain intent and spirit of our election laws. Such a result should be permitted only in cases of necessity, arising from the want of proper means to ascertain, with reliable cer- tainty, the facts of the case ; such is not the case here. We have all the facts, and they are not, as the case now stands, disputed ; they are contained in the poll-book and tally-sheet, supported by the parol evidence; together, they show an election held according to law, and the pre- cise number of votes actually cast for each candidate. To this evidence, the contestant demui-s ; we think that such a demurrer, in an election contest, is not well taken. That in such a contest the court, unlike the canvassers, can go behind the tally-sheets and poll-books, seems well settled in N^ew York, and we are shown no authority to the contrary elsewhere. People v. Cook, 8 N. Y. 67 ; People V. Van Slyck, 4 Cow. 297; People v. Ferguson, 8 Cow. 102; People V. Vail, 20 "Wend. 12. In the last-named case, the court, in speaking of the injustice of a contrary holding, said, " it would be nothing less than saying, that the will of the people, plainly expressed in the form prescribed by law, must be utterly defeated, by the negligence, mis- takes or fraud of those who are appointed to register the results of an election." And again, "I think we are bound, in this proceeding (a quo warranto), to go back to the town canvass, and rectify the errors in the statement of the inspectors." In Ohio, we have but a single dictum on the question, and that is in Ingerson v. Berry, 14 Ohio St. R. 325, where the judge delivering the opinion, in speaking of the powers of the court, says, " it is clothed with full power to judge. of the validity of ^e returns as shown by the poll-books, and to go behmd them and inquire into the legality of every vote which they exhibit." Howard v. Shields. 383 (Election papers.) We are satisfied the court erred in rejecting the three perfect tally-sheets and their accompanying defective poll- books; and also in refusing the defective poll-book and tally-sheet, so sustained by parol evidence. Of course, when admitted, they will be subject to impeachment by counter-testimony of the contestant ; what would have been the final legitimate result, had they been so ad- mitted, it is not for us to say ; it is enough to know, as the record shows, that if not so impeached, or overcome by other evidence, their effect would have been to change the result, and that, therefore, the error was one appa- rently to the prejudice of the plaintiff in error. The judgment must, therefore, be reversed and the cause remanded for further proceedings. Judgment reversed. It is well settled, that the election papers, though conclusive upon the return judges or canvassers, maybe impeached, on a quo warranto or con- tested election, where the question is, which candidate actually received the greater number of legal votes. People«.Vail, 20Wend. 13; Common- wealth V. County Commissioners, 5 Kawle 77. They are to be considered as prima facie true and correct, but may be vitiated by faults and irregu- larities ; the design of the law in requiring them to be filed by the officers of the election, is to afford the highest evidence by which the true vote of every elector may be ascertained ; but, like all other documentary evidence, they are subject to be impeached by proof aliunde. Mann v. Cassidy, 1 Brewst. 13, 48. Where the poll -books, tally-sheets and returns substantially comply with the statutes, and all formal mistakes and omissions are supplied by the other evidence in the case, and these, when taken together, clearly tend to show the result of the election, they can- not be properly excluded from the consideration of the court. Powers «. Reed, 19 Ohio St. R. 189. Even if it be shown that they were left, for some days, in an exposed condition, and that they have been in some respects altered, they are admissible in evidence, their fairness and alteration being matters for investigation by the court and jury. State v. Adams, 3 Stew. 231 (ante 288-9). And unless their loss be proved, or 384 Howard v. Shields. (Election papers.) their non-production accounted for, parol evidence of their contents cannot be received. Olive «. O'Riley, Minor 410; Sinks «. Reese, 19 Ohio St. R. 306. The court, however, on the hearing of a contested election, will not take notice of the papers on file, unless they have been referred and made part of the petition and record in the cause. Carpen- ter's Case, 2 Pars. 537. See United States «. Bonders, 3 Abbott U. S. Rep. 456. For the purpose of showing that a person voted, the poll-list is admis- sible in evidence, though not signed by the inspectors or clerk, having no heading to denote its character, and never having been filed in the clerk's office. People ». Pease, 37 N. Y. 45. If the register or poll-list, when produced, contain, upon its face, after the list of names written in ink, other names in pencil, followed bythe word " sworn," it is evi- dence that these latter were not registered voters, but that th-eir names had been added at the polls. State v. Hilmantel, 33 Wis. 433. It may be shown by parol, that ballots cast for a person by the initials only of his name, or by an abbreviation of his Christian name, were intended for one of the candidates. People e. Ferguson, 8 Cow. 103 ; People v. Cook, 8 N. Y. 67. In Michigan, however, it was held, that a ballot cast for J. A. Dyer could not be counted for James A. Dyer, though the use of a common and well-understood abbreviation would not vitiate the ballot. People v. Tisdale, 1 Doug. 59 ; People ». Higgins, 3 Mich. 333 ; People «. Oicott, 16 Mich. 283. (But see ante 258-68. ) The ballots themselves are better evidence of the number of votes cast, and for whom cast, than the tally -list made from them by the officers of the election. People t. Holden, 38 Cal. 133. The general rule requiring the produc- tion of the best evidence of which the case in its nature is susceptible, applies in respect to the contents of poll-books, tally-sheets, and the number and contents of ballots cast at an election, where the production of the same is attainable. Sinks «. Reese, 19 Ohio St. R. 306. 385 People v. Pease. In the Court of Appeals of JSTew York. JUNE TERM 1863. (Eepokted 27 New Yoek 45.) [^Evidence in contested election cases.] The question whether a voter was or was not duly qualified, is not con- cluded hy the decision of the inspectors ; it is open to examination, in suh- sequent proceedings, upon any competent evidence. It seems, that the declarations of a voter, though hearsay evidence, are competent to prove his want of qualification. A voter, called as a witness, may be asked for whom he voted, and if he decline or be unable to state, circumstantial evidence. may be received to prove the fact ; and he may be asked for vyhom he intended to vote, as one of the circumstances bearing on the question. For the purpose of showing that a person voted, the poll-list kept at the election is admissible, though not signed by the inspectors or clerks, hav- ing no heading denoting its character, and never having been filed in the town-clerk's office. Where the evidence is, that one who voted, was alien bom, the presump- tion is, that he voted legally, and was duly naturalized ; aliter, if there be prima facie evidence that he had not become a citizen by naturalization or otherwise, in such case, the burden of proving his naturalization is cast on the party desiring to retain the vote. This was an action in the nature of a quo warranto, to try the title to the office of county treasurer of the county of Lewis. The defendant had a verdict and judgment in his favor, which was affirmed at the general term, and from that affirmance the plaintiff appealed. The facts of the case are sufficiently stated in the opinions of the judges. Starbuck, for the appellant. Kernan, for the respondent. Da VIES, J. The charge of the judge at the trial, and the exception taken by the relator, present the main queS- 25 386 People v. Pease. (Evidence in contested election cases.) tion in controversy in this action, and the only one of importance demanding consideration. It is certainly a question far-reaching in the results which must follow its determination, for, upon its just decision, must depend the value and purity of the elective franchise. When we reflect that, under the present constitutional provisions in this state, we not only elect all legislative officers, but most of our judicial, executive and administrative, it cannot fail to be seen, how vital it is to the success and permanence of our institutions, that the voice and will thus expressed be those of the persons constitutionally qualified thus to speak. It is of but little moment that constitutional qualifications, as preliminary to the exercise of the elective franchise, are prescribed, and that those thus entitled exercise that right, inestimable to freemen, if per- sons having no such qualifications may exercise the same right, and thus thwart and subvert the will of the legal voters. Such, certainly, could never have been the intent of the framers of our system of government; and such results, it has never been heretofore supposed, were to be anticipated from our elective system. By the fifth section of the first article of the constitu- tion of the United States, each house is declared to be the judge of the election returns and qualifications of its own members. A similar provision, as applicable to our state legislature, is found in the constitution' of this state. Art. III., sect. 10. And a like provWbn in most, if not all, of the charters of the various municipal corporations of this state, will be found, as applicable to the election of the members of the common councils thereof. So far as I have been able to discover, the rule is universal in all legislative bodies, to scrutinize the qualifications of the voters, and to deduct or disallow all votes cast for any candidate by non-qualified voters. This rule seems to be well established in such cases, and it is not perceived, that any substantial reason can be suggested, why a different People v. Pease. 387 (Evidence in contested election cases.) one should obtain in a civil siiit or proceeding to deter- mine the right of an individual to a particular office. This rule was distinctly recognised and affirmed by the house of representatives, in the election case of Val- landigham v. Campbell, 41 Cong. Globe 2317. In the extended debate had upon that case, all the members con- ceded that the votes of illegal or non-qualified electors must be deducted or disallowed ; and the main point of diffisrence, in the discussion, was, as to the manner of establishing such disqualification. It was contended by some members, that it could only be shown by the oath of the voter himself, whilst others maintained, that hear- say evidence of such disqualification was admissible. Numerous precedents are cited at page 2320, fully sanc- tioning the doctrine, that hearsay evidence can be received ; at page 2319, a case is cited, where, before the election committee of the house of commons, in England, Mr. Maule objected that the declarations of one John Nowlan were not evidence against the sitting member; Mr. Thes- siger (since Lord Chancellor, now Lord Chelmsford), in reply, said : " In the Southampton case, it was held, evi- dence may be given of the declaration of a person, even after voting, though it may tend to affect him with penal consequences ; in the Ripon case, the voter had stated to two persons, in the months of June and July 1832, that he had no vote, and that his aunt was tenant of the house ; the election took prace in the beginning of 1833, and the declarations were held admissible. A voter who has voted for the sitting member, is always considered as a party, and it is on that ground, that his declarations are admis- sible ; the question is always considered to be between the voter and the party questioning his vote, and not merely between the sitting member and the petitioner." The committee resolved that the evidence should be received. The constitution of this state declares who may exercise the elective franchise ; those entitled to vote at any elec- tion are, every male citizen of the age of 21 years, who 388 People v. Pease. (Evidence in contested election cases. ) shall have been a citizen for ten days, and an inhabitant of this state for one year next preceding any election, and for the last four months a resident of the county where he may offer his vote. Art. II., sect. 1. It follows, that none others than those possessing these qualifications can law- fully vote. All votes are to be by ballot, and offered to the inspectors of election, on the day of the election ; and it is made, by statute, the duty of each inspector to chal- lenge every person offering to vote, whom he shall know or suspect, not to be duly qualified as an elector. 1 Rev. Stat. 433, § 36. And § 41 (same page), declares that, in case any inspector of election shall knowingly and wil- fully permit or suffer any person to vote, at any election, who is not entitled to vote thereat, the said inspector so offending, on conviction, shall be adjudged guilty of a mis- demeanor. If a person offering to vote be challenged, it is made the duty of the inspectors, to administer to the voter the preliminary oath prescribed by the statute, and to put such questions to the voter as may tend to show his right to vote ; and if any person shall refuse to take such pre- liminary oath, or to answer fully any questions which shall be put to him, his vote shall be rejected. I Eev. Stat. 430, §§ 18-20. If the person offering to vote shall persist in his claim to vote, after the inspectors shall have pointed out to him wherein his right to vote shall appear to them deficient, the inspectors shall then, if the challenge be not withdrawn, administer the general oath set forth in the statute ; if the oath is refused to be taken, the vote is to be rejected. Ibid. 430, 431, §§ 21, 22, 24. It is seen, therefore, that the inspectors have no au- thority, by statute, to reject a vote, except in these three cases : after refusal to take the preliminary oath ; or fully to answer any questions put ; or on refusal to take the general oath. And the only judicial discretion vested in them is, to determine whether any question put to the persons offering to vote, has or has not been fully answered. If the questions put have been fully answered, and such People v. Pease. 389 (Evidence in contested election cases.) answers discover the fact, that the person offering to vote is not a qualified voter, yet, if he persist in his claim to vote, it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot-box. • These are all the safeguards the legislature have thought proper to provide, to ensure the prevention of fraudulent or illegal voting ; and this leaves but little discretion to the inspectors.; their duties, except in the single instance adverted to, are simply ministerial in the reception of the votes, and entirely so,, in counting and making returns thereof. The legislature have left to those bodies having the power to judge of the return and election of their own members, to correct any abuses which may have resulted in such election ; and to judicial investigation, where the legal rights of indi- viduals are concerned or affected, to apply such remedies as the nature of the case calls for. An action is prescribed by law, in the nature of a quo warranto, to determine, as well the question of usurpation of the person in office, as the claim of the person asserting his right thereto; in this action, the determination dis- poses as well of the public interest as of the private right.. It is not of so much importance, so far as the public is concerned, which of two claimants shall discharge the duties of an office ; but the private right of an individual to the fees and emoluments of an office, is properly and legitimately the subject of judicial cognisance, and to adjudicate upon this right, it becomes essential to deter- mine who was legally and duly elected or appointed to it,, and who is entitled to discharge its duties, and receive and enjoy its fees and emoluments. The provisions of the Code, in reference to this action, are ample to cover and secure, as well the interests of the public, as the private rights of the parties; the determination of those rights necessarily leads to an investigation into the title of the claimant to the particular office, and such investigation 390 People v. Pease. (Evidence in contested election cases.) must result in a determination of the legality of the elec- tion or appointment of the one or the other. It is made the duty of the board of county-canvassers, upon the statement of votes given, to determine what person, by the greatest number of votes, has been duly elected to any office mentioned in said statement. 1 Rev. Stat. 438, § 10. County treasurers of the several counties of this state are to be elected at a general election, and hold their office for three years. Ibid. 406, § 17. And the certificate of the board of canvassers authorized to canvass the votes given for any elective office, is made evidence of the election of the person therein declared to have been elected. Ibid. 410, § 22. But such certificate is only jprimd fade evidence of the title of the person re- ceiving it, to the office therein mentioned; in all cases where the proceeding is by quo warranto, or in an action of that nature, it is held, that such proceeding is instituted to try the right to the office directly, and it is competent to go behind the certificate, which would otherwise be conclusive, to ascertain the real facts of the case. People V. Seaman, 5 Denio 409 ; People v. Ferguson, 8 Cow. 102 ; People V. Van Slyck, 4 Cow. 297; People v. Vail, 20 Wend. 12. In this last case, Bronson, J., says, "such proceeding reaches beyond those evidences of title which are conclu- sive for any other purpose, and inquires into and ascertains the abstract question of right:" he also says, "in those legislative bodies which have the power to judge of their own members, it is the settled practice, when the right of the sitting member is called in question, to look beyond the certificate of the returning officer ; and I think a court and jury, with better means of arriving at truth, may pursue the same course." But while it is conceded, that this proceeding is to ascertain the very right of the person to the particular office, and that, by means of it, any negligence, mistake or fraud of the inspectors or canvassers in their proceed- ings may be corrected, yet, it is contended, if the inspec- People v. Pease. 391 (Evidence in contested election cases.) tors have received and allowed votes to a party, given by persons not qualified to vote, such proceeding is final and conclusive, and the party thereby defrauded of an office to which he was duly elected, by having received the greatest number of legal and qualified votes, has no re- medy, but must submit, as well to the loss of the office as of the fees and emoluments growing out of it. I can- not assent to such a proposition. What is it that confers title to the office, and the legal right to the reception of its emoluments? It surely is the fact, that the greatest number of qualified voters have so declared their wishes, at an election held pursuant to law. It is not the canvass or estimate or (jertificate which determines the right; these are only evidences of the right, but the truth may be inquired into and the very right ascertained. When it is so ascertained, the legal consequences follow, that the person usurping the office is ousted, the person legally entitled takes the office and its fees, &c., and recovers from the usurper the fees or emoluments belonging to the office, received by him, by means of his usurpation thereof. If the term of the office should have expired before the final determination of the question, it follows, that the success- ful party cannot take the office, but he will be none the less entitled to recover the fees and emoluments to which he was legally entitled, which may have been received by the usurping claimant. 1^0 w, can a person be deprived of the fees, &c., by the votes of persons not qualified to cast them? It would seem, that the statement of the proposition furnishes its own answer. The constitution prescribes who may vote, and it is needless to say, that none others can lawfully do so; but if, through inadvertence, fraud or mistake, the votes of persons having no right so to vote are taken and counted for a particular candidate, and he is thereupon, by reason of counting and allowing such votes to him, declared duly elected to a given office, and enters upon the discharge of its duties, and receives the fees and 392 People v. Pease. (Evidence in contested election cases.) emoluments pertaining thereto, can lie interpose such ille- gal votes to the claim of the person rightfully elected by the greatest number of legal and qualified voters? Can he make title to the office, by the votes of those who have no legal or constitutional right to vote, in other words, by the wishes of those not voters? In my opinion, clearly not ; the very right to the office is determined by the fact, to whom was the greatest number of legal and duly quali- fied votes given? Or suppose, that instead of the voting having been by ballot, it had been vivd voce, and the re- lator in the present case had 1702 persons declaring for him, for county treasurer, and the defendant 1698, and of those declaring_for the relator, it conclusively appeared on the trial, that ten, fifteen or twenty of those thus declaring for him were women, minors or aliens, and thus not voters, and that all those declaring for the defendant possessed the legal qualifications of voters, could there be a mo- ment's doubt as to which was legally entitled to the office? I do not see that there could ; and the supposed case is, in substance, that now under consideration. How can those who have no legal right to interfere with, or be heard at an election, deprive the legal and qualified voters of their legitimate choice, or the person duly elected by them to an office, of its emoluments and advantages? A vote is but the expression of the will of a voter; and whether thQ formula to give expression to such will, be a ballot or vivd voce, the result is the same ; either is a vote. It is a paradox to say, that a vote can be given by one not a voter, and as it is the greatest number of votes which elects a candidate and gives title to the office, it follows logically, that those ballots given or handed in by persons not voters, are not votes, and cannot, therefore, be right- fully estimated, or have any influence upon the result. Ordinarily, there would be great difficulty in separating or ascertaining which ballots were legal, and which have no validity whatever, as being given by non-voters; but in the case at bar, it is clearly ascertained, that five ballots People v. Pease. 393 (Evidence in contested election cases.) or votes, given and counted for the relator, were oast or given by persons not qualified to vote, and he, consequently, in truth and in fact, had five votes less than have been counted and allowed to him. They must, therefore, be subtracted from the total vote allowed to him ; and such subtraction leaves him a less number of votes than were given for the defendant. In the case of People t;. Yan Slyck, 4 Cow. 297, Jones, J., arguendo, saya, "to make a choice of the defendant, within the provisions of the statute, there should be a majority of legal votes ;" and such seems evi- dently to be the view of the court. It hardly needs argu- ment or illustration, to show that the votes contemplated by the framers of the constitution, and by the legislature, in declaring the person having the highest number of votes should be elected, and entitled to the particular office, meant thereby legal votes — those, and those only, cast by voters possessing the constitutional qualifications. In my opinion, ballots cast by females, minors, aliens or those not having the constitutional qualifications, are not votes, within the meaning of our constitution and election laws. Cole on Quo Warranto 110 (citing a num- ber of English cases), lays down these propositions, which harmonize with the views already suggested: he says, that the party may not have been duly elected ; this may hap- pen, although he was qualified to be elected, and the election itself was neither void nor irregular, as, when he did not obtain a majority of legal votes. The burgess-roll is primd facie evidence of a party's right to vote as a burgess, at an election ; indeed, no question can be put to him as to his right to vote, but only to his signature to the voting-paper delivered in by him, and his identity with the person named in the burgess-roll, and whether he has already voted at that election ; but the burgess-roll is not conclu- sive as to the voter's title, upon an application for a quo warranto information against the party elected, and there- fore, the relator may show, by affidavit, that although the defendant had a colorable majority at the election, yet, that 394 People v. Pease. (Evidence in contested election cases.) certain of his votes were bad ones, for specified reasons, and that, deducting such bad votes, the relator or some other candidate had the majority of legal votes. So, it may be shown, that some of the voting-papers for the de- fendant were defective and insufficient, and that, deduct- ing them, the defendant had not a majority of legal votes. The same doctrine was enunciated in the case of Rex v. Vice-Ohancellor of Cambridge, 3 Burr. 1647, where a man- damus was awarded to put the Earl of Hardwicke into the office of High Steward of the University of Cambridge, on the ground that one of the votes given against him, which produced a tie, was an illegal vote, cast by a person not having the right to vote ; the proctors had declared the vote to be equal, and therefore, no election. Lord Mansfield, after discussing the qualifications of Mr. Pitt, whose vote had been given against the Earl of Hardwicke, and thereby produced a tie, arrived at the conclusion that he was not a legal voter ; and if so, he says, there is a majority of one for Lord Hardwicke, unless the other side can disqualify some of those who voted for him ; he fur- ther says, " the declaration of the proctors cannot affect . the substantial right ; the right of election appears to be in Lord Hardwicke, and I am very clear, that the foundation of the rule should be the election." Justice "Wilmot said, " as to the declaration of the proctors — ^I think it imma- terial, for the question depends, not upon that, but upon the real majority of legal votes; this declaration cannot alter or affect that ; if they had made a declaration, and even if such their declaration had been contrary to the truth and real right, the court must have taken up the matter upon the true and real merits, for the right to the office attached in Lord Hardwicke, upon his having a majority of legal votes." "If he had a real right, this court ought to give activity to it, and the omission of a declaration of the proctors, or the falsity of it, cannot affect their judgment concerning the legality of the right." " Therefore," he adds, "Lord Hardwicke had the majority of legal votes." People v. Pease. 395 (Evidence in contested election cases. ) "We have seen, from the authorities and cases cited, that the practice is universal, when a scrutiny is instituted to determine the right to an office, by legislative bodies, to reject all votes given or cast by persons not duly qualified to vote ; . and upon such investigation, the declarations of the person casting the vote have been admitted and re- ceived as evidence of his qualification or want of qualifi- cation. It is hearsay evidence, and yet, upon well-settled and uniform practice, has been allowed. The learned note to 3 McCord 230, on hearsay evidence, distinctly announces this doctrine ; he says, under the 28d head, the declarations of a voter may be given in evidence to set aside the election, as to diminish the poll, by taking an incompetent vote off, or to prove bribery, &c., but they are not admissible on a charge against the candidate for bribery, &c. ; they are admitted to annul votes, but not to set aside the election by disqualifying the member on account of bribery, &c. ; citing the Case of Milborne Port, 1 Dougl. Elect. Cas. 67; Case of Joel Chester, 1 Ibid. 76; Petersfield Case, 3 Ibid. 6 ; Worcester Case, 3 Ibid. 129 ; Shaftsbury Case, 3 Ibid. 150. The doctrine is referred to with approbation in 2 Cow. & Hill's Notes 322, and the learned note in 3 McCord is referred to as the source from which the editor has obtained the remarks and references quoted by him. These writers, and the cases cited by them, distinctly recognise the doctrine, that upon a scru- tiny had in reference to the validity of an election, the votes given by unqualified voters may be deducted to diminish the poll, by being taken off as incompetent, and the votes so given may be annulled, or disregarded or rejected. In the case at bar, the disqualification was proved by the voter himself; but these authorities abun- dantly sustain the position, that the declaration of the voter, as to his want of qualification, would have been admissible and legal evidence. It is urged, however, that the act of the inspectors, in receiving and depositing the ballots, is judicial, and there- 396 People v. Pease. (Evidence in contested election cases.) fore, cannot be reviewed in this action. It is supposed, that the contrary has been satisfactorily shown, and that the universal practice of the courts in actions or proceed- ings like the present, where they have inquired into the very right of the case, refutes this assumption. In the case of People v. Van Slyck, 4 Cow. 297, it was urged by the counsel for the defendant, that the certificate of the determination of the board of canvassers was conclu- sive evidence of the election; that it could neither be impeached nor contradicted ; that the authority exercised by the board of canvassers was judicial; and that if the supreme court had jurisdiction to review the determina- tion of the board of canvassers, their reviewing power could only be exercised through the medium of a certio- rari, and until reversed in that form, it remained valid and conclusive, and could not be questioned by an information in the nature of a quo warranto. These views were repu- diated by the court, in that case, which held, that the act of the canvassers was not judicial, but merely ministerial, and that the trial in quo warranto, is had upon the right of the party holding the office. This doctrine was pro- mulgated nearly forty years ago, in this state, and has, so far as I can ascertain, been acquiesced in and sustained in all cases, and I think it ought not now to be disturbed. In People v. Ferguson, 8 Cow. 102, it was urged, that the court could not go behind the ballot-boxes; that such a principle would be of the most dangerous tendency: Chief Justice Savage most correctly said, that the object of an election is, that the person receiving the greatest number of votes in his favor, shall have the office desig- nated by the electors ; that he could not assent to the pro- position, that you may not look beyond the ballot-boxes for testimony, because of the danger of perjury and subornation of perjury ; he considered the question fairly before a jury, and to be proved, like all other facts, by the best evidence that the nature of the case admits of. "We were much pressed with the argument, that it would People v. Pease. 397 (Evidence in contested election cases.) be attended with great inconvenience, if we permitted a party to try hia right to an office, by showing that his adversary received a greater mirnber of illegal votes than the ascertained majority given him. It was said, that in a general state election, the time necessarily occupied in such a trial might consume more than eighty-three years. It is the first time I have ever heard it urged, that a party who had a conceded right should not have a remedy to enforce it, because a large consumption of time would take place before his right could be established ; if a party has a legal title to an office, it surely can be no legal rea- son for denying him the opportunity to establish it, that such process will require the examination of a large num- ber of witnesses, and consume much time in the proceed- ing; rights of parties cannot be determined on such a basis. The case of Hex v. Cambridge only required the examination into the qualification of one voter, and it was entertained by the court of King's Bench, but not for that reason ; Ex parte Murphy, 7 Cow. 153, involved an inquiry as to two illegal votes, and it clearly would have been entertained, if they had influenced the result of the election. The case of People v. Cook, 14 Barb. 259, s. 0. 8 E". Y. 57, involved an inquiry into the title of the contestant to the office of state treasurer, and who had been voted for at a general state election ; I do not find it was urged in that case, that the action ought not to be entertained, on the ground of inconvenience, or the great length of time which was occupied in the investigation. The views expressed by Judge Willard, in this court, in the case of People v. Cook, are sound and should be adhered to ; he says, " we are not called upon to say that every possible question under the election law may be cor- rected in this way ; it is enough, that the principle con- tained in People v. Ferguson sustains the ruling of the court below ; that case has stood the scrutiny of more than a quarter of a century, and has neither been disturbed by the' new constitution, nor the repeated revision of the 398 People v. Pease. (Evidence in contested election cases. ) election law ; I see nothing in the present case that re- quires us to depart from it:" he adds (and what he says is as applicable to the present case as to the one then under consideration), " nor is there any danger to be apprehended to the security of our institutions by pursuing this prac- tice ; the right to an office is no higher than a right to life, liberty or property ; there is no principle that should withdraw the first from the cognisance of a court and jury, to the exclusion of the last ; both will, indeed, be safe under the administration of the ordinary tribunals." "We think, therefore, the charge of the judge at the cir- cuit, that it was to be determined upon the evidence adduced, which candidate had the most lawful votes, and if they found that the defendant had the greatest num- ber of legal votes, then he was entitled to the office, and their verdict should be in his favor, was correct, and that the verdict, on that ground, should not be disturbed. The motion to strike out the testimony of Conrad Hoch was properly denied ; it was for the jury to say, from the whole testimony, whether, in fact, his vote had been given for the relator; he stated unequivocally, that he voted for Smith, and on cross-examination, he testified, that it was said Smith's name was on the ticket ; that was all he knew about it. It was for the jury to say, from all the circumstances related by him, whether or not he voted for the relator ; we are to assume, that they believed he did. The objections taken to the refusal to strike out the testimony of Shoat cannot, we think, be sustained; the witness had testified that he did not know whether he voted or not for Smith, and the other matters stated by him may be regarded as wholly immaterial. The other exceptions do not seem to call for any further obser- vation. It seems to us, that the judge was correct in stating to the jury, that when it was proved that a man was alien born, and there was primd facie proof that he had never been naturalized, or otherwise become a citizen, the vote People v. Pease. 399 (Evidence in contested election cases.) given by him must be stricken out ; and the burden of proving citizenship, was either upon the voter, or the party- claiming his vote to be legal ; if the views herein expressed are sound, then this charge was unexceptionable. Bo was that part of the charge correct in relation to the witness Eivinot, who testified, that he was born in France and had voted, and there was no evidence tending to show that he had ever been naturalized ; the judge in that case charged, that the legal presumption was, that he had been natu- ralized. 1^0 suggestion was made or evidence given, when the witness was on the stand, that he had not been natu- ralized ; he had voted, and the presumption was, that he had voted legally ; it was not for the court to say, as mat- ter of law, that the vote was illegal ; in this state of facts, the presumption was, that he was a legal voter, not that he had committed a crime. On the same ground, the court might have been asked, if he had stated he was native- born, that his vote be excluded, because it was not proved that he had attained the age of twenty-one years; the legal presumption would be, that he had legally exercised the privilege of voting, until some facts appeared which would raise a contrary presumption. The judgment ap- pealed from should be affirmed with costs. Selden, J. This action, like the action of quo warranto, and the proceeding by information in the nature of quo warranto, where the defendant is in the exercise of the duties of an office, involves the question of his right to exercise those duties, and the burden of proof rests upon him to establish his right; "the. trial is had upon the right of the party holding the office." 4 Cow. 323 ; Cole on Quo "Warranto 221. Where,, as in the present case, the relator is a claimant of the office, the trial also involves his right as well as the right of the defendant. Code of Procedure, § 436; 12 N. Y. 433; 16 Barb. 373. It appears to have been assumed, at the commencement of the trial in this case, that the defendant (Diodate Pease) 400 People v. Pease. (Evidence in contested election cases.) had a primd facie title to the office, and the plaintiffs took the initiative to disprove his right and establish that of the relator (Moses M. Smith). The evidence produced by the plaintiffs vras unquestionably sufficient, in the absence of further proof, for that purpose ; according to well-settled rules, the board of canvassers erred in refusing to allow to the relator the 19 votes given for Moses Smith and M. M. Smith, the addition of which to his unquestioned vote, would have given him four majority over the defendant, after adding to his vote the three votes given for D. Pease, and one for Deodate Beas; and five majority, if the last- mentioned vote were not counted for the defendant, about the propriety of which there might be some question. 8 Cow. 102; 5 Denio 409. This state of facts must be deci- sive in favor of the plaintiff, if the position taken in his behalf be sound, that it is not competent for the court, in trials upon quo warranto, to go behind the ballot-box, and inquire into the qualifications of the voters whose ballots have been received. The first ground upon which this position is attempted to be sustained is, that inspectors of elections are judicial officers, whose decisions, in receiving the ballots of voters, are final and conclusive. So far as the subject has been touched upon by previous decisions, there is found little or nothing to sustain this position, and I am satisfied that it cannot be sustained. In the celebrated case, in England, of Ashby v. White (2 Ld. Eaym. 938 ; 1 Bro. P. C. 45), as finally decided by the House of Lords, officers having the power of our inspectors of election and boards of canvassers combined, were held to act ministerially, and not judicially, in holding elections and making return of the votes. In BuUer's K". P. 64, it is said, that an action on the case lies " for a wilful misbehavior in a ministerial office by which the party is damnified, as denying a poll to one who stands candidate for an elective office (such as bridge-master), and it need not be averred in the declaration, that he would have been chosen if the poll had been taken ; so for People v. Pease. 401. (Evidence in contested election cases.) refusing to take his vote at an election ; bo, for not return- ing him who is duly chosen ;" referring to 1 Yent. 55 ; 2 Lev. 55. In Jenkins v. "Waldron, 11 Johns. 114 (ante 190), the principle is recognised, that inspectors of election, in this state, are ministerial officers ; the action against the inspec- tors in that case failed, not because the defendants were held to be judicial officers, but because it was not shown that they acted with malice ; if they had acted as judicial officers, no civil action would have lain against them, even if charged with malice. 12 Co. 24; 1 Salk. 396-7. In the case of People v. Turnpike Co., 23 Wend. 228, Cowen, J., says, "the office of inspectors is merely ministerial; on a given concourse of circumstances, well defined by consti- tution or statute, they are bound to receive or count votes and give certificates of election ; they have no more dis- ' cretion than a sheriff in disposing of real estate upon execution." Ex parte Heath, 3 Hill 47; People v. Seaman, 5 Denio 411. The position that inspectors of election are judicial officers would prove too much for the plaintiff's case. If they act judicially in receiving votes, they also act judi- cially in counting them, and declaring and certifying the result ; if their act be conclusive in the one case, it is con- clusive in the other, and the plaintiff must rest contented with their reports which, combined, gave the greatest number of votes to the defendant. Inspectors are required to decide some questions, but they are such as ministerial officers are often required to decide ; a county-clerk, before recording a deed, must decide whether it is legally proved or acknowledged, but his decision is not conclusive; a sheriff must decide whether the one whom he arrests is the person described in his process, but his decision is not judicial, and he acts at his peril. 6 Cow. 456. Under § 20 (1 Eev. Stat. 430), inspectors may be required to decide whether the person offering his vote has or has not refused to answer fully all the questions put to him, before they can reject his vote on the ground of such refusal; 26 402 People v. Pease. (ETidence in contested election cases.) under § 23, tliey must decide whether the voter is "a colored man" or not, before they determine what oath shall be administered to him; under § 28, they must decide upon the sufficiency of the record of conviction, before rejecting the vote of one challenged on the ground of his conviction of a crime, and if a pardon be produced, must pass upon the genuineness and sufficiency of the pardon; and under §§ 2 and 40, they may be required to decide what constitutes a bet or wager on the result of the election, before receiving or rejecting the vote of one challenged under those sections. In these cases, the inspectors may be required to decide important questions, and their decisions, for the purpose for which they are made, that of determining whether the votes shall be received or rejected, are final ; but I do not think they are conclusive with regard to the legality of ' the votes, when the question is presented in an action pro- perly instituted to try the right of a person elected to office, or defeated by the result of their decisions. They cannot call witnesses, they can receive no oral testimony, and no documentary evidence, unless the challenge is based on an alleged conviction of crime ; the necessities of the occasion absolutely preclude any more thorough in- vestigation, and demand an immediate and irrevocable decision; for this the law provides. In one respect the decision is final and conclusive, and that is, that the vote shall be received or rejected; but if my view of the inten- tion of the statutes be correct, it leaves the question open for more deliberate adjudication, whether the voter had or had not a right to vote. Great interests often depend upon these questions ; they lie at the foundation of the govern- ment, and it is of the utmost importance that the means of detecting and exposing fraud and imposition, and cor- recting error, should be such as to secure the confidence of the people in the ultimate result of elections. If, however, it be conceded that, in those special cases where express authority is given to the inspectors to receive People v. Pease. 403 (Evidence in contested election cases.) or reject votes, they act judicially, it does not follow that their judicial power extends to other cases. It certainly does not, if they have committed to them no discretion in regard to the reception of other votes. In my opinion, they have no such discretion ; with the exception of the cases to which reference has been made (viz : where the person offering his vote refuses to take the preliminary or appropriate final oath ; or refuses to answer fully all the questions put to him by the inspectors ; or has been con- victed of bribery or any infamous crime ; or has made, or is interested in, a bet or wager on the result of the election), there is no express authority given to the inspectors to reject any vote, and I regard it as entirely clear, that they have no such authority. The express authority given in these special cases would seem to exclude the idea of a general implied authority embracing all cases. The course required by the statute to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. 1 Eev. Stat. 430, §§ 18-24. The in- spectors are, first, to administer what is called the " pre- liminary oath," requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector; the statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter; if he refuse to take the oath, or to answer fully, his vote is to be rejected ; but if he answer fully, the in- spectors are required to point out to him the qualifica- tions, if any, in which he shall appear to them deficient ; if he still persist in his right to vote, and the challenge be not withdrawn, the inspectors are required to admin- ister to him the general oath, in which he states in detail, and swears that he possesses all the qualifications which the constitution and laws require the voter to possess; if he refuse to take the oath, his vote is to be rejected. Is, 404 People v. Pease. (Evidence in contested election cases.) not the inference irresistible, that if he take the oath, his vote shall be received? If his vote is to be rejected after he takes the oath, why not reject it before ? As I construe the statutes, the inspectors have no discretion left to them in such a case (where the person offering the vote is not shown by a record to have been convicted of crime, or, by his own oath, to be interested in a bet upon the election), but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood ; nor can they act upon their own opinion or knowledge. Another section of the statute strongly confirms this conclusion ; that sec- tion provides as follows: § 36. "It shall be the duty of each inspector to challenge every person offering to vote whom he shall know or suspect not to be duly qualified as an elector." It is evident, from this section, that the in- spector has no power to reject the vote, even when he knows the person offering it not to be a voter ; his duty is discharged by requiring the voter to submit to the examination, and to take the oath which the statute prescribes. In the next place, it is insisted, without reference to the decision of the inspectors, that the only examination of the qualifications of the voter which is permitted, is that which is or may be made before his ballot is received. An argument of some force in favor of this position, is derived from the fact, that it does not appear that the courts of this state, uppn the trial of actions like the present, have ever entered upon the investigation of the qualification of voters. This argument is substantially balanced by the absence of any refusal of the courts to do so, unless in a single case at circuit which has not been reported. The absence of precedents in favor of the action against returning officers, was strongly urged in the case of Ashby v. White, especially upon the argument in the People , v. Pease. 405 (Evidence in contested election cases.) House of Lords, but it did not prevail, and I do not think the kindred argument is entitled to much consideration in this case. The judgment, in cases of this kind, is required to be rendered " upon the right of the defendant, and also upon the rights of the party alleged to be entitled" to the office. Code, § 436. As was said by Bronson, J., in the case of People V. Yail, 20. Wend. 16, the action " reaches beyond those evidences of title which are conclusive for every other purpose, and inquires into and ascertains the abstract question of right." The greatest number of votes alone gives the right to an elective office in this state; and as no adju- dication can be had to determine the lawfulness of votes, before they are received, that question must be open to examination by courts afterwards, or there is no power anywhere in the government to discriminate between those which are lawful and those which are unlawful; indeed, if the rule contended for by the plaintiff be adopted, the distinction between lawful and unlawful votes ceases to exist when they reach the ballot-box. This objection is not answered, by referring to the sta- tutes requiring evidence of the right of the voter, before his vote can be received ; it is only when the right to vote is challenged, that any evidence is required, and there is room for great frauds to be practised, as well to prevent challenges, as to render them ineffectual when made ; the only evidence required, in any case, is the oath of the person offering his vote, nor is there any power (if the courts do not possess it) to deny to such oath the effect of honest and truthful testimony, although every one who hears it may know it to be false and fraudulent. JSTeither is it an answer to say, that the offender may be punished, as the government, if that were the only remedy, would have no means of defence against the direct results of such a fraud; I am unwilling to believe that, in a matter of such vital importance as the choice of all its elective officers, the state is thus exposed to assault. 406 People v. Pease. (Evidence in contested election cases.) The registry act was not in existence when the election now in question took place ; but if it had been, it would not have changed the aspect of the present question. Its only effect in this respect is, to require from the voter two oaths instead of one, making the oath equally con- clusive in each case. Laws 1859, eh. 380, § 5. It fur- nishes additional safeguards against the commission of frauds at elections, and may aid in securing the punish- ment of offenders, but it furnishes no means of protecting the government against the consequences of such frauds, and therefore, leaves the present question precisely where it stood before. In England, on trials of this nature, the legality of the votes is always open to inquiry, as it certainly is, in this country, in suits involving the election of officers of pri- vate corporations. Cole on Quo Warranto 146-221 ; Ang. & Ames on Corp., ch. 4., § 9; 7 Cow. 153; 19 Wend. 635. The comparatively narrow limits within which the right of suffrage is confined in England, deprives the decisions of courts in that country, upon this question, of much of the influence which would be justly due to them upon other questions ; and the decisions in corporation cases are still less directly applicable to that under consideration. Those cases, however, show that where the right to an office is in controversy, it is not, as a general rule, conclu- sively determined by the number of votes which the claimant may have received, but the further question whether the votes were legal, is open for consideration. Without deciding that question when it is presented, judgment cannot be rendered "upon the right" of the parties, as the statute requires. Code § 436. In contests in regard to elections to congress, the legality of the votes, as well as their number, has always been a subject of inquiry. Cushing Lex Pari. Am. § 198. And "I think a court and jury, with better means of arriving at truthj may pursue the same course." 20 Wend. 14. The inconvenience which, it is supposed, may arise on People v. Pease. 407 (Evidence in contested election cases.) the trial of such questions, from the great number of wit- nesses which may be required, especially in trials relating to state officers, has been relied on as a reason why it should not be held, that courts can pass behind the ballot- boxes, and try and determine the qualifications of the voters whose votes may have been received or rejected. This argument is certainly not without force, as cases may readily be imagined, where anything entitled to the name of a trial of the legitimate issues which such an action might present, would be literally impossible ; but believing, as I do, that the statutes have unquestionably left this duty to the courts, no inconvenience which could be anti- cipated, would justify courts in declining to discharge that duty, as far as possible. The past experience of the government has not been such as to induce the court to pay much heed to this argument from inconvenience ; so far as the books of reports show, there has been no case in the state, prior to this, where any such question has been presented, and this does not appear to have involved such a number of issues, or required the examination of such a number of witnesses, as to render the prospect of such trials alarming. But if this were otherwise, the remedy would belong to the legislature, and not to the courts. A rule of pleading requiring the parties to specify the votes objected to, and the grounds of objection, or a rule of prac- tice requiring an exchange of notices to the same efiect, and the limitation of the parties, in their proof, to the cases and grounds so specified (as is the practice in Eng- land, in regard to contested parliamentary elections), would go far to remove the difficulty, if it should be found to exist. Eoe on Elections, part 3, ch. 4. A similar practice is adopted when elections to congress are contested. 9 Stat. 568, § 1 (1 Bright. Dig. 254, § 14, and note a). My con- clusion, therefore, is, that the judge decided correctly at the trial, that evidence was admissible to show that votes received and counted for either of the parties, were given by persons who were not qualified electors. 408 People v. Pease. (Evidence in contested election cases.) There was no error in the ruling of the judge, that voters might be asked the question, for whom they voted. The only grounds of the objection appear to have been, that under our system of elections, which allows, indeed requires, the secret ballot (1 Rev. Stat. 426, § 17), it is not proper to compel a voter to disclose for whom he voted ; and that where the object is, to show that he voted ille- gally, and was, therefore, possibly, guilty of a misdemeanor, he should not be required to give evidence tending to establish his guilt. It is a sufficient answer to these ob- jections, that they are available only to the witness, and not to the party ; in regard to the last ground, there is the further answer (the witness having admitted that he voted), that an answer to the question, for whom he voted, could have no bearing upon his guilt or innocence. The objections to the order in which the proof of the facts should be introduced, involved the exercise of discretion merely, on the part of the judge, which is not, in such cases, reviewable on appeal. When a voter refuses to disclose, or fails to remember, for whom he voted, I think it is competent to resort to circumstantial evidence, to raise a presumption in regard to that fact ; such is the established rule, in election cases before legislative committees, which assume to be governed by the legal rules of evidence. Gushing Lex Pari. Am. §§ 199, 210. And within that rule, it was proper, in con- nection with the other circumstances stated by the witness, Loftis, to ask him for whom he intended to vote; not, however, on the ground that his intention, as an inde- pendent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote. The refusal to strike out the testimony of Conrad Hoch involved the same principle. The poll-lists of New Bremen and Croghan were right- fully admitted; the only fact in regard to them which was requisite to be established to authorize their admis- sion as evidence, appears to have been undisputed, viz: People v. Pease. 409 (Evidence in contested election cases.) that they were the poll-lists of these towns or districts, kept at the election in question. The provisions of the statute relative to such lists must be regarded, mainly, as directory only (14 Barb. 290-1; 8 IsT. Y. 89); and any failure to comply with such provisions, if lists were actually kept, would not justify their rejection, when offered in evidence. There does not appear, however, to have been any material departure from the directions of the statute, in keeping the lists ; neither a heading to show what the paper was, nor the signatures of the inspectors or clerks, was required. 1 Eev. Stat. 432, § 34; 436, § 57. The anterior filing of one of the lists was of no moment, so long as its genuineness was unquestioned. "What the lists proved or failed to prove, could not be considered in deciding the question of their admissibility. There was sufficient evidence offered by the defendant, to justify the refusal of the ruling asked for by the plain- tiff's counsel, " that no proof had been given to go to the jury, sufficient to overcome the five majority conceded to the relator," of the votes given. The judge could not be understood as ruling, that the proof was sufficient to over- come the majority, but only that it was sufficient to be submitted to the jury for their consideration as to its effect. The refusal to allow the examination of the witness, McEea, in reply to the defendant's proof, under the cir- cumstances disclosed in the case, presented only an exercise of discretion on the part of the judge, which ought not to be reviewed here. If there had been no arrangement made on the subject, at the close of the plaintiff's opening testimony, the evidence would have been admissible in reply, as a matter of right, and its rejection would have furnished good ground for a new trial ; but the express reservation, with the approbation of the court, of the right to call (at the close of the defendant's testimony, as I understand the arrangement) certain witnesses, who were named, "for the purpose of showing that illegal 410 People v. Pease. (Evidence in contested election cases.) votes had been cast at said election for the defendant," might properly be regarded as restricting the plaintiff to those witnesses only, in reply, on that subject, although the facts offered to be proved would have been proper in reply, and might have been proved by any witnesses, if no arrangement had been made. It is apparent, that the course attempted to be pursued, by the plaintiff might, if allowed, have operated as a surprise upon the defendant. The judge, in whose presence the arrangement was made, was much better qualified to decide, whether it was likely to do so, than this court can be. The arrangement had the effect to change, what otherwise would have been a question of right, into one of discretion. The first two exceptions to the charge present only the question, already considered, whether the qualifications of the voters could be inquired into on the trial, and therefore, require no further notice. The charge in rela- tion to the change of residence of Bellinger, was too clearly correct to require comment.* 4 Cow. 516, note 2 ; "Westlake on Private International Law 36. No doubt can arise in regard to the correctness of the charge, that where it was proved that a voter was alien-born, and there was prima facie evidence that he had not become a citizen by naturalization or otherwise, the vote given by him must be rejected, unless proof of his citizenship were produced. The refusal to charge, in the case of Rivinot, that if the jury found that he was an alien born, then, in the absence of any proof of naturalization, his vote must be disallowed; and the charge that, in such case, the legal presumption was, that he had been naturalized, presents a question of greater difficulty. As a general rule, affirm- ative facts are not to be presumed, but must be proved by * The charge in relation to Bellinger's vote was : that if he got married and went to live with his wile in another county, with intent to make that county his residence, that fact constituted a change of residence. People v. Pease, 411 (Evidence in contested election cases.) the party asserting tliem ; there are, however, some excep- tions to this rule, and the question presented by this part of the charge is, whether the case falls within any of those exceptions. I am of opinion that it does, and that the charge was correct. G-reenleaf, in his work on Evidence, says, "where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful posses- sion of property, the party making the allegation must prove it; for, in these cases, the presumption of law, which is always in favor of innocence and quiet posses- sion, is in favor of the party charged." 1 Greenl. Evid. § 80. The request to charge in this case involved, on the part of Eivinot, something more than a criminal neglect of duty or fraud ; if he voted without naturalization, the act constituted a misdemeanor. 1 Rev. Stat. 449, § 13. The presumption against positive crime, cannot be less strong, than the presumption against fraud or criminal neglect of duty; the negative, therefore, which was in- volved in the plaintiff's request, could not be presumed, but required to be proved by the party alleging it. Wil- liams V. East India Co., 3 East 192, 199; Rex v. Hawkins, 10 East 216; Powell v. Milbank, 2 W. Bl. 851. I can perceive no difference between the present case and one where the right to vote depends on residence. In the case of Commonwealth v. Bradford, 9 Met. 268, the defendant was indicted and convicted for voting at the general election in Boston, on the 11th of Ifovember 1844, when, as was alleged, he was not a qualified voter, not having resided in Boston the six months next preced- ing that election. It was proved, that the defendant resided at Kingston, until about the 1st of April 1844, when he went to Boston and entered into partnership there, with the express understanding that he should make that place his residence ; that he continued in Bos- ton until the election, with occasional returns to Kingston, 412 People v. Pease. (Evidence in contested election cases.) where his family remained until a short time before the election, when they removed to Boston; there was con- flicting evidence as to his declarations and intentions respecting his domicil. The judge, at the trial, charged the jury that, as "the defendant's domicil was at Kings- ton, until he acquired one in the city of Boston, the burden of proof was upon him, to satisfy the jury, affirm- atively, and beyond a reasonable doubt, that on the 11th day of May 1844, he had changed his domicil from Kings- ton to Boston, and then dwelt and had his home in that city." Chief Justice Shaw, in delivering the opinion of the supreme court upon this point, said, " the court are of opinion, that this direction was wrong, and that the burden of proof was still on the government, to prove that the defendant had no right to vote, and that he had not been an inhabitant of the city six months ; this, it is true, is a negative proposition, difficult to prove, but neces- sary in order to charge a party with a criminal offenx:e." On that ground, the conviction was set aside. In such cases, the presumption in favor of innocence overcomes the presumption, which would otherwise arise, of the non-existence of the fact not proved. To rebut such counter and stronger presumption, some positive evi- dence to establish the negative, is necessary. Calder v. Eutherford, 3 Brod. & Bing. 302 ; Phillips' Evid. 196. The negative in regard to naturalization would ordinarily be much more difficult to prove, than it would be in regard to residence, but the principle of both causes is the same. Rex V. Rogers, 2 Campb. 654; Rex v. Twyning, 2 B. & Aid. 386; Hicks v. Martin, 9 Mart. (La.) 47; 1 Cow. & Hill's Notes 423, n. 325, Full and conclusive proof, where a party has the burden of proving a negative, is not re- quired; but even vague proof, or such as renders the existence of the negative probable, is, in some cases, suffi- cient to change the burden to the other party. Calder v. Eutherford, 3 Brod. & Bing. 302, The last request of the People v. Pease. 418 (Evidence in contested election cases.) plaintiff's counsel was, therefore, properly overruled. The judgment of the supreme court should he affirmed. Judgment affirmed. Emott, Rosbkrans and Balcom, JJ., concurred. Denio, C. J., and "Wright and Martin, JJ., dissented. The principal question decided in People v. Pease, is as well settled as any question can be, both on English and American authorities. See Carpenters. Ely, ante 258; Keed ii. Cosden, 1 Cong. Elect. Cas. 353; Adams v. Wilson, Ibid. 873. So also, it would appear to be well estab- lished in England, that the declarations of a voter may be given in evi- dence to prove his want of the legal qualifications. Tomlins on Evi- dence in Election Cases 153, 178 ; 2 Dougl. Elect. Cas. 808-9 ; 3 Ibid. 12-18; 1 Peckwell 804; 2 Ibid. 395. And this was decided to be the law, in Wisconsin, in the case of State v. Olin, 23 Wis. 810, 819. But see the Case of Dresden, Cush. Elect. Cas. 201. That the presumption of innocence, where one who is alien-born has voted at an election, will prevail over the counter-presumption that he is still an alien, is also sustained by authority. New Jersey Case, 2 Cong. Elect. Cas. 19. The presumption of innocence is a favorite with the law, and though it may be rebutted by presumptive evidence, even in capital cases, it obtains both in criminal and civil proceedings ; thus, in Bex V. Twyning, 2 B. & Aid. 886, it was held, that where a woman married within a year from the time when a preceding husband had been heard of, there was a presumption that the first was dead when she married the second, and that it was incumbent on the other party to give evidence to the contrary. " This is a case of conflicting pre- sumptions," said Mr. Justice Bayley, " and the question is, which is to prevail ? the law presumes the continuance of life, but it also presumes against the commission of crime; and that, even in civil cases, until the contrary be proved. The case of Williams v. East India Co., 8 East 192, decided that the onus probandi lay, in such cases, on the other side ; for though, in ordinary cases, it would have been the duty of the defendants to have proved the notice, the court held, that inas- much as the combustible matter would have been a crime in the party 414 People v. Pease. (ETidence in contested election cases.) delivering it, it became necessary for the plaintiflF to prove tliat no such notice had heen given. And in Rex ®. Hawkins, 10 East 211, where the objection was, that the defendant had not taken the sacrament within the year, and it was said in answer, non constat, that the other party had not equally omitted to do so, the court held, that the pre- sumption was that he had conformed to the law." Breiden v. Paff, 13 S. & R. 430, was a case of the same stamp. As in all other cases, the evidence in a contested election must be relevant to the issue ; this principle was carried to a great extent in the case of Eeed a. Kneass, 1 Phila. 163-8, where the question was, whether or not the election officers had made a fraudulent return against the contestant by giving him but 94 votes, when it was alleged that, in point of fact, he received 150; it was proposed to be shown that, prior to the election, the witness visited the contestant on several occa- sions ; that it was agreed, that the witness should be one of the clerks of the election, the contestant being desirous that some person favor- able to himself should be among the officers ; that he so acted, and that he received a sum of $50 to favor the claims of Mr. Reed, though not for the purpose of corrupting him as an election officer ; the court, how- ever, rejected the evidence as irrelevant. It would seem, that the fact that one of the clerks of the election was the paid agent of the contestant, ought to have had some bearing on that case. But every point was ruled against the respondent, by the majority of the court, from the commencement of the hearing. No case has exercised such a mischiev- ous effect on elections in Pennsylvania as that|£ Reed ■». Kneass. It is competent for the contestant to prove lat a man noted on the poll-list, as voting, did not vote ; that certain lersons voted more than once, though the names in which they voted ■mere not given ; that one who voted was not a qualified elector ; that certmi persons whose names were unknown voted twice; that certain perSns were assessed in a previous year, but were not found when thpl assessment was made prior to the election contested ; that search had been made for persons alleged to have voted illegally, and the result thereof ; but what was said at a particular house is not evidence ; after search made for the list of taxables in the box, and failure to find it, a witness may be asked, whether he saw the list at the poll, and whether the officers wrote any- thing in the book, on election day ; it is also competent to show whether voters were challenged, were sworn and what they said. Mann «. People v. Pease. 415 (Evidence in contested election cases.) Cassidy, 1 Brewst. 12. It is also competent to show that an election officer stated, the morning after the election, that there was a discre- pancy between the ballots and the return ; also, that a person who voted was non compos mentis, without a finding in lunacy ; it may be shown for what ticket an unqualified voter asked at the poll ; that no scratched tickets were voted, or that a ticket voted by one not qualified had a mark on it by which it could be identified ; but it is not competent to show the description of ticket a man voted, by the type or its size ; nor what the distributor of tickets said, at the poll, as to the tickets he was hand- ing out; nor what ticket the person was distributing, from whom an unqualified voter obtained his ballot ; nor whether all the tickets of a certain party had on them the name of a particular person ; nor can an unqualified voter be asked, what ticket he voted ? the question should be, for whom did you vote for a certain office? so, a witness called simply to prove the hour in which -he voted, cannot be cross-examined as to his qualifications. Thompson ■». Ewing, 1 Brewst. 68-9. The fact of the residence of an elector, can be proved by others than the voter himself; but the testimony of persons who searched for and did not find certain voters in the election division, is entitled to but little weight. Weaver v. Given, 1 Brewst. 140. 416 Reed v. Kneass. In the Court of Quarter Sessions of Philadelphia. MARCH SESSIONS 1861. (Unreported.) '[Evidence — rebutting testimony.} Rebutting testimony is a thing dependent upon the sound discretion of the court, provided always, that it he relevant to the case. It does not follow, that because testimony may be admissible in chief, it is not to be received by way of rebuttal. In an election case, evidence is essentially rebutting, if it tend to explain away circumstances which have been advanced on behalf of the respon- dent, in order to destroy or affect the testimony which has been adduced by the contestant to sustain the allegations of his complaint. This was a proceeding to contest the election of Horn E,. Kneass, who had been returned as duly .elected to the of&ce of district-attorney for the city and county of Phil- adelphia, at the general election held in October 1850. It was alleged in the complaint, that the election officers of the Second ward, Moyamensing, had added to the list of voters a large number of names of persons who had not voted at that election. The aggregate of votes returned was 1223. The contestant, to sustain this allegation, proved that a Mr. Landon, who was No. 878 on the poll- list, voted about fifteen minutes before the time of closing the polls, and that, at that time, but few persons were voting and there was no press at the polls. To contradict this inference, the respondent proved by the assessor, that John Robbins, whose name was No. 957 on the poll-list, was duly assessed as a resident in Shippen street above Tenth street in that ward. The contestant, in rebuttal, called as a witness one Jeremiah Robbins, who stated that he resided in Tenth street the first door above Shippen street; that no person by the name of John Robbins Reed v. Kneass. 417 (Evidence — rebutting testimony. ) resided there ; and that there was no other J. Robbins in the ward but himself. The counsel then proposed to ask Mr. Robbins whether he voted at the last election, which was objected to on the other side. The question of the admissibility of the testimony was argued by Hirst and J. M. Bead, for the respondent ; and by St. Geo. T. Campbell for the contestant. King, P. J., delivered the opinion of the court. I have given this question much deliberation and reflection, and the conclusions I have arrived at, are the deliberate result thereof. In a court of justice, there are two sorts of testi- mony, direct and positive, and circumstantial and pre- sumptive. Direct and positive testimony, as well as ciir cumstantial and presumptive, given by a party plaintiff or complainant, may, of course, be rebutted by his opponent ; positive testimony he may rebut by positive testimony, or by circumstances outweighing the effect of that positive testimony ; and so with presumptive or indirect testimony. Now, in this case, the contestants, in order to sustain their position, allege that, after a certain hour, on the night of the election, a large number of votes were added to the list, of individuals who never, according to the circum- stances proved by them, could have bond Jide given their votes, as set forth in the election papers. To establish this fact, among other things, they brought Mr. Landon, whose name is on the pollrlist, No. 878, to prove that he voted between 10 and 20 minutes before ten o'clock; that, at that time, there was no press at the polls ; that very few persons were voting ; and that he left the polls, and proceeded to his house, in the vicinity, and that on his arrival there, the clock struck ten ; from this testimony, the contestants seek to infer, that the return of the oflicers must be fraudulent, since it is a moral impossibility, if Mr; Landon voted No. 878, at 15 minutes before ten o'clock,, for 345 more votes, which are necessary to constitute the 27 418 Reed v. Knbass. (Evidence — rebutting testimony.) aggregate of 1223, to have been given. Of course, the respondent found it expedient and proper to endeavor to shake the effect of that testimony ; to accomplish this, he first produced persons who actually voted, whose numbers are long subsequent to Mr. Landon's ; secondly, he called witnesses to show the appearance of individuals on the ground, whose names are on the list long posterior to Mr. Landon's ; and thirdly, he called the assessor, to show that many of the individuals, whose names are supposed to be fraudulently interpolated on the list, have the same names as persons that he had assessed at their proper residences. In connection with the last point, the respondent produced the official list of voters, to prove that many of the persons assessed were of the same name as the person who pur- ported to have voted posterior to the time when this fraud is alleged to have been perpetrated. It is perfectly competent to rebut all the statements thus offered by the respondent, and such evidence would be strictly rebutting testimony. You can rebut, not only the positive testimony directly tending to sustain any position attempted to be taken in a judicial inquiry, but you can explain away the circumstantial testimony, by which your antagonist has proposed to support any posi- tion taken by him. As to positive testimony, I presume it is not disputed; for instance, a party swears he voted 1^0. 1221, and his name is A. B. ; you could certainly show, by a person having the same name, and duly as- sessed, that he did not vote, and that there was but one person of that name in the ward ; this would not be dis- puted, as it would be the highest order of rebutting testi- mony. Can you not also contradict circumstances amount- ing to less than positive testimony? I think so; and we have done it with the last witness examined in this case ; for example, a man named "Winters is described as voting E'o. 947 ; Mr. Ringland was examined, and testified that he saw Mr. Winters on the ground, and that to the best of his recollection, he voted ; he did not say lie actually Reed v. Kneass. 419 (Evidence — rebutting testimony. ) voted, but it was a strong expression of opinion to that effect, though not a positive assertion of the fact. What inference, then, was proposed to be drawn from the testi- mony of Mr. Ringland ? was it not, that Mr. "Winters had voted? and if his testimony had not been explained, who would have hesitated in believing that "Winters voted? When it became important to show circumstances coun- tervailing this, how was it done? by producing Mr. Winters, who swore that he had not been on the ground the whole day; that took, away the force of Mr. Ring- land's testimony, and showed that he was mistaken in his impression. The admissibility of this was so clear, that it was not objected to by the counsel for the respon- dent. But there .was a third species of evidence offered — evi- dence tending to show the probability that the parties alluded to actually voted. The assessor being called said, he assessed certain individuals, among others, John Rob- bins (the witness now offered to rebut), a jeweller, living in a part of the district designated by him ; the counsel, immediately after that, turned and said, Mr. Robbins' number was 957. Was not proof that Mr. Robbins was a duly-assessed inhabitant of Moyamensing, coupled with the name of the same person at 957, strong presumptive evidence to show that the John Robbins assessed was the John Robbins who voted at 957? suppose such a propo- sition submitted to a jury, to establish the fact, that John Robbins voted in Second ward, Moyamensing ; what better presumptive testimony could you produce, than to show the assessment of John Robbins in that ward, and the fact that a person of that name voted? Would it not even be conclusive evidence of that fact, unless rebutted by testi- mony tending to countervail it, or unless the return were so utterly without credit, as not to be worthy of consider- ation? I say, it would. If this testimony have such a tendency, is it not competent to contradict it? is it not competent to show that, although the court might infer. 420 Eeed v. Kneass. (Evidence— rebutting testimony.) from the fact that a person voted at 957, named John Robbins, and that a person of that name was actually assessed, that vote was not given, because the John Eob- bins assessed was not the person who voted? To my mind, it is perfectly clear, that inasmuch as the testimony offered to show that John Eobbins voted, was circumstan- tial, arising from the fact of there being such an assessed inhabitant of the ward, it is competent, by way of re- buttal, to show that the John Eobbins so assessed in the ward did not vote. It was said in the argument, that the assessor's list with the accompanying proof, was offered by the re- spondent for a different purpose ; to contradict the effect of the statement of Mr. Miller, who alleged, he was not familiar with any of the persons contained in the long list referred to him, as inhabitants of the ward. But the testimony had another tendency ; and no matter for what purpose testimony may be offered, if, in addition to its professed object, it have a tendency to establish something else, clearly affecting the case, the party on whom such testimony so bears, has a right to rebut that something; otherwise, I can imagine, that a man of talent, familiar with the conduct of a case, might introduce testimony for a collateral and secondary object, and yet, it might have the most direct and overwhelming influence upon the main question.- "Will the court, then, say, " we will not hear rebutting evidence, countervailing such testimony, because such countervailing testimony has not, necessarily, a ten- dency to rebut that for which the testimony in chief purported to be offered," although the court, at the same time, are conscious that it had another and more decided influence. To my mind, the proposition is clear, that the court should look to things, and not to words ; they should look to the actual effect of such testimony, and rebutting evidence to meet that effect should be admitted. Again, rebutting testimony is, after all, a thing de- pendent upon the sound discretion of the court, provided Reed v. Kneass. 421 (Evidence — rebutting testimony.) always, that the testimony is relevant ; and the courts of Pennsylvania have gone very far upon this subject. To this effect, we have the authority of Chief Justice Tilgh- man, in Eichardson v. Stewart, 4 Binn. 198, where he declares, that material testimony ought not to be rejected, merely because offered after the evidence is closed on both sides, unless it has been kept back by trick, or the adverse party would be deceived or injured by it. The same doctrine is asserted in Devall v. Burbridge, 6 W. & S. 529, where Judge Huston declares, that it requires a strong case, to authorize the absolute rejection of material testi- mony in any stage of the cause. Now, I myself, if I am justified in quoting my own experience, have admitted testimony after the case was closed; and for what? to advance justice and promote right; for those great pur- poses, the rule is, to receive material testimony offered at any stage, provided, the offer be made bond fide, under the stress of unforeseen circumstances, and unaccompanied by trick or fraud. One more remark is called for by the line of argument of the counsel for the respondent — it does not follow, be- cause testimony may be admitted in chief, it may not be admitted by way of rebuttal. The contrary is a matter of every-day practice ; any judge who has ever tried crimi- nal cases, to any extent, knows, that if a party be indicted, for instance, for assault and battery, and twenty witnesses be summoned to prove it, three of whom are examined, the court will say to the parties, "you can stop here;" and afterwards, if the prosecutor be found to be pressed by the defendant's testimony, his original testimony is then ad- mitted by way of rebuttal. I refer to these doctrines, generally, to show that the admissibility of rebutting tes- timony, is always founded upon the sound discretion of the court, exercised for the promotion and advancement of justice, but guarded in such a way as to prevent the sur- prise of the opposite party ; the court always giving an opportunity, as will be given in this case, Of responding to 422 Reed v. Knbass. (Evidence — rebutting testimony.) the testimony thus produced, if the party be, or appear to be, unfairly affected by it. The essential ground, however, on which I rest my opinion, is, that the evidence offered is essentially rebut- ting testimony, and that it tends to explain away cir- cumstances, which have been advanced on behalf of the respondent, in order to destroy or affect the testimony which has been produced by the contestant to sustain the allegations of his complaint. Objection overruled. Campbell, J., dissented. In Maryland, a judge of election, sued by a person whose vote he had refused to receive, having testified that he rejected the plaintiff's vote, because of his known disloyal sentiments, and that he was not governed by any bias or prejudice against the plaintiff; it was held, that to rebut this evidence, and show malice on the part of the defendant, it was com- petent for the plaintiff to prove, that the defendant, as register, had reg- istered a person who, at the time, declared the same disloyal sentiments, for the expression of which the defendant claimed to have rejected the plaintiff's vote. Elbin «. Wilson, 33 Md. Evidence in rebuttal should be contradictory of that produced by the defendant, but not inconsistent with the plaintiff's evidence in chief. Husted v. Gardener, 28 Leg. Int. 140. 423 People v. Cook. In the Court of Appeals of New York. MARCH TERM 1853. (Reported 8 New York 67.) \_Irregularities will not ■vitiate the poll.'] Where the pleadings raise a question of fraud in relation to the acts of a board of election officers, and the evidence goes only to show an irregularity, without fraudulent intent, the court is not bound to submit it to the jury as an open question. Fraud, when imputed to the acts of inspectors of election, implies an illegal and wrongful act, purposely committed. An irregularity in conducting an election, which does not deprive a legal voter of his vote, nor admit a disqualified person to vote, if it cast no un- certainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it, may be overlooked in a quo war- ranto. The county-board has no right to Veject a return, which is regular on its face, and delivered to the proper officer, within the time prescribed by law. The hour of closing the polls is directory, not imperative. Appeal from the Supreme Court, at a general term, in the sixth judicial district. This was an action in the nature of a quo warranto, at the relation of Benjamin Welch, Jr., to try the right of the defendant to the office of state treasurer, to which he had been returned, by the board of state canvassers, as duly elected, at the election held in E'overiiber 1851. The case was tried at Tompkins circuit in March 1852, when a verdict was rendered in favor of the plaintiffs, upon which judgment was entered, and this judgment was affirmed at the general term. The case in the supreme court is reported in 11 Barb. 259. J. C. Spencer, for the appellant. J. A. Collier, for the respondent. "WiLLARD, J., delivered the opinion of the court. This action was commenced by the attorney-general in January 424 People v. Cook, (Irregularities will not vitiate the poll.) 1852, under Tit. 13, ch. 2, § 432 of the Code of Procedure, The general object of the action was, to determine whether the defendant or Benjamin "Welch, Jr., was, by the greatest number of votes, elected treasurer of this state, at the general election in 1851. The cause was tried at the Tompkins circuit in March 1852, when a verdict was found for the plaintiifs, under the direction of the court, and the supreme court in the sixth district refused to set it aside on the bill of exceptions taken at the trial, gave judgment against the defendant, with costs, and ad- judged that Benjamin Welch, Jr., was entitled to the office. The defendant appealed from the said judgment to this court. The mode of testing the title of a party to an office, prior to the Code, was by information in the nature of a quo warranto. 2 Eev. St. 581. Although this partook of the nature of criminal proceedings, by reason of the judg- ment being, in some cases, followed by a fine (2 Eev. St. 585, § 48), yet, it was classed with civil remedies, in the third part of the revised statutes. The 428th section of the Code abolishes the writ of quo warranto, and proceed- ings by information in th^ nature of quo warranto, and enacts that the remedy theretofore obtainable in those forms, may be obtained by civil actions, under the provi- sions of that chapter. The present action was brought under those provisions, and is therefore a civil action ; the decisions of the court below are to be reviewed upon the principles applicable to civil actions, and not by those which prevail in criminal proceedings, when the latter differ from the former. The parties, in fact, stand in the same relation to each other as in other civil actions; each, on being defeated, is liable to the other, as well for the ordinary costs of the action, as for an extra allowance. Code, § 308, 309 ; People v. Clarke, 11 Barb. 337. This is so, whether the People or Benjamin Welch, Jr., be con- sidered as the real plaintiff. Code, § 319. The issue framed by the pleadings was intended to raise People v. Cook, 425 (Irregularities will not vitiate the poll. ) not merely the question, which party had obtained the cer- tificate of the state canvassers, about which, indeed, there was no dispute, but which party, Mr. Welch or Mr. Cook, was, in truth, elected to the office in controversy. ,The complaint, among other things, alleges "that Benjamin "Welch, Jr., of the county of Erie, is rightfully entitled to the said office of treasurer, and the said defendant has no right thereto ;" and it further alleges " that at the annual election in 1851, the said Benjamin Welch, Jr., was, by the greatest number of votes given at that election for the office of treasurer of the said state, duly elected to that office." The defendant, in his answer, after setting out his title to the office under the certificate of the state can- vassers, his giving the requisite security, and taking the prescribed oath, alleges on "his information and belief, that at the said general election, the greatest number of votes, duly given by the qualified electors who voted for any person for the office of treasurer, was given for the defendant for such treasurer." The reply impeaches the certificate of the state canvassers, for various irregularities; and especially, for the omission to canvass in favor of Mr. Welch the votes of the second election district of Chester- field, in the county of Essex, and the votes of the second election district of the 14th ward of the city of New York ; and sundry ballots for Benjamin C. Welch, Jr., and Ben- jamin Welch ; and it avers that the votes so given and intended for the said Benjamin Welch, Jr., and those not canvassed in his favor from Chesterfield and iN'ew York, were enough to elect him by the greatest number of votes to the office in question. The issues thus framed, as well as the mode pursued by the respective counsel, on the trial, show that the parties intended to litigate, and did in fact litigate, the question whether Benjamin Welch, Jr., received, at the general election in 1851, a greater number of votes for the office of state treasurer, than the defendant. It was not denied, that the state canvass afforded primd foAiie evidence that 426 People v. Cook. (Irregularities will not vitiate the poll.) each of the candidates received the number of votes allotted to him, and that their certificate was frimd facie evidence that the defendant received a majority of the votes. Like all other primd facie evidence, it was supposed to be open to contradiction. These preliminary remarks will prepare us to consider the various questions which have been urged on this appeal. As the most important questions arise upon the judge's final disposition of the cause, at the close of the trial, it is proper to ascertain the precise questions then determined. On the close of the proof, the counsel for the defendant claimed that there should be submitted to the jury, as ques- tions of fact: 1. "Whether there was any fraud as to the manner of closing' the polls, and in canvassing the votes, in the second district of the 14th ward of the city of New York? 2. "Whether the votes given for Benjamin C. "Welch, Jr., and Benjamin "Welch, were intended to be given for Benjamin "Welch, Jr. ? It was conceded, that all other questions were questions of law and not of fact. The judge declined to submit either of these propositions to the jury; holding that there was no evidence to sustain the allegation of fraud, and inasmuch as the evidence adduced to establish the intention of the electors, who voted the ballots having on them the name of Benjamin C. "Welch, Jr., and Benjamin "Welch, without the addition of junior, was all on one side, not attempted to be ex- plained or contradicted, and sufficient to establish, primd facie, the intention of those who deposited them, to vote for Benjamin "Welch, Jr., no question of fact was, therefore, left for the jury. The defendant's counsel excepted to this decision. The whole cause was then submitted to the judge, without argument, and he decided certain points, which will be noticed hereafter, to some of which the defendant's counsel excepted; and the jury rendered a verdict for the plaintiff, under the direction of the court, to which direction counsel also excepted. The decision of the learned judge on the two points People v. Cook. 427 (Irregularities will not vitiate the poll.) above mentioned, depends upon the same principles, and I shall, therefore, consider them together. The fact as- sumed by him, that there was no evidence of fraud, in the one case, and in the other, that the intention of the voters was prima facie established, was not denied by the counsel for the defendant ; it was not pretended, that the defendant had given any evidence contradicting that on the part of the plaintiff; nor did the counsel point out any distinct fact, as evidence of fraud, in the N'ew York case. (As to the effect of a fact assumed by the court, and not denied, see 19 Wend. 444.) The' objection, there- fore, comes down to a mere question of form, whether the judge is bound to submit to the jury, as an open question, to find fraud, without evidence, in the one case, or in the other, to find against a fact primd facie established, and which the other party has not attempted to controvert or explain ; or whether he may direct a verdict in conformity to such evidence. This presents a point of practice at nisi prius, which must be settled according to the usage in this state. This subject may be presented in three aspects : 1. As to the practice on a demurrer to evidence: 2. On a fail- ure of proof on the part of the plaintiff: and 3. On a fail- ure of proof on the part of the defendant. 1. On a demurrer to evidence, the party demurring must admit every fact which the jury might find from the testimony. The decision of the cause is thus wholly withdrawn from the jury to the court, and the former have nothing further to do than, in a proper case, to assess contingent damages. Gibson v. Hunter, 2 H. Bl. 187 ; 1 Dougl. 129, per BuUer, J.; 3 Johns. Gas. 10, 159 ; 2 Cowen 133,134; 1 Johns. 241; Lewis v. Few, 5 Johns. 1; People V. Roe, 1 Hill 470. In the present case, there was no demurrer to evidence, for the cause was, in truth, passed upon by the jury, who gave a verdict for the plain- tiff. 2. On a failure of proof on the part of the plaintiff, it 428 People v. Cook. (Irregularities will not vitiate the poll.) is well settled in this state, and has been for half a cen- tury, that the plaintiff' may be compelled to be nonsuited, against his consent. Clements v. Benjamin, 12 Johns. 299; Pratt v. Hull, 13 Ibid. 334. And it is laid down as a general rule, that if the evidence would not authorize the jury to find a verdict for the plaintiff", or, if the court would set it aside, if so found, as contrary to evidence, in such case, it is the duty of the court to nonsuit. Stu- art V. Simpson, 1 "Wend. 376 ; Demeyer v. Souzer, 6 Ibid. 436-8; Wilson v. Williams, 14 Ibid. 146; Fort v. Collins, 21 Ibid. 109; Jansen v. Acker, 23 Ibid. 480; Rudd v. Davis, 3 Hill 287 ; McMartin v. Taylor, 2 Barb. 856, 361. This rule was sanctioned by the unanimous opinion of the court of errors, in Rudd v. Davis, 7 Hill 529. The Eng- lish practice on this subject is different, as they never non- suit the plaintiff, against his consent. 2 T. R. 281 ; 1 B. & Aid. 252. Hence, with them, one of several defendants is never discharged, if there is the slightest evidence against him. There are dicta to the same effect, by judges in this state, when their attention has not been called to the difference between our practice and that of the English courts. See 4 N". Y. 548, per Mullett, J. The true rule is, that a defendant sued in tort with others is entitled to be discharged, if the evidence against him be such that, if he were sued alone, he would be entitled to a nonsuit. McMartin v. Taylor, 2 Barb. 356. The power to nonsuit results from the principle that the court is the judge of the law, when there is no dispute about facts, Pratt v. Hull, 13 Johns. 334, approved by Mullett, J., in Labar v. Koplin, 4 N". Y. 548. The practice in relation to nonsuits, or, in present phraseology, dismissing the complaint, is, that it may be granted at the close of the evidence on both sides, or at any other time, when the plaintiff admits he has no further evidence. 3. On a failure of proof on the part of the defendant. At the close of the cause, if aprimd/acie case be estab- lished on the part of the plaintiff", and it be undisputed by People v. Cook. 429 (Irregularities will not vitiate the poll.) the defendant, it has always been usual to direct a verdict for the plaintiff. See Nichols v. Goldsmith, 7 "Wend. 160 ; Crawford v. Wilson, 4 Barb. 504, 518; Rich v. Rich, 16 "Wend. 676. This rests upon the same principle as the power to nonsuit, that the court is the judge of the law, when there is no dispute about facts. Verdicts to an im- mense amount are daily taken under the direction of the presiding judge, in cases where the defence has wholly failed; the jury assent to the direction, by giving their verdict. The fact thus found is as conclusive upon the parties as if it had been the result of a long deliberation. ISTor is there anything in this practice, that impairs the rights of the jurors, or the efficiency of trial by jury; it does not conflict with the maxim, ad questionem facti non respondent judices, ad questionem juris non respondent Jura- tores. Co. Lit. 295 b. To bring a case in hostility to the maxim, it must be shown that a controverted question of fact was decided by the judge, without the intervention of the jury. Here was no fact in dispute, and the jury actually gave a verdict. In the case of People v. Croswell, 3 Johns. Cas. 337, the rights of jurors were most elaborately dis- cussed; in his 13th proposition (Ibid. 361), General Ha- milton remarks, "that in the general distribution of powers, in any system of jurisprudence, the cognisance of law belongs to the court, of fact to the jury ; that as often as they are not blended, the power of the court is absolute and exclusive ; that in civil cases, it is always so, and may rightfully be so exerted." And it was expressly asserted by Kent, J., in delivering his opinion in the same case (Ibid. 376); the opinion of the judges in criminal cases, he observes, " will generally receive its due weight and effect, and in civil cases it can, and always ought, to be ultimately enforced, by the power of setting aside the verdict." These principles were quoted with approbation by the supreme court, in Snyder v. Andrews, 6 Barb. 48, and have been approved in many other cases. The judge 430 People v. Cook. (Irregularities will not vitiate the poll.) did not, in the present case, decide the question of fact ; he withdrew nothing from' the jury ; his decision amounted only to a charge to find those issues for the plaintiff. The jury might have refused to do so, or have found the other way, without heing liable to punishment ; the only remedy for such a verdict would have been, to set it aside ; but the jury acquiesced in the direction, and found for the plain- tiff. The cases which show that it is not competent for the court to direct a verdict for the plaintiff, subject to the opinion of the court, against the consent of the par- ties, are not applicable to the question we are considering. Ely V. Adams, 19 Johns. 313 ; Hyde v. Stone, 9 Cow. 230. The principle decided in Nichols v. Goldsmith, 7 "Wend. 163, and Rudd v. Davis, 3 Hill 287, affirmed in error 7 Hill 529, Crawford v. "Wilson, and Rich v. Rich, supra, sustain the ruling of the court below. If the refusal of the learned judge to submit the fore- going questions to the jury, be deemed a refusal to permit the defendant's counsel to address the jury thereupon, it was not the subject of an exception. Whether counsel shall be permitted to address the jury, is a matter resting in the sound discretion of the court ; this has always been so treated. Under the former constitution, there was a time when all causes originating in justices' courts were required to be submitted in the supreme court, without an oral argument. The courts in this state have for a long time limited the number of counsel to address the jury, when a cause is to be summed up, and to examine and cross-exalmine witnesses. The convention of judges held in August last, under § 470 of the code of 1852, em- bracing the judges of the supreme court, superior court of New York, and court of common pleas of that city and county, by a general rule, restricted the number of counsel to be heard on each side, at general and special terms, to one, and the time beyond which they should not be heard, to two hours each. See Rules 13 and 14. A similar rule exists in the supreme court of the United States ; and this People v. Cook. 431 (Irregularities will not vitiate the poll.) court limits the number to be heard on a side. All these restrictions imply that the right to address the jury or the court, is not an absolute unqualified right, to be exercised by as many counsel as may be employed. The courts, on the same principle, limit the number of witnesses to be examined on a side, on all collateral issues ; Nolton V. Moses, 3 Barb. 36 ; Spear v. Myers, 6 Ibid. 445 ; and doubtless may do so on the main issue. On the same principle, too, it rests in the discretion of the court, whether a witness, once examined, may be recalled and examined further on the same or other subjects. Law v. Merrills, 6 Wend. 276, per "Walworth, Ch. ; People v. Mather, 4 Wend. 246 ; Cow. & Hill's Notes 711, 788 ; Duncklev. Kocker, 11 Barb. 387. If the judge, at the trial, err in the exercise of this discretion, the remedy is by motion for a new trial on a case ; it is well settled that a bill of exceptions can- not be taken, to review the exercise of discretionary power. Cow. & Hill's Notes 711, 788, where many of the cases are collected. In this aspect of the case, then, an appeal will not lie for the refusal of the judge to permit the counsel to address the jury on the questions now under discussion, there being no question of damages to be passed upon. In point of form, therefore, on the facts assumed by the learned judge, there was no error in directing a verdict for the plaintiff, instead of submitting the matter, as an oj)en question, to the jury. The manner of stating the question on the record is not according to the usual practice, but it is, nevertheless, intelligible. I have hitherto treated the case as if the facts in relation to those points were all on one side, as stated by the judge ; if so, there was no fact in dispute. Whether the judge was right in that assumption or not, could more properly be reviewed in the court below, on a case containing the whole evidence ; the exception does not point to the fact that the judge was wrong in his assumption of what was established by the evidence, but to the legal conclusion which he deduced from it. The learned judges in the I I 432 ' People v. Cook. (Irregularities will not vitiate tlie poll. ) court below have, moreover, discussed these questions of fact in an able and elaborate manner, and shown to my satisfaction, that the judge, at the trial, was right in his assumption; it would be a waste of time to travel over the same ground. It is well settled, also, that when, on the trial of a cause, a fact is assumed by the court and counsel to exist, and the case is disposed of, at the trial, upon such assumption, the non-existence of the fact, in the case presented to the court, on a motion for a new trial, cannot be urged in opposition to the application for a new trial. Beekman v. Bond, 19 "Wend. 444. This must be so likewise on a bill of exceptions, when the non-existence of the fact is not made a point in the court below. The range of the discussion, however, on this appeal,, has made it necessary, or at least expedient, that a few words should be added to this branch of the subject. 1. Of the question of fraud in the E'ew York case. Fraud can never, in judicial proceedings, be predicated of a mere emotion of the mind, disconnected from an act occa- sioning an injury to some one; a fraudulent transaction implies a wrong done, as well as a person wronged. The term " fraud," when applied to inspectors of an election, implies, ex vi termini, that some legal voter has been, de- signedly and wrongfully, deprived of his vote ; or that an illegal vote has been, purposely and unjustly, received by these officers ; or that a false estimate has been imposed upon the public as a genuine canvass. In the present case, however, the judge was asked to submit to the jury to find fraud in the inspectors of the second district of the Four- teenth ward in the city of New York, from certain actual or supposed irregularities, in a case where it appears from the record, that it was not shown or alleged on the trial, that any illegal votes were received, or legal votes rejected, and in face of the testimony of all the inspectors, embracing both political parties, and which was not contradicted, that the votes of the district were fairly and honestly received, and accurately canvassed and returned. "With respect People v. Cook. 433 (Irregularities will not vitiate tie poll.) to that return, the defendant is the assailant, and holds the affirmative ; it will be shown, in another connection, that it should have been received by the county-canvas- sers; the legal presumption is in its favor. It is no an- swer to this, that the irregularities of the inspectors have rendered it impossible to detect the fraud. The decision of the learned judge, with respect to these irregularities, belongs to another exception ; we are now upon the excep- tion to his decision, refusing to submit to the jury, to find fraud, without evidence, in closing the polls and can- vassing the votes in that district. This is quite a different matter from the question of irregularity, and must be kept distinct from it. The judge did not err in refusing the motion of the defendant's counsel in this respect. 2. On the refusal to submit to the jury whether the votes for Benjamin C. Welch, Jr., and Benjamin Welch, were intended for Benjamin Welch, Jr. What that deci- sion, in reality, was, and the grounds of it, have already been shown ; a few words more will be added. The court did not treat the question of the intention of the voters who deposited the defective ballots, as a question of law; it was treated throughout as a question of fact, to be estab- lished by the evidence. The ground taken by the judge was, that the intention of the voters to vote for Benjamin Welch, 3v.,yfa% primd facie established, and not attempted to be explained or contradicted, and there was, therefore, no question of fact for the jury ; his decision was a mere direction or charge to the jury to find for the plaintiff with respect to those matters, and they found accordingly ; the evidence was not withdrawn from them but, in truth, passed upon by them. It was not, indeed, submitted as an open, controverted question, or summed up by counsel ; but when that intention of the voter was placed beyond dispute, as it was in this case, by the evidence, it became a pure and unmixed question of law, whether those defec- tive ballots should, on this trial, be allowed to Benjamin Welch, Jr., or not. The result was the same as if the 28 434 People v. Cook. (Irregularities will not vitiate the poll.) judge had charged the jury that if they believed that the voters intended, by the defective ballots, to vote for Ben- jamin Welch, Jr., of which there was no doubt, those votes, in point of law, should be estimated by them to Mr. Welch. It was unnecessary to decide that those defective ballots should have been allowed and canvassed to Benjamin Welch, Jr., by the state-canvassers. The court did not say, as matter of law, irrespective of the extrinsic facts proved, that Benjamin 0. Welch, Jr., and Benjamin Welch, without the junior, meant Benjamin Welch, Jr. ; it was the extrinsic evidence that made the intention of the voters obvious. In my own opinion, the state-canvassers act ministeri- ally, in the main, in making their certificate ; they cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Benja- min 0. Welch, Jr., and Benjamin Welch, without the junior; they had not the means which the court possessed on the trial of this issue, of ascertaining, by evidence dehors the several county returns, the intention of the voters, and the identity of the candidate with the name on the defective ballots. The judicial power extends no further than to take notice of such matters of public no- toriety, as that certain well-known abbreviations are gen- erally used to designate particular names, and the like. It is enough, probably, to say that the legislature has not clothed, either the state officers, or the subordinate boards of inspection, with power to hear and determine, by means of evidence dehors the return, the intention of the voters. The strictness with which these boards should be held to the record before them, is dictated by sound policy and enlightened wisdom. Who would desire to see the close of every canvass followed by a rush of heated parti- sans, to disprove by their testimony the estimate made by the proper authority? But the question whether the state-canvassers ought People v. Cook. 435 ^Irregularities will not vitiate the poll.) to have allowed to Mr. Welch the defective ballots, is not, necessarily, involved in this case, if this court shall be of opinion, that on the trial of the cause, it was competent to go behind both the certificate and ballot-box, to ascer- tain the voter's intention in depositing the ballots in con- troversy. It has been strenuously insisted by the counsel for the appellant, that the court does not possess this power ; he insists that the court can go no further in this action than to correct mistakes of the returning, officers, and to prove facts which show the return to be false, and to make it such as it ought to have been made by the canvassers. Such errors, whether intentional or other- wise, no doubt, can be corrected by this action, and many of the cases referred to on the argument, did not require a more searching remedy. This question is of sufficient importance to be viewed upon principle and authority. 1. Upon principle. It is by the popular expression by the voters, through the ballot-box, that a title is derived to an elective office ; the certificate of the board of can- vassers is merely evidence of the person to whom a majority of the votes was given. The certificate may, indeed, be conclusive, in a controversy arising collaterally, or be- tween the person holding it and a stranger; but when this proceeding is instituted in the name of the people, it loses its conclusive character, and becomes only primd facie evidence of the right. The pleadings in this case, it has already been shown, were so framed as distinctly to present the question, whether the ballots now in contro- versy were intended by the voters for Benjamin Welch, Jr. ; if the issue thus tendered by the plaintiff was irrele- vant, the defendant should have moved to strike it out ; by taking issue upon it, and going down to trial and litigating the facts involved in it, he concedes its mate- riality. This concession, it is true, is not conclusive upon the court; but I think it was the intention of the Code, and certainly it was of the pleaders on both sides, that the issue should involve an inquiry into the right to the office 436 People v. Cook. (Irregularities will not vitiate the poll.) as derived from the highest source of popular sovereignty, and not merely the right derived from the certificate. It will he seen, that the pleadings in this case are essentially different from the precedents under the former practice in analogous proceedings. (See the forms in People v. Van Slyck, 4 Cow. 297.) 2. ITpon authority. In the case of People v. Ferguson, 8 Cow. 102, decided in 1827, a new trial was granted hy the supreme court, to enable the relator to prove on the trial of the issue, that votes given for H. F. Yates were intended by the voters for Henry F. Yates. That was an information in the nature of a quo warranto, to determine whether Ferguson or Yates was elected clerk of Montgomery county; if, on that trial, 14 ballots on which were written H. F. Yates were allowed to Henry F. Yates, he would be entitled to the office, instead of Ferguson, to whom the certificate was given by the can- vassers. That case is exactly in point, and goes further, indeed, than is necessary in the one under consideration. The late Chief Justice Savage, in the course of his opinion in that case, says, you may look beyond the ballot-boxes for testimony as to the intention of the voter, and the question of intention is fairly for the jury. This doctrine was approved by the same court, in People v. Seaman, 5 Denio 409, decided in 1848, in a similar pro- ceeding to test the title of the parties to the office of supervisor. In the earlier case of People v. "Van Slyck, 4 Cow. 297, an information in the nature of & quo warranto was brought to oust the defendant from the office of sheriff. It was insisted by the defendant's counsel, that the deci- sion of the canvassers was conclusive, and could not be reviewed except by -certiorari; and that their certificate could not be impeached in that way; but the court held, that the certificate was not conclusive; and on a special verdict, finding that the vote of one town had been improperly rejected by the county-board, which, if People v. Cook. 437 (Irregularities will not vitiate the poll.) received, would have altered the result, they ousted the defendant. This case shows that the court may go behind the certificate ; it shows also, that it is the election, and not the certificate of the canvassers, that gives the right to an office. In People v. Yail, 20 "Wend. 12, the case of People V. Ferguson is expressly recognised as sound law; and Bronson, J., says, that in those legislative bodies which have the power to judge of their own members, it is the settled practice, when the right of the sitting mem- ber is called in question, to look beyond the certificate of the returning officers ; " and I think," he observes, " a court and jury, with better means of arriving at the truth, may pursue the same course." "We are not called upon to say that every possible question arising under the election law, may be corrected in this way; it is enough, that the principle contained in People v. Ferguson sustains the rul- ing of the court below ; that case has stood the scrutiny of more than a quarter of a century ; and has neither been disturbed by the new constitution, nor the repeated revi- sion of the election law ; I see nothing in the present case that requires us to depart from it. STor is there any danger to be apprehended to the security of our institu- tions by pursuing this practice. The right to an office is no higher than the right to life, liberty or property ; there is no principle that should withdraw the former from the cognisance of a court and jury, to the exclusion of the latter; both will, indeed, be safe under the administration of the ordinary tribunals. It now remains to notice the other questions of law which are presented by the record, I. The learned judge decided, in his direction to the jury, that the votes given in the western district of the first ward of the city of Buffalo, were properly canvassed and allowed to Mr. Welch, notwithstanding the inspectors took the oath of office upon a book called " "Watts's Psalms and Hymns," and not upon the Gospels, notwithstandmg 438 People v. Cook. (Irregularities will not vitiate the poll.) the challenged voters, and two of the clerks were sworn upon the same book, it being beyond dispute that, in each case, the affiants supposed the book to be a Testament or Bible, and were ignorant of the fact that it was otherwise ; to this the defendant's counsel excepted. This exception is not well taken, for two reasons : 1. The neglect of the inspectors or clerks to take any oath, would not have vitiated, the election. It might have subjected those offi- cers to an indictment, if the neglect was wilful. Laws of 1842, p. 132, § 19, and 2 Eev. Stat. 696, § 38; Election of the Directors of the Mohawk and Hudson Eailroad, 19 "Wend. 135 ; Greenleaf v. Low, 4 Denio 168 ; "Weeks v. Ellis, 2 Barb. 320. These and numerous other cases show, that the acts of public officers, being in by color of an election or appointment, are valid, so far as the public is concerned. 2. The oath in this case, though irregularly administered, was a valid oath. If the party taking the oath make no objection to the mode of administering it at the time, he is deemed to have assented to the particular form adopted, and is as liable to all the consequences of perjury, as if it had been administered in strict conformity to the statute. Cow. & Hill's N"otes 705 ; Ibid. 1503 ; Cady V. Norton, 14 Pick. 236 ; Commonwealth v. Buzzell, 16 Ibid. 153. The challenged voters were as amenable to an indict- ment for perjury, as if they had been sworn on the Gospels. The learned judge, therefore, committed no error, in hold- ing that the votes in Buffalo above mentioned, were pro- perly canvassed and allowed to Mr. "Welch. n. The ballots for Benjamin "Welch, Jr., in the several election districts of Herkimer county, in which the spe- cimen ballot headed "State," had at the bottom, "for County Judge, Ezra Graves," were properly canvassed and allowed to Mr. "Welch. "WTiatever effect this might have upon the ballot for county judge, it had none upon other candidates upon the state ticket ; the statute forbids inserting upon the same ballot more than one name for the same office. Laws of 1842, p. 118, § 8. The judge People v. Cook. 439 (Irregularities will not vitiate the poll.) did not err, therefore, in holding that the Herkimer votes were rightfully allowed to Mr. "Welch, III. There was no good reason for rejecting the votes in the second election district of the town of Chesterfield. There was sufficient proof that the gentlemen acting as inspectors were such dejure; and if not, it will be shown under another head, that they were, at least, so de facto, and that that was sufficient to support their acts. The county-canvassers of the county of Essex had no right to reject the certificate of the board of inspectors; it was regular on its face and presented to them in time ; the statute has nowhere invested them with the power which they assumed to exercise. The 15th section, which authorizes the county-board to depute one of their num- ber to return the certificate of the district-inspectors to those officers, to supply omissions and correct clerical mistakes, if any exist, and to adjourn in the meantime to, allow the corrections to be made, is all the correcting or revising power which the county-board has over the dis- trict-board. The corrections in this case are to be made by the latter board, and they are not permitted to alter any decision before made by them. The learned judge was right, therefore, in holding that those votes should be allowed, notwithstanding they had been rejected by the county-canvassers, and were not included in the esti- mate of the state-canvassers. IV. The votes given in the second election district of the town of Williamsburgh, were canvassed by the county and state-canvassers, to Benjamin "Welch, Jr. The defend- ant in seeking to reject them, holds the affirmative ; he takes upon himself the burden of showing, either that the number of votes has been untruly canvassed, or that some other facts exist which invalidate the certificate. First. From the record it appears that no illegal votes were received in such district, at that election, and no legal votes were oflfered and rejected; that all the votes given at that election were honestly canvassed to the re- 440 People v. Cook. (Irregularities will not vitiate the poll.) spectiye candidates, and a true and faithful return of such votes was made by the inspectors ; there was no dispute about these facts, and the evidence was received without objection. The defendant, therefore, failed to show that he sustained injury by any act of the inspectors, or that their certificate did not truly state the result of the popular will at that poll. Secondly. The defendant, failing to show the return false, seeks to reject it altogether, on account of the non-compliance by the inspectors with some of the provisions of the election law. There are various duties enjoined by law on the inspectors, the great objects of which are : 1. To afi:brd to every citizen, hav- ing a constitutional right to vote, an opportunity to exer- cise that right : 2. To prevent every one deprived of that right from voting : 3. To conduct the election in such a manner, in point of form, that the true number of legal votes can be ascertained with certainty. If all these objects be accomplished, as they seem to have been in this case, to reject the whole poll because the inspectors failed to comply with every prescribed regulation, would be, as was well remarked by one of the judges in the court below, to place a higher value on the statute regulation, than on the right itself; it would be a sacrifice of substance to form. It is proper, however, to .examine these objections, and to see whether the irregularities complained of have rendered the state of the poll in that district so doubtful and un- certain that no reliance can be placed upon it. The first objection I shall consider, relates to the in- spectors of the election. It appears by the record, that the inspectors who opened the polls in the morning were not regularly sworn, and that they were appointed by the supervisors, town-clerk and a single justice, "inspectors of the election for the second district of the town of Wil- liamsburgh, to act until othera are appointed;" it was dated !N"ovember 4th, 1851. It appears that there were inspectors elected for this district, but they were not present at the opening of the polls. There can be no People v. Cook. 441 (Irregularities will not vitiate the poll.) doubt that this appointment was a colorable authority for those inspectors, and that their acts in that capacity were valid, so far as third persons are concerned ; their omission to take the oath in due form did not invalidate their acts.* The defendant's counsel does not deny that these inspectors were officers de facto; but he insists that their appointment made them inspectors for the entire election, and thus va- cated the office of the elected inspectors; and if so, the latter could not act at all, and were not even inspectors de facto. I thinkithis result would follow, if the inspectors in question had been legally appointed under the 22d sec- tion of the act. Laws of 1842, p. 117. But there was a defect in their appointment ; the statute contemplates that, at least, two of the justices should sign it, without which, in the country towns, there would not be a majority of the appointing power; in the absence of proof to the con- trary, we must intend that there were the usual number of justices in the town;f there not being the requisite number of officers concurring in the appointment, it was defective. There was still another defect; the statute contemplates that the inspectors should be appointed to supply the vacancy of those absent ; although it is silent as to the duration of their offices, yet, it is obviously for that election; in this case, they were appointed "to act until others were appointed." The town officers supposed that they had the right of making an appointment, dur- ing their pleasure ; I think they had no such power. The appointment merely gave them a colorable authority, and did not displace the elected inspectors ; the latter, on ap- pearing at the polls, had a right, as inspectors de jure, to take the charge of the election and to make the return. The statute requires that the inspectors, after taking the oath, shall appoint two clerks, who shall take the con- stitutional oath. Laws of 1842, p. 118, §§ 3, 4. This is * See McFarland «. Purviance, 1 Cong. Elect. Cas. 131 ; McFarland s. Culpepper, Ibid. 221 ; Draper v. Johnston, Ibid. 702. f But see Ex parte Cline, 1 Ben. 338. 442 People v. Cook. (Irregularities will not vitiate the poll.) directory; if no clerks can be procured, the election is not to fail; the inspectors must perform the duty which is ordinarily devolved upon the clerks. The failure of the clerks to take the oath did not render their acts void* The occasional interference of more inspectors than three, does not prejudice the return, since the whole election was conducted by inspectors who were, at least, such de facto, and for the most of the time, by those who were such dejure. It IS not to be disguised, that there were irregularities in this district for which the inspectors are censurable, and perhaps, liable to be punished by indictment. Had the defendant's counsel contended, on the trial, that these irregularities rendered the state of the canvass uncertain, he should have asked to go to the jury on the question, whether the votes were accurately canvassed or not. By omitting to do so, and by conceding that the questions were ones of law, and not of fact, and allowing it to be proved, without objection, that the votes were accu- rately canvassed, nothing was left but the abstract ques- tion, whether an omission to comply with the statutory requirements in question, per se, invalidated the votes of that district. If these requirements be directory and not jurisdictional, the learned judge was right in deciding that the votes were properly allowed. The cases on the subject of what provisions in the statute relative to elec- tions are directory, and what are jurisdictional or impera- tive, are elaborately collected and examined by the learned judges in the court below, and I do not deem it necessary to review them at large ; I will merely refer to some of them. Doughty v. Hope, 3 Denio 249 ; Elmendorf v. Mayor of Ifew York, 25 Wend. 696; Ex parte Heath, 3 Hill 43; Jackson v. Young, 5 Cow. 269 ; Stryker v. Kelly, 7 Hill 9; People V. Peck, 11 "Wend. 604; 19 Wend. 143. And see Smith on Statutes 782, 789, where the cases are reviewed. Upon the analogy of these and other cases, the require- ments of the statutes which were not complied with, are clearly directory. People v. Cook. 443 (Irregularities will not vitiate the poll. ) An officer de facto is one who comes into office by color of a legal appointment or election ; Ms acts in that capacity are as valid, so far as the public is concerned, as the acts of an officer de jure; his title cannot be in- quired into collaterally. The doctrine on this subject will be found in the following cases : People v. Bart- lett, Q Wend. 422; People v. White, 24 Wend. 525, 639, 564 ; People v. Covert, 1 Hill 674 ; People v. Stevens, 5 Hill 616; People v. Hopson, 1 Denio 575; Weeks v. Ellis, 2 Barb. 320; 3 Barn. & Aid. 266, 270. Third persons can justify under officers de facto. Weeks v. Ellis, 2 Barb. 320 ; 3 Barn. & Aid. 266 ; Wilcox v. Smith, 5 Wend. 231. Had the sheriff or constable arrested a disorderly .person, under authority from either of the boards of inspectors, who were merely such de facto, he would have been protected. The person of the voter is as securely guarded under the authority of inspectors de facto, as of inspectors de jure; a challenged voter, swearing falsely before a de facto board of inspectors, is as much liable to punishment, under the statute, as if the oath had been administered by inspectors dejure. Laws of 1842, p. 134, § 1 ; 2 Eev. St. 681 ; State V. Hascall, 6 N. H. 352; 2 Cow. & Hill 1101; Van Steen- bergh v. Eortz, 10 Johns. 167 ; Howard v. Sexton, 1 Denio 440. In the latter case, Bronson, J., says, "if parties should go to trial before a judge or justice of the peace, who had not taken the oath of office, I think, a witness who should swear falsely on such trial could not escape the pain of perjury." And it is laid down by Hawkins, 1 P. C, ch. 69, § 4, that a false oath, taken before commis- sioners, whose commission at the time is, in strictness, determined by the demise of the king, is perjury, if taken before such time as the commissioners had notice of such demise. Bac. Ab., tit. Perjury, A. Such officers, after the demise of the king, and before notice, are merely officers de facto. The learned judge did not decide that inspectors might lawfully omit, at their pleasure, any of the requirements 444 People v. Cook. (Irregularities will not vitiate the poll.) of the statute; he merely held, that the votes received in the said district, under the circumstances disclosed, were not to be rejected on the trial of this issue, but should be allowed to the respective candidates. The counsel for the defendant contends, that the failure of the inspectors to comply with any of the various provisions of the statute, is analogous to an erroneous decision of a judge at nisi prius, in receiving or rejecting evidence im- properly, but the cases are, in no respect, parallel. The error of the judge, in the latter case, has a direct tendency to injure the party against whom the decision is made; the error of the inspectors, in the former case, has no ten- dency to injure one candidate more than the other; indeed, it has no necessary tendency to injure anybody. It is the error, moreover, of the inspectors, and not of the court. V. The learned judge did not err in his direction to the jury, that the votes in the second district of the fourteenth ward of the city of New York, were improperly rejected by the county-canvassers. It has already been remarked, in considering the Chesterfield case, that the county-board has no right to reject a certificate of the district-in- spectors, which is fair on its face, and delivered to the proper officer within the time allowed by law ; the county- board should have received and returned these votes to the state-canvassers. This point, however, is not of much importance in this stage of the cause, since either party had a right to go behind the certificate, and show it to be false; had the county-board of New York conducted the canvass legally, the burden of proof would have been shifted from the plaintiff to the defendant. There are but two points in this part of the case which have not already been disposed of against the defendant, under some one of the preceding heads: 1. Closing the outer door at sundown, and preventing any person from entering the room where the poll of the election was held: 2. Eeceiving the votes of those already in the room, at the time the outer door was closed, ten or fifteen in all- People v. Cook. 445 (Irregularities will not vitiate the poll.) In considering these points, it must be borne in mind, that it is not enough for the defendant to show that the poll was kept open after sundown, or that the door was shut before that hour; such a technical deviation from the direction of the statute, cannot avail him, unless he can also show that the hour of opening and closing the poll is of the essence of an election. He did not propose to show that any legal voters were excluded by the act of closing the outer door, or illegal votes received after sundown ; he conceded that the questions arising upon those facts were questions of law for the court, and the learned judge made his decision, with the fact distinctly appearing, that no legal votes were rejected nor illegal ones received. It must be borne in mind, further, under this branch of the subject, that the constitution is imperative with respect to the day on which our annual elections shall be held. Art. in., sect. 9. Should the legislature direct it to be held on a different day, as they are empowered by that instrument to do, such day would be imperative also. The constitution is silent with respect to the hour of the day at which the poll shall be opened and closed; the regulation of that matter is thus left to the legislature, and when they do not interfere, to the common law. The statute requires that the poll shall be open, in the cities, at sunrise, and shall be kept open till the setting of the sun. Laws of 1842, p. 118, § 6. 1st. No elector had any right to complain, if the door was shut and the poll closed at sundown ; he was not deprived of any right ; the act of closing the outer door, at that time, cannot be urged as prejudicial, unless it be shown that some one was pre- vented from voting: 2d. The receiving of the votes of electors already in the room, has not been shown to be an error prejudicial to the defendant; whether these votes were for him or against him does not appear; if they were all against him, and were now rejected, it would not alter the result ; if they were in his favor, he has no right to complain. 19 Wend. 635, 638. 446 People v. Cook. (Irregularities will not vitiate the poll.) The statute contains no words forbidding the poll to be kept open after sundown, or rendering the election void, if the poll be not opened and closed as therein required. The inspectors may, indeed, be liable to an indictment for the wilful violation of any of the statute regulations, but that is quite" a different matter from the point we are con- sidering. If the particular hour of the day for opening and closing the poll be directory, and not imperative, the learned judge did not err in holding that the votes in the district in question should be allowed to Mr. "Welch. The cases on the subject of what acts are directory, and what imperative, have already been stated, and need not be re- peated. It has been held, with regard to corporations, that the words "between the hour of ten in the morning and two in the afternoon," are not imperative, but merely directory, and an election may well be begun at any other reasonable hour. Ang. & Ames, Corp. 94. The particular hour in the day is not of the essence of the thing required to be done; should inspectors, on a cloudy day, or misled by a defective timepiece, close the polls a few minutes before sundown, or receive a few votes after that hour, if the time of day be of the essence of the thing, the whole elec- tion for that district would be void. I cannot subscribe to this doctrine ; I think the statute is directory. Again, to show more clearly that the hour of closing the polls is directory and not imperative, suppose after every voter in the district had deposited his ballot, the inspectors should have closed the poll, although the sun was still an hour high ; or suppose they had kept it open an hour after sun- down, and no vote had been offered or received; who, in either case, would have had a right to complain? Not the candidates, surely; for, with respect to them, the whole object of opening the poll at all, had been accomplished. If the irregularity were wilful, the inspectors might, indeed, be punished by an indictment ; and this, I appre- hend, is the extent of the remedy. I do not intend to assert that there may not be depar- People v. Cook. 447 (Irregularities will not vitiate the poll. ) tures from the statutory requirement with respect to the time of opening and closing the polls, and with respect to some other matters, which would put in hazard the whole vote of the district ; it will be time enough to pass upon such a case when it arises. It is, probably, impracticable to prescribe a rule which will enable us to determine, in all cases, what irregularities of the inspectors will vitiate an election. It may be safely affirmed, that if the irregu- larity do not deprive a legal voter of his right, nor admit a disqualified person to vote ; if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it ; it may be overlooked, in an action of this kind, where the issue is, as to which candidate received the greater number of votes for a particular office, at a given election.* There is nothing in this principle which holds out the slightest invitation to disorder at the polls. Should a gang of rowdies gain possession of the ballot-box, during or after the close of an election, before the canvass, and destroy the whole or portions of the ballots, or introduce otLers surreptitiously into the box, so as to render it im- possible to ascertain the number of genuine ballots, the whole should be rejected. It would, in such case, be the duty of the district-inspectors to certify and declare the fact. But the county-canvassers, with a regular return from the district-inspectors before them, which is fair on its face, have no right to go behind it, and prove that its estimates are unreliable, by reason of rowdyism at the polls or irregularities of the inspectors. They must act upon it as a regular return, and leave tke parties aggrieved to their remedy through the courts of justice. The judgment of the supreme court should be affirmed. Judgment affirmed. TAaGART, J.., dissented. * See Philips -b. Wickham, 1 Paige 590. 448 People v. Cook. (Irregularities will not vitiate the poll.) That a mere iiTegularity on the part of the election officers, or their omission to observe some merely directory provision of the law, will not vitiate the poll, is a point sustained by the whole current of authorities; but there has existed a great conflict of opinion, as to what is an irregu- larity and what is matter of substance. Matters of substance, in the holding of an election, it would seem, may be resolved into such as affect the time and place of election, the due qualification of the officers by whom it is holden, and those affecting the legal qualifications of the electors ; but the conduct of the election officers in the performance of the duties enjoined by law, and their observance of the provisions of the statutes in regard to the recording and return of the legal votes received by them, would seem to fall within the description of directory pro- visions, and any departure on their part from a strict observance of such portions of the election law, to be regarded as irregularities which do not vitiate. See People v. Schemerhom, 19 Barb. 540. The general principle involved in this discussion, was well considered by Chief Justice Lowrie, in Commonwealth v. Meeser, 44 Penn. St. R. 343, where -the learned judge says, "no doubt, there are very many cases in which a strict adherence to the letter of the law would be de- structive of justice; and it is quite impossible for the law to define with precision all the customary rights of a people, or to express exactly the duties arising from the ever-changing forms of social transactions ; there is a very large field of social relations, wherein the law, whether statutory or customary, must ever remain somewhat indefinite, in order to be adapted to society. But is it so with our election law ? We think not ; all our electoral rights depend on written law, and it only can define them; it is true, that written law depends itself on ulterior principles of natural law; but these principles are subject to very great diversities of application, and lack entirely that definiteness which is an essential quality of law as a rule of common or social conduct. Law is intended to be a definition of those principles, in such form as to fit them for a ready and ordinary use, and to avoid the disputes that necessarily grow out of more general principles ; and nowhere is clear and precise definition more needed than in the laws that relate to the organization of society, and to the maintenance of its organic forms. Form is the sole purpose of them, and we must view them formally, and follow them strictly, else the whole society is very apt to be disturbed ; no latitude or looseness of administration of the law is tolerable, when it People v. Cook. 449 (Irregularities will not vitiate the poll. ) endangers the peace and order of society; it ought to be so steady, as not to be at all shaken by partisan excitements." And see Lancaster Election, 4 Votes of Assembly 127. The forms, however, which must be observed, in order to render the election valid, are those which affect the merits. Thus, it is said, in Juker V. Commonwealth, 20 Penn. St. R. 493, to be the general rule of elections, that mere irregularities, which do not tend to affect results, are not to defeat the will of the majority; the will of the majority is to be respected, even when irregularly expressed. The same idea is expressed in Carpenter's Case, 3 Pars. 540, where the court say, that although the election officers may be liable to punishment for a violation of the directory provisions of the statute, yet, "the people should not be punished for the defaults of their agents." In Thompson v. Ewing, 1 Brewst. 107, it was said by Judge Thompson, that while on the one hand, the whole conduct of election officers may (though actual fraud be not apparent) amount to such gross and culpable negligence, such a disregard of their official duties, as to render their doings unintelligible or unworthy of credence, and the results of their action unreliable for any purpose; on the other, the mere neglect to perform the directory requirements of the election laws, or the performance of their duties in a mistaken manner (where there is no reason to believe that the officers acted with bad faith, and no harm has accrued from the negligence or mistake), ought not to be allowed to defeat the expression of the will of the people of an entire district, against whose votes no objection can be made. And see Mann v. Cassidy, 1 Brewst. 60 ; Weaver v. Given, Ibid. 157. In Illinois, the rule is thus laid down by Breese, J. : "the rules prescribed by law for conducting an election, are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain, with certainty, the result ; such rules are directory merely, not jurisdictional or, imperative ; if an irregularity, of which complaint is made, be shown to have de- prived no legal voter of his right, nor admitted a disqualified person to vote, if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it, it may well be overlooked in a case of this kind, where the only question is, which vote was the greatest?" Piatt k People, 39 111. 72. The same general principle has been established in New Jersey ; Hardenburgh «. Farmers and Mechanics' Bank, 3 Green Ch. 68 : in Oregon ; Day «. Kent, 1 Oregon 29 450 ■ People v. Cook. (Irregularities -will not vitiate the poll.) 133 : in Minnesota ; Taylor v. Taylor, 10 Minn. 107 : in Iowa ; Dishon «. Smith, 10 Iowa 313: in Michigan; People v. Bates, 11 Mich. 363; in Texas; McKinney i). O'Connor, 36 Texas 5: in Kansas; Jones f. State, 1 Kansas 379: and in California; Gorham v. Campbell, 3 Cal. 135; Sprague v. Norway, 31 Cal. 173; Keller v. Chapman, 84 Cal. 636. Where, howerer, the election oflScers, though acting in good faith, adopted an erroneous rule as to the qualification of voters, which . being known as the decision of the board, prevented other voters, simi- larly situated, from tendering their votes, it was held, that this was an undue election. Scranton Borough Election, 1 Luzerne Leg. Obs. 13, Conyngham, J. (post 455). But see Gibbons v. Sheppard, 2 Brewst. 74. It is conceded, on all hands, that time and place are of the substance of every election. Dickey v. Hurlburt, 5 Cal. 843. (See Jacobs v. Hur- ray, 15 Cal. 331.) And it would seem, therefore, that due notice of the time and place of holding an election ought to be essential to its validity. Bang V. Lauck, 5 Cold. 588. On the 17th October 1700, the general assembly of Pennsylvania declared void the election of representatives from Newcastle county, for want of notice to the electors ; 1 Votes of Assembly 134: and on the 81st March 1789, the supreme executive council of Pennsylvania set aside the election of justices of Finley township, on the ground that notice of the time of holding the same was not given, according to law ; 16 Colonial Records 44. (And see Northampton Election, 4 Votes of Assembly 65^.) But this reasonable doctrine has not been sustained by the only judicial decisions to be found upon the subject. In Indiana, it was decided, that an election for county auditor was not void by reason of an omission to give public notice that it would take place ; State «. Jones, 19 Ind. 356 : and in New York, a vacancy in the ofSce of judge of the supreme court hav- ing occurred on the 33d October 1855, the court of appeals held, that it was competent for the electors of the district to elect a person to fill the vacancy, though no notice had been given by the secretary of state, pursuant to the statute. People ». Cowles, 13 N. Y. 350. And see People V. Brenham, 3 Cal. 477 ; People v. Hartwell, 13 Mich. 508. In regard to the place of holding an election, it was determined by the supreme court of California, that if the election officers open the polls and hold the election at a place not authorized by the board of supervisors, and at a distance from the place appointed by such board, without any excuse therefor, the poll must be rejected, as invalid. People v. Cook. 451 (Irregularities will not vitiate the poll.) Knowles v. Yeates, 31 Cal. 83. And the same point was determined in Pennsylvania, in Chadwick v. Melvin, ante 251. So, it was held in Tennessee, that a failure to open and hold an election in each one of the civil districts of a county, will vitiate the election. Marshall v. Kerns, 2 Swan 68. " Where the law has prescribed the time and place of elec- tion, and designated the officers who are to conduct it, a majority may not set up other officers, and hold a separate election ; for majorities as well as minorities are bound by law." Juker «. Commonwealth, 20 Penn. St. R. 493; and see Commonwealth v. County Commissioners, 5 Rawle 75. The rule is the same in New Jersey ; Miller v. English, 1 Zabr. 317. With respect to, time, it has been determined that, where the law re- quired the polls to be kept open until ten o'clock, and they were closed at eight, the election must be set aside. Penn District Election, 3 Pars. 536. So also, if they be opened at a much later hour than the time prescribed by law. Chadwick v. Melvin, ante 251. So, it was ruled, in Ohio, that if the polls were closed, for any purpose, between the hours fixed by law for holding the election, it would render it illegal and void. State V. Ritt, 16 Am. L. Reg. 88. But this was overruled in Fry «. Booth, where it was held, that the statutory provision that the polls should remain open during the entire day, between the hours specified, was to be regarded as directory merely ; and that the closing of them during the dinner-hour, did not vitiate the poll. 19 Ohio St. R. 35. Where the polls were kept open, after the proper hour, the election was set aside, on the ground that enough votes had been cast after the legal hour for closing the polls, to have changed the result. Locust Ward Election, 4 Penn. L. J. 341. In Illinois, however, under similar cir- cumstances, it was held, that it must be shown affirmatively, that votes ' were received after the proper hour which did change the result. Piatt n. People, 39 111. 54. In People v. Cook, it was decided that the liour of closing the polls, in New York, was directory, not imperative, and that a slight deviation therefrom would not vitiate the poll. (And see Rex V. Pole, 7 Mod. 194; Case of Adams, Cush. Elect. Gas. 391.) An election will not be set aside, because the polls were closed at the hour specified by the statute, though a number of qualified voters were thereby prevented from depositing their ballots. Clark's Case, 2 Pars. 535. An election must also be conducted by the proper officers ; an election held by mere intruders, without title or color of title, may be disre- 452 People v. Cook. (Irregularities will not vitiate the poll.) garded. Thompsons. E wing, I'Brewst. 99. But, as was ruled in People V. Cook, it is enough that the persons who conducted the election were officers de facto, it need not appear that they were such dejure. Thomp- son «. Ewing, 1 Brewst. 111-13 ; People v. Cook, 14 Barb. 259 ; McKin- ney v. O'Connor, 36 Texas 5 ; Sprague v. Norway, 31 Cal. 173 ; McCraw ®. Harralson, 4 Cold. 34. Where the state election law prohibits an election officer from being a candidate at the same election, though the fact that a candidate acted as an election officer will aroid the election as to him, it will not affect the other candidates. Boileau's Case, 3 Pars. 503 (ante 368) ; Wilcox v. Magruder, 7 West. L. J. 507. The absence of the judge during a portion of the day will not invalidate the return. Thompson v. Ewing, 1 Brewst. 99. And a statutory provision that the board of inspectors shall consist of three persons, is directory only ; an election held l^ two only is valid. State v. Stumpf, 21 Wis. 579. The mere misconduct of an election officer, which does not affect the result, will not vitiate the poll ; thus, where one of the clerks, from in- toxication, was unable to continue his labors, and another was called in to act in his place, who was not sworn, and continued to officiate until the regular clerk was able to resume his duties, the court refused to throw out the poll. Boileau's Case, 2 Pars. 503 (ante 368) ; Thompson v. Ewing, 1 Brewst. 108 ; Case of Chester, Cush. Elect. Cas. 664. Nor is it suffi- cient to invalidate the election of another officer, that the ignorance of the election officers compelled them to call in one who was a candidate at that election, to show them how to make out the returns. Thompson V. Ewing, 1 Brewst. 110. So, if the election officers be illiterate, and for that reason a person who is not a member of the election board, nor a clerk, take the ballots from the box and read them to the tellers, at the . invitation of the board, this is not such an irregularity as will vitiate the poll. Sprague ». Norway, 31 Cal. 173. And the mere position of the ballot-box, though irregular, will not annul the election. Augustin V. Eggleston, 13 La. An. 366. See the cases decided in congress in 1 Bright. Fed. Dig. 376. Perhaps, the most important question which has arisen under this head of the election law is, whether the omission of the election officers to require from unregistered voters, the preliminary proof required by law, is a mere irregularity, or a matter of substance which renders such votes absolutely illegal. It was held in Kneass's Case, 1 Pars. 553, that such votes yf ere prima facie illegal, but might be counted, on proof that the People v. Cook. 453 (Irregularities will not vitiate the poll.) parties so voting were actually duly qualified electors. And see Myers V. Moffet, 1 Brewst. 230. But this appears to be an erroneous view of the law ; if the election officers receive a vote without that preliminary proof which the law makes an essential prerequisite to its reception, such vote is as much an illegal one as if the voter had none of the qualifications required by law. The voter might not be able, on the election day, to produce the legal preliminary proof, and it would not appear to be just to the candidates to permit a vote to be made legal by evidence subsequently procured, which was absolutely illegal when received by the officers. It has been held in Wisconsin, that where there was no registry of the voters of a town, and none of the persons who voted therein, at the election, furnished the affidavit required by law to entitle the vote of an unregistered elector to be received, the whole vote of the tovni must be rejected. State v. Hilmantel, 21 Wis. 566 ; State v. Stumpf, 23 Wis. 630. This we deem the only just view to be tal^en of the election law, and the only one which will remedy the evil of constantly recurring contested elections. (See People v. Kopple- kom, 16 Mich. 342. ) The rule here indicated was enforced in Gibbons «. Sheppard, 2 Brewst. 129, where the court refused credit for every vote prima facie illegal, in which the testimony did not show that, at the time of voting, the offer was supported by the proof which the law demands. But the duties imposed on the election officers, on the receipt of a vote, whether from a registered or unregistered elector, are plainly directory, and the omission of them cannot, and ought not, to affect the validity of a vote which was legally given and received ; thus, the omission of the inspectors, as required by law, to call aloud the respective names of all the electors upon receiving their tickets ; the omission of the clerks to report the names of such electors, and to inscribe the letter V on the margin of the lists opposite the names of such electors ; and the omission of the inspectors, to note the fact of the production of certifi- cates of naturalization, are clearly mere irregularities which do not vitiate; Skerrett's Case, 2 Pars. 515-16 (ante 320); Kneass's Case, Ibid. 583 ; Thompson v. Ewing, 1 Brewst. 109. So is the omission of the in- spectors, in counting the votes, to take out the ballots deliberately from the boxes, and read aloud the name or names printed thereon ; Skerrett's Case, 2 Pars. 515 (ante 320) ; the omission to deposit the ballot-boxes with the nearest magistrate, within one day after the election ; Kneass's Case, 2 Pars. 559 (and see People «. Cicott, 16 Mich. 284) ; and the omis- 454 People v. Cook. (Irregularities will not vitiate the poll. ) sion to file the tally -papers within the time required by law ; Mann «. Cassidy, 1 Brewst. 31 ; Ewing v. Pilley, 43 Penn. St. R. 3S8 ; Howard V. Shields, 16 Ohio St. R. 191 (ante 378). It is not ground for setting aside an election, that some of the return judges refused to meet on the day prescribed by law, nor that those who did meet, met at an un- usual place, where it was shown that their duties were so interfered with by a disorderly crowd, that they could not be performed at the usual place. Hulseman v. Rems, 41 Penn. St. R. 396. And see Ex parte Heath, 3 Hill 42 ; McCraw v. Harralson, 4 Cold. 34. It is, of course, no valid objection to an election, that illegal votes were received, or legal votes rejected, if they did not change the ma- jority. Sudbury v. Strauss, 21 Pick. 148 ; Blandford «. Gibbs, 2 Cush. 39 ; Christ Church b. Pope, 8 Gray 140 ; Ex parte Murphy, 7 Cow. 153 ; State ». Lehre, 7 Rich. 234 ; McNeely v. Woodruff, 1 Green 352 ; Peo- ple «. Cicott, 16 Mich. 295 ; People «. Tuthill, 31 N. T. 550 ; Matter of Chenango Mutual Insurance Co., 19 Wend. 635. 455 SCEANTON BOKOUGH ELECTION. In the Quarter Sessions of Luzerne County, Pennsylvania. NOVEMBER SESSIONS 1860. (Eepoeted 1 Luzerne Legal 'Observer 12.) [^Powers of the. cowrte.J The court has power to set aside an election, as undue, if the election officers adopted an erroneous rule as to the qualifications of voters, which prevented certain legal voters from giving their votes, and heing made known as their decision, prevented other legal voters, similarly situated, from offering their votes ; especially, if it appear, that such votes, if offered and received, would have changed the result or have left it in doubt. The provisions of a borough charter requiring six months' residence and pajrment of a borough tax, as a qualification for a voter at an election for borough officers, do not apply to electors of township officers and officers of a similar character within the borough ; the qualifications of such elec- tors are governed by the constitution and general laws. If the election officers applied such special provisions to voters for town- • ship officers, &c., it is sufficient ground for setting aside the election. The courts havejio jurisdiction to try a contested election of officers to conduct an election. The right to a strictly charter-office can only be determined in a guo warranto. In case of a vacancy in a charter-office, it is to be filled by a new elec- tion, held under the act of 1834 ; otherwise, as to overseers and constables. CoNYNGHAM, P. J., delivered the opinion of the court. The evidence shows great irregularities in conducting the election in contest, the effect of which it is not necessary for us, in our view of the case, to consider; so far as the court, under the present complaint, can investigate the matter, it seems to be our duty, for other reasons, to set aside the election. In so doing, however, we are not called upon to attribute any fraud or intentional wrong to the officers forming the' election board, but simply an error of judgment; this, indeed, was the only course of argument adopted by the counsel for the contestants. If 456 SCBANTON BOKOUGH ELECTION. (Powers of the courts.) they were mistaken, though honest in their own opinions, in establishing a rule which prevented legal voters from voting, and which might, if the votes had been received, have varied the returns, the court . must now interfere. The acts of assembly give to this court a direct supervision over the conduct of the officers who conducted the elec- tion, as it operated upon voters, by giving jurisdiction over cases "of undue elections and false returns," when, in legal and statutory form, brought under our cognisance. Act 2d July 1839, § 151, Purd. Dig. 300. If it appear that an erroneous rule was adopted, which did improperly keep otherwise legal voters, tendering their votes, from voting, or which, when made known as the decision of the board, prevented other voters, similarly situated, from offering their votes, it would be an undue election ; more clearly, however, to be set aside by the court, if, under the evidence, it be rendered reasonably probable, that if such votes had been offered and received, the result of the election would have been different, or have been left in doubt. We now find, upon considering the evidence, that such an erroneous rule was adopted and promulgated, and that the reverse of the rule, or rather the true rule, if allowed, might have produced a different state of the polls. In this respect, then, the election was U7idv£,and the returns /afee, as an election of the citizens, though not intentionally so upon the part of the officers. The rule thus wrongfully adopted, was upon an alleged principle operating upon a large number of voters ; in such a ease, it cannot be con- sidered necessary to prove that each individual so affectea tendered his vote to the board and was refused, or how they would have voted, if admitted. If they were legal voters, they had the right, without the supervision of this court, or any other persons, to vote by ballot, and not to make their votes known to any one, unless they chose so to do. As a general rule, it affected a class, and it was not required that each one of that class should have his ScB ANTON Borough Election. 457 (Powers of the courts.) vote formally rejected; virtually, it was so, in all cases of the same kind, by the special decisions made.* A borough election is of a double character; at such an election the proper charter-officers are elected, and other officers of a more general nature, similar to the township officers found in other municipal divisions. This double election is sometimes held at two diffisrent times, when so required by the charter ; but more generally, it is believed, as in the present one at Scranton, at the same time, and under the controlling direction of the same per- sons. Both these elections, or the double election, are public, and voted at by residents of the borough ; but the charter-officers (otherwise the corporation officers) are to be elected by residents or corporators, who are qualified voters under the limitations of the charter ; while the other more public officers, similar to township officers, are to be voted for by residents and voters qualified under the several laws relating to elections. For the qualifications of the former, the charter is to be looked to, for those of the latter class, the constitution and general laws of the state. Even an alien inhabitant, under, some of the old charters, had the right to vote at a charter election, though he never could be a voter at the other election. Stewart v. Foster, 2 Binn. 120. (See also, as to the con- struction of the act relating to boroughs, the case of the Borough of West Philadelphia, 5 W. & 8. 281.) Borough elections, by the 14th and 15th sections of the * This so equitable a rule of election law, the court of common pleas of Philadelphia utterly ignored, on the trial of the contested elections of 1868 ; at that election, Mr. Justice Eead having published, on the eve of the election, an extra-judicial opinion, that all the naturalizations in the court of nisi prius were illegal, under the acts of congress, the republican election oflScers made it a pretext for rejecting the votes of aU naturalized citizens holding certificates of naturalization from that court, and the result was, that thousands of legal voters were disfranchised by this erro- neous rule adopted by the election officers, and the result was entirely changed. The illegality of this ruling was subsequently established by the decision of that very court ; and yet, they sustained their own party friends, who held the returns under it. 458 SCRANTON BOBOUSH ELECTION. (Powers of the courts.) act of 1851 (Purd. Dig. 119), are (unless otherwise ordered by the charter, which is not the case in Scranton) to be held at the time and place appointed by law for the elec- tion of inspectors, and in accordance with and subject to all the provisions of the law regulating township elections, so far as applicable; again, by the 3d section of the act of 1839 (Purd. Dig. 370), the time and place for electing in- spectors, is fixed at the time, &c., for electing constables, which is at the same time, &c., with other township officers. The time and place, then, of holding the Scranton election, was right, for the officers of both characters. How far are the laws regulating township elections further applicable to such a borough election? Just so far, in our opinion, as, by law, officers similar to township officers and known by name to be such, are to be elected. Township electors are to elect township officers, and the law directing such an election applies to them, and in the case of a borough, it applies to similar officers. Though the term " borough election" is used in the statute, yet, regarding it as of a double character, as we have heretofore explained, there is no difficulty in recognising the distinction we now take. Who then are township officers, within the meaning of the statute? They are named in the 117th and following sections of the act of 15th April 1834 (Purd. Dig. 962-6), together with, so far as Luzerne county is concerned, the act of 1842 (Pamph. Laws 47), allowing the election of overseers of the poor. Who are the similar officers of a borough ? They are found (called by the same names), in the borough act of 1851, § 14 (Purd. Dig. 119), to wit, assessors and assistants, auditors, constables and overseers of the poor ; the office of a supervisor is not known in a borough. We now, then, find certain officers both in townships and boroughs, bearing the same names, and fulfilling similar duties, and similar in all respects, whose elections are to be regulated by the same laws, and neces- sarily, therefore, subject to the same incidents. As to charter-officers, however, the case is difterent; there are ScRANTON Borough Election. 459 (Powers of the courts.) no similar officers in townships, and the election law is no further applicable to them, than as to time and place, and the official holding of the election. Neither are the in- spectors and judge of an election, township officers, nor subject to any incidents connected with their election, other than those applicable to borough charter-officers ; a township officer, as the law now stands, being a well-known and definite term, applicable to particular named officers and no others. See Leib v. Commonwealth, 9 Watts 219-20. The subject is somewhat confused, and to be understood only by comparing together the several acts of assembly ; while we do not profess to give in this opinion all our reasons for the conclusion at which we arrive, or, in detail, a comparison of the acts, we more briefly state the result which has been reached on consideration of the whole question. We think it simplifies the proceedings connected with this two-faced or double election, and se- cures to every one the rights .promised to him by the con- stitution and general laws of the state, in connection with all other citizens ; while at the same time it makes him subject to borough regulations and limitations, which he agreed to assume and submit to, by voluntarily becoming a corporator and citizen of a particular borough. It may be, perhaps, proper to assume, that the decision of the supreme court in Brunott v. McKee, 6 "W. & 8. 514, that a constable is not, for certain purposes, to be regarded as strictly a township officer alone, does not afiect the present argument. One general system of public elections is established by the act of 2d July 1839, modified in some few particulars by later statutes. It is enough for us now to say, that this act covers and controls, so far as material to any question here, all public officers, state, county and township; the general class of electors for all such officers is named, their qualifications being the same. The 63d section of the same act, adopting the words of the constitution, fixes the' qualifications of a voter, and refers, by express words, 460 ScRANTON Borough Election. (Powers of the courts.) "any election as aforesaid," to the previously-appointed elections for any and all such officers, including inspectors, &c., and township officers. The system is uniform, is based on the constitution, and no new act of the legislar ture can change such a provision, so as to affect the con- stitutional qualification, either by diminishing or adding to it any prerequisite. The right to enjoy and exercise the privilege of voting for public officers, upon certain stipulated terms, is secured to the people by the constitu- tion, and it cannot be supposed, that the legislature ever intended, if they could so legally have done, to make the qualification for voters, for similar public officers, different in different places. We cannot, then, come to any other conclusion, but that, as to inspectors, &c., and officers who, under the act of 1834 and its supplements, are called " township officers," and also are to be voted for by citi- zens of a borough, as public officers, under the same gene- ral regulations and authority, the true qualifications of a voter are the constitutional and statutory provisions of the act of 1839, before referred to ; and that the further pre- requisite of residence for six months, and payment of a borough tax, under the act of 1851, cannot be required in a voter, offering to vote for such officers. Such a limita- tion, however, is entirely proper and lawful, in deciding upon the qualification of a voter, offering to vote for charter or corporate officers of a borough. The qualification of electors for school directors, under the original act of 1st April 1834, P. L. 170 (and never since, in this particular, changed), evidently refers to the same prerequisites, as those of electors for constables and township officers. Such an election is regarded as a public election by the people throughout the state, voting in their several districts, for a common purpose and object, and therefore, to be governed by similar rules. Indeed, a borough may now, under certain circumstances, be con- nected with a township, as one school-district, and in such a case, it would be a strange anomaly, if, in voting for the ScRANTON Borough Election, 461 (Powers of the courts.) same candidates for the same, or but one office, there could be a diffisrent rule of qualification for the voters living within or without the bounds of the borough. This court has nothing to do with the election of " Trus- tees of Proprietors' School Fund;" their election cannot be tested in this mode, and we know nothing of the quali- fication of electors. We think, then, that under the 14th and 15th sections of the act of 1851, above cited, the provisions with regard to township elections, so far apply to those of similar officers under a borough, that as a necessary incident issu- ing therefrom, this court has a right to inquire as to the validity of the election of borough officers, similar to town- ship officers, as we have already referred to them. As, then, under the evidence in the case, it is clear, that the qualification of the prepayment of a borough tax was required from any admitted voters for such officers, others being rejected for want of this qualification, such rule being wrongly laid down by the board, there is reasonable probability that it may have afiected the result of the election ; and we feel called upon, therefore, to pronounce the election, for this reason, if for no other, an undue elec- tion ; and as to assessors and assistants, constable (hereto- fore disposed of), overseers of the poor and school directors, such election is set aside. We do not find that any jurisdiction is, by law, given to this court, to decide upon the elections of inspectors and judges. The 153d section of the act of 1839 (Purd. Dig. 392) gives jurisdiction to the court to hear and deter- mine, not all cases of contests of elections in townships, but only those in which the election of county or town- ship officers is contested. As clearly appears, from what we have heretofore stated, inspectors and judges are not such officers within the meaning of the statute, as the per- sons intended are specially named in the act of 1834, before cited. The election of inspectors is required to be at the same time and place with that of constables, but no pro- 462 ScRANTON Borough Election, (Powers of the courts.) vision is made for a contest. By the act of 21 st June 1839 (Purd. Dig. 589), elections of justices of the peace are directed to be held at the same time and place as elections for constables ; yet, here the legislature felt that, in order to give a court supervision over the election, it was neces- sary expressly to provide for a contest by the 3d section of the same act. So, with regard to school directors, though the election is held at the same time and place, special authority to contest the election was given by the 5th section of the act of 1849 (P. L. 442) ; and again re- peated, upon a change of the law, by the 6th section of the act of 1854.* Purd. Dig. 168. We consider, then, that we have nothing to do with the inspectors and judges returned as elected. It follows, too, from the conclusions we have heretofore reached and stated, that the mere charter-offi- cers, the burgess and council, are not within the scope of the present complaint in the quarter sessions ;f their right to hold office can only be investigated upon a quo warranto in the common pleas. It should be remembered, too, that the ground of objection to the election of officers, which is now sustained, would be, or rather is, no objection to the election of charter-officers. The question is raised before us, whether the whole of the 5th section of the act of 1834, relating to borough elections, published, as in force, in Purd. Dig. 118, is not, in fact, repealed by the B4th section of the act of 3d April 1851. The words of this section are, "that all general laws of the commonwealth, inconsistent herewith, are hereby repealed." The section thus claimed to be abro- gated is a very comprehensive one, and as to the greater part of its provisions, is certainly repealed by other acts, * Under this act, the court has jurisdiction on the petition of parties contesting the election of a school director ; but where there is an election to fill a supposed vacancy, it has no jurisdiction to decide upon the validity of such election. Collins's Case, 2 Grant 214. t The jurisdiction was extended to contested elections of borough and 'ft'ard officers, and of judges and inspectors of elections, in Northampton and Lehigh counties, by act of 9th March 1871. P. L. 201. ScBANTON Borough Election, 463 (Powers of the courts. ) inconsistent with it and changing it in such particulars ; still, we believe it is partially in force, and that, in case of a vacancy in charter-offices named in the section, a new election should be held under and in conformity with it. Our reasons for this conclusion are, briefly, that in case of any such vacancy, there is no other authority given in the act of 1851 or elsewhere, to supply it; the court certainly cannot do it, and the people, without this authority or some other more specially provided in the charter, will be equally without power. We do not con- sider it the fair intent and legitimate meaning of the 19th section of the act of 1851 (Purd. Dig. 119), that "officers are to serve until others are duly elected and qualified," that, in case of difficulty or fatal irregularity in an elec- tion, it contemplates the necessary continuance of the old charter-officers, for one whole year, or until the next an- nual election ; the true meaning would seem to be, that they should continue in office until an apparent vacancy be supplied ; looking for a speedy filling of that vacancy, as in other elective offices generally. If this be not cor- rect, then, if the officers of a charter-election, or the con- stable, whose duty it is to give notice of an election according to law, choose to misconduct themselves for the very purpose of keeping an existing council in office, there would be no way of preventing this result, for one year at any rate, and perhaps longer. It is contrary to the spirit of our institutions, that officers, elected for a limited time, should be enabled, by the misconduct, perhaps, of some of their own friends, to retain office for a double period, contrary to the clear and manifest will of the people; yet such may be the result, if there be no mode of filling a vacancy, either by appointment or new elec- tion. Other cases of difficulty may arise, where there is misconduct in no one, and yet a vacancy. Suppose the full number of councilmen are not elected, or, if elected, that one or more of them die, after the election and return^ but before being qualified, there will then be 464 SCBANTON BOKOUGH JiLECTIOK. (Powers of the courts.) a vacancy; what particular members of the old council will continue in office to supply the want? all have an equal right to claim it, and who will decide between them? The absolute necessity of providing for such cases, would induce us to hesitate in pronouncing this section of the act of 1834 entirely repealed, even if the alleged repeal- ing clause of the late act were more broad in its terms than it is shown to be ; on the other hand, when, as this repealing clause is really worded, we find nothing relating to this point in the new act, inconsistent with the provi- sions of the older one, but in entire harmony with it, from the fact that the new act provides for no such cases, why should we consider it repealed? The argument of the court, in their opinion in Street v. Commonwealth, 6 W. & S. 212, is referred to, though not analogous strictly in everything, except its general spirit. "We should not have deemed it necessary to give this opinion, in reference to vacancies in charter-offices, though we were earnestly asked by one of the counsel, in his ar- gument of this case, to do so, were it not that, so far as this same section applies to constables and overseers, we do think it is changed by the act of 1851; it became necessary, therefore, so far to qualify our opinion, as to show how far alone, we think it is repealed. The section of the act, heretofore cited, placing the election of the constables and overseers under the same rules as similar township officers, is inconsistent with the provision of the earlier borough act of 1834, if they refer to the same kind of constable. It may also be observed, that when this act of 1st April 1834, was passed, the bill, which subsequently, on the 15th April of the same year, became a law, abolishing the office of overseer in the townships, had been reported by the commissioners, printed, and its passage fully anticipated. It being thereby intended, afterwards, to dispense with the township office of overseer, it may have induced the legislature, as there were no supervisors in boroughs to take upon them their duties and the charge of the poor. ScRANTON Borough Election. 465 (Powers of the courts. ) to name overseers as borough officers, special in their character, and their vacancy to be supplied in the manner then provided. "When, however, the office was renewed in the townships, and the old general system of the con- trol of the poor and the pauper districts resumed, before the act of 1851, it seemed but reasonable to put similar officers upon the same footing, both in boroughs and town- ships, giving to the courts, in case of a vacancy, the inci- dental right, in both cases, of appointment. The constable named in the act of 1834, called in the 6th section "town constable," and in the 6th section, "high constable," seems to be a different officer from the one mentioned in the act of 1851, by name; the appoint- ment of high constable depends upon the provisions in the charter. The testimony of those who are not petitioners, is sufficient to establish the facts upon which this opinion is founded ; still, I am inclined to think, for the reasons given in Kneass's Case, 2 Pars. 590 (ante 373), and 1 Phila. 159, that their interest, if any, was so indirect, remote and un- certain, that it should go to credit rather than competency. The judgment of the court is, as follows : The evidence having established an undue election for the following named officers of the borough of Scranton, the election for' assessor and assistant-assessor is set aside, and the county commissioners will fill the vacancies ; the election of auditors and overseers of the poor is set aside, and the court will make appointments to fill the vacancies ; the election for school directors is set aside, and a new election ordered under the provisions of the sixth section of the act of 1834, of which the proper officer will give two weeks' notice, according to law; the complaint against the returned election of burgess, five councilmen, one judge and two inspectors of election, and three Trustees of Proprietors' School Fund, is dismissed, this court having no jurisdiction in the premises; costs to be paid, out of the borough treasury. 30 466 ScRANTON Borough Election, (Powers of the courts. ) The courts, in deciding cases of contested elections, act in a judicial capacity ; they are not like a board of canyassers, but their duties are to examine into the existence of such specified frauds and irregularities as -would nullify the result arrived at by the return judges. Kneass's Case, a Pars. 553. In Mann i). Cassidy, 1 Brewst. 35, Thompson, P. J., said, "the act of assembly which devolves on the court this most un- pleasant jurisdiction, in addition to the authority vested in it as a judi- cial tribunal, clothes it with powers which, by the same act, are con- ferred on committees of the legislature. These include the power ' to decide not only on the validity of the contested election,' but also 'which of the candidates had the greatest number of legal votes.' This grant of power was necessary, to enable the court to act in the premises, as, without it, it would be difficult, in a proceeding where the investigation is to be made upon the representation merely of twenty citizens, with a simple notice of the time of hearing to the persons re- turned (which notice may be entirely disregarded), to proceed, by the exercise of any of the well-defined powers of a court of law, to decide upon the rights of the several parties interested as candidates. In this proceeding, there is no provision for bringing any opposite party into court ; or, in case of neglect or refusal to appear, for taking a decree by default or confession. There is no answer required from any one to the petition presented ; nor any rule or regulation to produce an issue. The simple process is, the presentation of the petition, on which the court is required to fix a time of hearing, with ten days' notice thereof to the 'person returned.' As it would be inconsistent with the other duties of the court, to inquire into every vague allegation which might be made as to the fairness of an election, it was early seen, that the court must, of necessity, adopt some rules to regulate election cases, as they do other cases, and that to bring such cases, as far as possible, withili the ordinary rules of practice, would be most consistent with the duties required by law. Under these rules, the appearance of a party to oppose, constitutes him a litigant party; he is entitled to take every objection to the proceedings of the contestants, both as to matters of form and of substance. Which may secure to him a fair and legal hear- ing ; he has the right to require the court to decide, as a preliminary question, whether the petition filed presents such a case, as would, if established by evidence, aflfect his rights, and if it be found deficient in ScRANTON Borough Election. 467 (Powers of the courts.) substance, to order it to be quashed ; or, if defective in parts, to direct such parts to be stricken out." In the same case, the court ruled, that the powers conferred upon them, in contested elections, are to be exercised judicially ; and in such cases, proceedings are to be regulated, as far as practicable, by the estab- lished rules of judicial procedure. That the petition must set forth, plainly and distinctly, facts which, if sustained by proof, would render it the duty of the court, to entirely vacate the election, or to declare that another person, and not the person returned, was duly elected to the office in question. That the court would strike from the petition all irre- levant or general allegations, which could not affect the merits of the case or the general result. And that a petition to set aside an election might be amended, and especially, where leave to amend Was applied for, before any progress was made in the hearing of the cause. An amendment to the petition must be verified in the same manner as the original petition ; but it need not be sworn to by the same identical petitioners. Mann a. Cassidy, 1 Brewst. 11. It may be allowed to be filed nunc pro tunc. Gibbons ». Sheppard, 65 Penn. St. K. 35. But it must not introduce new matter. Thompson «. Ewing, 1 Brewst. 68, 97, 101. The court will not permit an amendment of the answer, during the pro- gress of the hearing. Mann ®. Cassidy (Report 386). Nor will they seal a bill of exceptions to a question of evidence. Ibid. 1 Brewst. 13 ; People V. Smith, 51 111. 177. On a contested election, the court has no power to inquire into the legality of a previous election for election officers. Mann v. Cassidy, 1 Brewst. 11 ; Commonwealth «. Smith, 45 Penn. St. R. 59. And a court of quarter sessions, in judging of the validity of a township election, has no power to order another. McDaniels' Case, 3 Pehn. L. J. 310. 468 ALLEJiTTOWN" ELECTION. In the Quarter Sessions of Lehigh County, Pennsylvania, JUNE SESSIONS 1871. (Kepoeted 28 Legal Intelligencer 229.) [^Acquisition of domicil.^ Eesidence, within the meaning of the constitution, as a legal qualifica- tion of an elector, is sjTionymous with domicil, and means the place of a person's permanent abode. A student at college, who has a domicil of origin, and resides at the in- stitution for the sole purpose of education, does not thereby acquire the right to vote in the district in which the college is located. The election ofBcers are not concluded by the oath of the person offer- ing to vote, as to the question of domicil ; they have a right to determine the point from all the facts and circumstances of the case. This was a proceeding to contest the election of George E. Roth and George Fry to the office of common council- men of the Second ward of the city of Allentown. The facts are fully stated in the opinion of the court. Wright, Harvey and Stiles, for the ijontestants. Wood and More, for the respondents. LoNGAKER, P. J., delivered the opinion of the court. The question involved is, whether or not certain students of Muhlenberg college, who voted in the Second ward of this city, at the October election, were qualified electors. Their qualification is denied, upon the allegation that they had not obtained a residence within that ward, as pre- scribed by the constitution of this commonwealth. The constitutional provision is as follows : " in elections by the citizens, every white freeman of the age of twenty-one years, having resided in the state one year, and in the election district where he ofiers to vote, ten days imme- Allentown Election. 469 (Acquisition of domicil.) diately preceding sucli election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the right of an elector:" "white freemen, between the ages of twenty- one and twenty-two, being citizens, and having a residence as aforesaid, shall be entitled to vote without the payment of taxes." "What, then, is residence within the constitu- tional meaning? is it synonymous with domicil, or is it used in a more restricted signification? The word residence occurs in several statutes, and has received judicial interpretation, but unfortunately, the constitutional signification of this word has never been judicially declared by the supreme court of this common- wealth. The statutory signification (in Commonwealth v. Grraham, 51 Penn. St. E. 258, a case arising under the statute of limitation barring a criminal prosecution) is said to be, " to dwell permanently for any length of time — to have a settled abode." In Commonwealth v. Jones, 12 Penn. St. R. 371, a proceeding by writ of quo warranto, alleging that the defendant, when he was elected mayor of the city of Philadelphia, was a non-resident, by reason of exercising the office of president of Q-irard college, and in the discharge of the duties thereof, residing at the col- lege, in the then county of Philadelphia, the office having been conferred by the city, it is said, by Chief Justice Gibson, " the doctrine seems to be, that if the office were irrevocably conferred for life, the law fixes the domicil at the place where the functions are to be performed, but that if it be temporary or revocable, the presumption is against a change." (Phillimore on Domicil 61-2.) "The residence of a federal officer in the District of Columbia was never thought to operate so as to forfeit his residence at his last domicil." 12 Penn. St. E. 371. In Q-uier v. O'Daniel, 1 Binn. 849 n., it is held, that a domicil may be defined, a residence at a particular place, accompanied with positive or presumptive proof of continuing it an un- 470 Allbntown Election. (Acquisition of domicil.) limited time, and is the conclusion of law, on an extended view of facts and circumstances. In the United States courts, the word residence has received frequent judicial construction. In Cooper v. Gal- braith, 3 Wash. C. 0. 546, it is held, that "residence and domicil are synonymous." In United States v. The Pene- lope, 2 Pet. Ad. 450, it is said, that "an inhabitant or resident is a person coming into a place with an intention to establish his domicil or permanent residence, and actu- ally executing that intention, by taking a house or lodg- ings, opening a store or the like." In White v. Brown, 1 Wall., Jr., 217, it is held, that "in order to acquire a domicil of choice, the fact of residence must be coupled with an intention to abide an indefinite time, or to make the place a home." An intention to remain permanently or for some indefi- nite time, is essential to make the place of a party's resi- dence his domicil. State v. Daniels, 44 N. H. 383. Ab- sence from one's domicil for a temporary purpose with an animus revertendi will not change a domicil. Risewick v. Davis, 19 Md. 82. A student at a college does not change his doriiicil by his occasional residence at the college. Grranby v. Amherst, 7 Mass. 1. The intention to abandon a domicil, and an actual residence at another place, if not accompanied with an intention of remaining there perma- nently, or at least for an indefinite time, will not produce a change of domicil. Jennison v. Hapgood, 10 Pick. 77. In Roosevelt v. Kellogg, 20 Johns. 208, where there was a plea of discharge under the insolvent act, it was held, that the words "resident and inhabitant were synonymous." 2 Kent's Com. 431, n. (citing also 8 Wend. 140; 4 Wend. 603), declares that the words " inhabitancy and residence mean a fixed and permanent abode, a dwelling-house for the time being, as contradistinguished from a mere temporary locality of existence." In Frost v. Brisbin, 19 Wend. 21, it is said, "to constitute residence within the legal mean- ing of the term, there must be a settled or fixed abode, an Allbntown Election. 471 (Acquisition of domicil.) intention to remain permanently, at least for a time, for business or other purposes." It will thus be seen that the authorities in this state, in the United States courts, and in the courts of our sister states, preponderate almost unanimously in favor of the construction, that residence is synonymous with domicil. It is true, that only one of the many authorities cited involved directly the residence of a student (Q-ranby v. Amherst, 7 Mass. 1); and that, not upon the privilege of voting, but upon the question of a pauper's settlement. Some of these cases involved the distribution of a dece- dent's estate, some the seizure of property under the at- tachment laws, others the right of discharge from arrest for the non-payment of debts, and one the privilege to hold and exercise the office of mayor of the city of Phila- delphia. Questions involving personal liberty, the right to office, and the seizure and distribution of property, are quite as important as, if not paramount to, the question which determines the residence of an elector. It is quite remarkable, that of all the adjudicated cases cited by the learned counsel on either side, but one has been found which involved the right of a student to vote, while residing in the district for the purpose of pursuing his studies, and that is the case of Putnam v, Johnson, 10 Mass. 488, decided in 1813. That case decides, "that Israel "W". Putnam, a student at the theological institution of Andover, being of age, and otherwise qualified accord- ing to the constitution, and being also emancipated from his father's family, is entitled to vote." An examination of this case shows that Putnam was twenty-five years old, that he graduated at Dartmouth College in 1809, that he then went to Salem and resided there as a student^at-law until April 1813, that while at Salem in 1810 and 1811, he was assessed, paid taxes and voted, that since his gra- duation he had supported himself, acquired property and was separated from his father's family, that in April 1813, he changed his intention, by abandoning the law and going 472 Allentown Election. (Acquisition of domicil.) to the Andover theological seminary to prepare himself for the ministry. This case was decided under the following clause in the constitution of Massachusetts : " To remove all doubt concerning the word inhabitant in this constitu- tion, every person shall be considered as an inhabitant, for the purpose of electing or being elected into any office or place within this state, in that town, district or plantation v}here he dwelleth or hath his home." Some time prior to 1844, the constitution of Massachusetts was amended, making the elector's qualification an act of residence, and in that year, upon an address from the house of represent- atives (5 Met. 689), inquiring as to the right of a person to vote who resided at a public institution for the sole purpose of obtaining an education, the justices of the supreme court said : " ' Inhabitant,' mentioned in the ori- ginal constitution, and, 'one who has resided in the dis- trict,' as expressed in the amendment, designate the same person, and both of these expressions, as used in the con- stitution and amendment, are equivalent to the familiar term domicil, and therefore the right of voting is confined to the place where he has his domicil, his home or place of abode." "His residence will not give him the right to vote at the college, if he has a domicil elsewhere." Chase V. Miller, 41 Penn. St. R. 420 (as a dictum), declares that " the primary signification of the word residence, as used in the constitution, is the same as domicil, a word which means the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights." A full review of these decisions leads to the conclusion, that the constitutional qualification of the elector, as regards his residence, means doiJnicil. This construction is highly favored by the context of the constitutional clause, wherein it prescribes not only residence, but assess- ment and the paymeift of taxes. As regards these latter qualifications, the constitution is to be primarily inter- preted in pari materid with the assessment and tax laws Allentown Election. 473 (Acquisition of domicil.) in force at the time of its adoption ; and secondly, pari passu with those now in force, because the constitution plainly permits the legislature to prescribe, at all times, the subjects and rates of taxation. Assessment, at the adoption of the constitution of 1838, and as the statutes now exist, requires the assessor to take an account of the names and surnames of all the taxable inhabitants within their respective wards, townships and districts, and of the real and personal estate of the taxables. The locality of personal property for taxation follows the domicil of the taxable. Domicil is defined to be a fixed dwelling, or a permanent abode, with a present intention to remain for an indefinite period of time, and is usually the place where a person is engaged in some business, profession or occupation, from the pursuit of which is ordinarily derived the means of support for himself, and where he exercises his civil and political rights. Civil and political rights, on the one hand, confer the privilege of voting, and on the other, impose the obligation of paying taxes, and enjoin the per- formance of municipal duties. By a residence in a par- ticular district, so as to acquire a domicil therein, every taxable citizen becomes liable to assessment and taxation, liable to assume the offices of constable or assessor, to serve as a juror, and formerly to be enrolled amongst and to be mustered with the militia ; in short, he assumes and becomes liable to perform all the municipal duties which commonly devolve upon the inhabitants of that district. The mere act, therefore, of residing in a place for a specific purpose and for a definite time, with no permanent intention of remaining, of making it the seat of property and of incurring a full and unequivocal assump- tion of municipal duties, does not constitute a residence, within the constitutional meaning of that word. The words "having resided in the state one year, and in the election district ten days immediately preceding the elec- 474 Allentown Election. (Acquisition of domicil.) tion," as found in the constitution, therefore, are to be held as synonymous with having a domicil therein. "Which one of those students who have exercised the privilege of voting, can say, or does say in his testimony, that he came to the Muhlenberg college with the intention of making it his permanent home, his domicil ? or that he is here even with a present intention of becoming a resi- dent of this city, so as to be subject to taxation by making it the seat of all his personal property, and of taking upon himself a full liability to perform all the municipal duties which devolve upon the permanent residents or inhabi- tants of this city ? "Which one was assessed by the assessor, when the permanent citizens were assessed? When did it ever occur to the assessor, while making the usual spring assessments, or to the students themselves, that they were residents of this city, so as to be liable in their persons and personal estates, to assessment and taxation for state, county, school and city purposes? Who, among them, is here with a present intention to assume the: office of constable or assessor, to act as a juror, or to make this city the seat of his property? These and the like inquiries are very pertinent, because the rule of law has been, re- peatedly, if not universally, declared to be, that a person's domicil is to be determined by his residence at a particular place with positive or presumptive proof of continuing it an unlimited time, and is the conclusion of law on an exr tended view of facts and circumstances. G-uier v. O'Dan- iel, 1 Binn. 352 n. ; United States v. The Penelope, 2 Pet. Ad. 450; 19 Wend. 11; Moore v. Darrall, 4 Hagg. Eccl. 346; Code Civil, Art. 103;' Tanner v. King, 11 La. 175; 5 Met. 587; Somerville v. Somerville, 5 Vesey, Jr. 750; Casey's Case, 1 Ash. 126. The determination of a voter's residence, is therefore a question of fact, and in most cases, one of easy solution. Where the voter is a married man and has been residing in the district ten days or more before the election, with his family, following some profession or occupation, with a Allentown Election. 475 (Acquisition of domicil.) present intention to make it his home and to remain for an indefinite time, he will have acquired a residence within the meaning of the constitution. Unmarried men who have fully severed the parental relation and who have en- tered the world to labor for themselves, usually acquire a residence in the district where they are employed, if the election officers be satisfied they are honestly there pur- suing their employment, with no fixed residence elsewhere, and that they have not come into the district as "colo- nizers," that is, for the mere purpose of voting, and going elsewhere as soon as the election has been held. The too frequent practice of importing voters into a district where population is centralized, ten days or more before the election, apparently to meet this requirement of the con- stitution, for the sole purpose of controlling the election of that district, is a fraud^ upon its citizens, and when- ever the election officers are clearly satisfied that such is the intention of the elector, it becomes their plain duty and right to reject his vote. The mere fact, therefore, that the elector is willing to swear, and does swear, that he considers the district his home, is not sufficient to entitle him to vote, if the facts and circumstances satisfy the election officers that his permanent home or domicil is elsewhere. A person can have but one 'domicil, but he may have a residence for a specific time and purpose apart from his domicil. Very few, if any, students while residing at the college, acquire a new home or change of domicil, and they are, therefore, not entitled to vote. In the early history of our colleges, while the true meaning of the state constitution was fresh in the minds of the framers of that instrument, it was never pretended, that the student acquired a resi- dence at the college so as to become a qualified elector, to be liable to taxation and to the performance of municipal duties. In those days, when the purity and freedom of elections prevailed, the parental home or the locality from whence the student came, was universally accepted as the 476 Allentown Election. (Acquisition of domicil.) district in which he was entitled to vote. In the common- wealth of Massachusetts, where some of the earliest col- leges were founded, in the case of Putnam v. Johnson, 10 Mass. 495, which was decided in 1813, it is said, "that under-graduates of an university never yet had claimed a right to vote for senators, in the town where the univer- sity is situated." Such, I apprehend, was the prevailing opinion of the citizens, as well as of the students, up to a recent period, in this state. To determine the right of a student to vote, it is said in 5 Met. 589, that "where a student has his domicil of origin at a place other than the town where the institution of learning is situated, and he goes there for the sole pur- pose of obtaining an education, it would not, of itself, give him the right to vote, because it would not neces- sarily change his domicil, but in such case his right to vote in that place would depend upon all the circumstances connected with such residence. If he has a father living, if he still remains a member of his father's family, if he returns to pass his vacations; if he is maintained and supported by his father; these are all circumstances re- pelling the presumption of. a change of domicil ; so, if he has no father living, if he has a mother or other connec- tions with whom he has before been accustonied to reside, and to whose family he returns in vacations, if he de- scribes himself of such place, and otherwise manifests his intent to continue his domicil there, these are all cir- cumstances tending to prove his domicil unchanged." A careful examination of the testimony leads to the conclusion that none of these students, whose votes are contested, were qualified electors at the last October elec- tion. The names of all appear upon the extra-assessment, while most of them were residing at the college when the annual assessment was taken, and none of them swear that they came here with any other intention than of obtaining a collegiate education, and of going elsewhere after their graduation ; all are registered in the matriculation book Allentown Election. 477 (Acquisition of domicil.) as belonging to the homes from whence they came ; some are under the pupilage of their parents, receiving all their support from them, and in no sense whatever are they emancipated from the parental domicil; whilst others, partly support themselves, and go elsewhere or usually to their homes during the vacations, but they are here with no intent to remain ah indefinite time or to acquire a new domicil. Students being here for the sole purpose of being educated, and not coming animo manendi, but in- tending to go elsewhere as soon as graduation takes place, do not fall within the same category wi^h unmarried men who seek employment from .point to point, as opportunity oft'ers. The student is in a preparatory condition, in a state of tutelage, and non-productive, not yet able or willing to enter the world to engage in business, or in the productive pursuits of life, nor fully prepared to assume civil and political rights and duties. The unmarried man who has severed the parental relation, becomes a laborer, producing for himself, and thus adds to the productive wealth of the community in which he resides, being will- ing not only to enjoy political privileges, but also to assume and to discharge political and civil duties. This ruling imposes no greater hardship upon the stu- dent than is visited upon many others engaged in the vari- ous pursuits of life at points away from their domicils. In Chase v. Miller (ante 234), it is said, that four of the supreme judges, found themselves holding a term of court at Pittsburgh during each presidential election, and although they were there more than ten days before the holding of the election, it could not be pretended that that place could become their residence so as to entitle them to vote. Again, it is known as part of our history, that members of the cabinet, senators and members of congress, heads of departments and clerks, who reside at "Washington almost the entire year (and many of them with their families), and are there for an indefinite term of years, return at each annual election to their native 478 Allentown Election. (Acquisition of domicil. ) states, and at their proper domicils exercise the privilege of electors. The student does not become disfranchised, but like all others who are engaged in temporary pursuits away from home, he is compelled to go to his proper domicil to exercise the right of suffrage. By the official returns the votes stand as follows: George B. Roth 223, George Fry 218, William Kichline 224, John lifonnemacher 208, George T. Young 192, Eli J. Saeger 211. Of the votes now rejected twelve were cast for deoTge B. Roth, George Fry and "William Kichline, and three for John Nonnemacher, George T. Young and Eli J. Saeger; deducting the twelve and three from the candidates respectively, the vote will stand thus: George B. Roth 211, George Fry 206, William Kichline 212, John l^onnemacher 205, George T. Young 189, Eli J. Saeger 208. Eli J. Saeger is thus elected over George Fry, to whom a certificate of election has been issued by the judges of the election. And now, to wit, 5th June 1871, it is ordered, consid- ered, adjudged and decreed that a certificate of election be forthwith issued by the clerk of the court of quarter sessions to Eli J. Saeger, as a member of the common coun- cil in and for the city of Allentown, and that the certificate heretofore issued by the election officers to George Fry, be and the same is hereby declared to be null and void. In Pennsylvania, it is provided by statute, that if an elector claim to have resided within the state for one year or more, his own oath shall be sufficient proof thereof. Purd. Dig. 376. But under this law, it was ruled by the court of common pleas of Philadelphia, on the 3d No- vember 1848, that although the election officers are concluded by the answers of the person offering to vote, yet, they have the clear right to obtain, from him full answers on the question of his residence, and if the result of those answers proves that he has not a legal domicil within the district, they may reject his vote. Domicil of choice is a conclusion of law from the fact of a man fixing Allentown Election. 479 (Acquisition of domicil. ) voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. Haldane V. Eckford, L. R., 8 Eq. 681 ; Case «. Clarke, 5 Mason 70. It is a settled principle of law, that no man shall be without a domicil ; and to secure this end the law attributes to every individual, as soon as he is bom, the domicil of his father, if legitimate, or of his mother, if illegitimate ;' domicil of choice is the creation of the party,' when acquired, the domicil of origin is in abeyance, but not absolutely extinguished ; for, so soon as a domicil of choice is abandoned, the domicil of origin re- vives, without any special intention on the part of the individual ; thus, if, after having acquired a domicil of choice, a man abandon it and travel in search of another domicil of choice, the domicil of origin comes instantly into action, and continues until a second domicil has been acquired. Udny v. TJdny, L. R., 1 H. L. Sc. 441 ; s. c. 4 Am. L. Rev. 678; Story's Conflict of Laws, § 48. And see Rabaud v. D'Wolf, 1 Paine 587-8. Ex parte Wiggin, 1 Bank. Reg. 90. The principle of this case has recently been affirmed in Michigan, under the following state of facts : in the early part of the civil war, Frank Hodges, a resident of the town of Vergennes, enlisted in the federal army, and having been disabled by the loss of an arm, was appointed to a clerkship in the interior department at "Washington ; in October 1870, he returned to Vergennes, for the purpose of being regis- tered as an elector, but was denied the privilege of registry, on the ground of non-residence. In a suit for damages against the registering officers, in the circuit court of Kent county, at Grand Rapids, it was held by Hoyt, J., that Hodges had not lost his domicil at Vergennes, and that he was entitled to vote in that town. Ledger, 31st July 1871. And see Maddox v. State, 33 Ind. Ill, where a similar question was deter- mined in Indiana. 480 People v. Holden. In the Supreme Court of California. APRIL TERM 1865. (Eeportbd 28 California 123.) [^Purging the polls.^ The statutory remedy given to contest an election, does not oust tlie jurisdiction on information in the nature of a giw warranto. The list of ballots, returned with the poll-list and tally-paper, is bet- ter evidence of the number of votes cast, and for whom, than the tally-list made from them by the election officers. If an elector vote twice at the same election, his second vote must be excluded in the count. An elector can only vote at his place of domicil ; the thirty days' resi- dence required, is to be computed by excluding the day of election. A ballot which contains the name of the person voted for, and the office, two or more times, is to be counted as one vote ; it is not looked upon as two or more tickets folded together. An elector may acquire a new domicil, so as to entitle him to vote, while in the military service of the United States, by an actual intention to make such place his future residence. Appeal from tlie District Court, seventh judicial dis- trict, Mendocino county. The relator and the defendant were candidates for the office of county judge, at the judi- cial election held in the autumn of 1863. The defendant was declared duly elected by the board of canvassers, and was commissioned by the governor ; whereupon the attor- ney-general filed this information in the nature of a quo warranto, charging the defendant with having intruded into, usurped and unlawfully exercised the said office. During the progress of the cause, certain stipulations, in relation to the taking of testimony, were entered into be- tween the counsel for the relator and defendant, which are noticed in the opinion. The court below gave judg- ment for the relator, from which the defendant appealed. Bennett, and Cook ^ Clarke, for the appellant. Cadwalader, for the appellee. People v. Holdbn. 481 (Purging the polls.) Sanderson, C. J., delivered the opinion of the court. It is first claimed by the appellant, that the district court had no jurisdiction in the premises, and that the only remedy, in cases like the present, is, under the statute which prescribes the mode and manner of contesting elec- tions. "Wood's Dig. 380, § 51. l^o proposition could be more untenable. It is true, that the act providing the mode of contesting elections, confers upon any elector of the proper county, the right to contest, at his option, the election of any person who has been declared duly elected to a public office, to be exercised in and for such county ; but this grant of power to the elector, can in no way impair the right of the people, in their sovereign capacity, to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom, if it be made to appear that he is a usurper, having no legal right thereto. The two reinedies are distinct, the one belonging to the elector in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty. Title to office comes from the will of the people, as expressed through the ballot-box, and they have a prerogative right to enforce their will, when it has been so expressed, by excluding usurpers and putting in power such as have been chosen by themselves; to that end, they have au- thorized an action to be brought in the name of the attor- ney-general, either upon his own suggestion or upon the complaint of a private party, against any person who usurps, intrudes into or unlawfully holds or exercises any public office, civil or military, or any franchise within this state. It matters not, upon what number of indi- vidual persons a right, analogous in its results when exer- cised, may have been bestowed, for the power in question, none the less, remains in the people in their sovereign capacity; it has been shared with the elector, but not parted with altogether. Substantially the same point 31 482 People v. Holden. (Purging the polls.) was made in the case of People v. Jones, 20 Cal. 50, with- out success. It is next claimed, that it is nowhere shown by the record, that all the election returns of the various precincts were given in evidence, and hence, it is argued, that neither the court below nor this court can determine which candi- date received the most votes. It may be true, as claimed, that the record does not state, in so many words, that all the returns were given in evidence, yet it is apparent, from a comparison of the allegations of the complaint (not con- troverted), as to the number of votes cast, with the number as shown by the returns contained in the record, that such was the case ; a formal statement that they were all intro- duced, is not indispensable ; if it appear, in any manner, that such was the fact, it is sufficient ; and we are satisfied, from an examination of the record, that all the returns were before the court. Thus, it is stated in the complaint, that according to the count of the board of canvassers, the relator received 488 votes and the defendant 530, which is not denied in the answer ; it is also stated in the com- plaint, and not denied in the answer, that the returns from Noyo precinct, which show upon their face, 48 votes for the relator and 10 for the defendant, were rejected by the board of ca.nvassers ; these votes being added to the esti- mate of the board, make the entire vote of the county stand, for the relator 536 and for the defendant 540; which is the exact vote as shown by the returns contained in the record. It is manifest, therefore, that all the returns were given in evidence, and that they are now before us. Upon the face of the returns, as already stated, the de- fendant received 540 and the relator 536 votes, giving a majority of four to the defendant. Upon the trial, the court found that the defendant received 535 votes and no more, and the relator 537, which was, subsequently, at the hearing of the motion for a new trial, reduced to 536, giving the relator one majority. It is alleged on the part People v. Holden. 483 (Purging the polls.) of the appellant, that the court erred in thus deducting from Holden's vote. Two of these five votes, so taken from Holden by the court, were deducted from the returns from Sanel precinct, which shows 31 votes for Holden. The ballots at that precinct were introduced in evidence (having, been ob- tained from the clerk's office, where they are required to be kept, at least six months, by the clerk ; Stat. 1868, p. 354, § 35), from which it appeared, that 31 democratic tickets were polled at that precinct ; Holden's name was upon all of these tickets, except two, from which, as appears on inspection, his name had been torn off. Whe- ther his name was torn off from these ballots, before they were cast by the electors, or afterwards, does not appear ; upon that question no evidence was offered by either side, and no explanation attempted; thus, the question as to the number of votes received by Holden, at the precinct in question, had to be determined upon the evidence afforded by the certified returns on the one hand, and the ballots on the other. The court below held that the ballots were the most reliable evidence, and we are of opinion, that its conclusion was not erroneous.* Prior to 1863, there was no rule of law requiring the preservation of ballots cast at an election, for any purpose ; on the contrary, the inspector of elections was required to destroy them, after the count and completion of the re- turns. Wood's Dig. p. 378, § 35. But in 1863, the law was amended, so as to require the inspector to string the ballots on a cord or thread, and return them with the poll-list and tally-paper to the county-clerk, to be kept by him for at least six months. Stat. 1863, p. 354, § 35. And * Here was a question of presumption against presumption; a pre- sumption that the official returns were correct, on the one hand, and a presumption that the ballots had not been tampered with, on the other ; by whatever technical reasoning, the court may sustain Its position, no sane man, acquainted with "the ways that are dark, and the tricks that are vain," of professional politicians, will hesitate at coming to an opposite conclusion. Mr. Holden was, evidently, counted out. 484 People v. Holdbn. (Purging the polls. ) it was further enacted, that any person might appear before the board of canvassers, on the day appointed for opening the returns, and demand a recount of the ballots, if he had any reason to believe that they had not been correctly counted by the officers of the election. The legislature could have had no other design in thus providing for the preservation of the ballots, than to make them evidence of their own contents, and a test of the correctness of the returns made up from them by the officers of the election. They are, in fact, made a part of the returns, for, it is ex- pressly provided, that they shall be sealed up with the poll-list and tally-paper, with the certificates of the officers attached, and endorsed "election returns." Thus, they are recognised by the law, not only as a part of the elec- tion returns, and therefore, evidence of what transpired at the election, but as evidence of a higher and more satis- factory grade than the tally -paper. Intrinsically considered, it must be conceded by all, that the ballots themselves are more reliable, and there- fore, better evidence than a mere summary made from them ; into the latter, errors may find their way, but with the former, this cannot happen. The relation between the two is, at least, that 'of primary and secondary evidence. This'we do not understand the learned counsel as contro- ■ verting, but he insists, that the use of the ballots as evi- dence is limited to a test of the correctness of the tally- paper, on the day appointed for the board of canvassers to open the returns, and that, on that day, they become and thereafter remain /wnc^ws officio. That such was the intent of the legislature, we cannot admit ; in no event, can the board of canvassers postpone the opening of the returns, beyond the second Monday after the election. Stat. 1861, p. 529, § 38. If, at that time, it was intended that the ballots should become functus officio, and thereafter cease to be a part of the official returns of the election, why pro- vide that they should be preserved and kept by the clerk for at least six months? Why not direct that they should People v. Holden. 485 (Purging the polls. ) be destroyed by the board of canvassers, as was done by the inspector, under the law as it stood prior to the amend- ment of 1863 ? In the same section requiring the ballots to be preserved, we find also a provision requiring the in- spector to retain and preserve, for at least six months, a poll-list and tally-paper with the certificates of the officers attached. This provision was part of the law, prior to the amendment of 1863, requiring the ballots to be preserved, and could have had no other object than to guard against the loss or fraudulent interference with those sent to the clerk's office, and to furnish additional evidence of what transpired at the election. It is, therefore, manifest, that the amendment of 1863, requiring the preservation of the ballots, had a like object, and was enacted for the purpose of further assurance. Being, as we hold, competent, it is clear, that the ballots are primary evidence, and therefore, better evidence of the number of votes cast, and for whom, than the tally- list made from them by the officers of the election. We must presume, that the officers of the election honestly performed their duty in the premises ; that they did not mutilate any of the ballots, but on the contrary, strung them, in the condition in which they were found in the ballot-box, on a thread, and sent them, in that condition, to the clerk's office ; the same presumption exists in rela- tion to their custody by the clerk. In other words, in the absence of any evidence showing that the ballots in ques- tion were mutilated subsequently to their being deposited in the ballot-box, we are bound to presume, that they were in the same condition, when produced on the trial, from the proper office and by the proper officer, in which they were when deposited in the ballot-box; any subse- quent alteration or mutilation, by any one entrusted by law with their custody, would be a public crime of great enormity (Wood's Dig. 385, § 105); and the commission of a crime cannot be presumed ; United States v. Amedy, 11 Wheat. 408. If they were mutilated while in the clerk's 486 People v. Holden. (Purging the polls.) office, it was the duty of the defendant to make proof of that fact; not having been in the custody of the relator, but in that of the proper public functionary, he was not called upon to explain when and how the name of the defendant was torn off. The presumption, as we have already seen, was, that his name was torn off by the voters themselves; upon this presumption the relator could rely, and the labor of overthrowing it rested upon the defendant, who made no effort in that direction. There is no force in the argument that the ballots are liable to become mutilated, and ought, therefore, to be considered of less weight, as evidence, than the tally-list. The officers are required to string them on a cord or thread, and seal them up in a package, and deliver or cause them to be delivered to the county-clerk, whose duty it is, to safely keep them for at least six months; and the presumption is, that he has done so. It is next claimed, that the court below erred in deduct- ing from Holden's tally, the vote of J. M. N'eil, cast in Calpella precinct. The court found that !N"eil voted twice for Holden, and it is sufficient to say, that, in our judg- ment, the finding is fully sustained by the evidence ; ac- cording to the poll-list, the fourth vote cast, at Calpella precinct, was cast by J. M. I^eil, and the 92d and last vote was also cast by J. M. Neil; that these two votes were cast by the same person, and not by two persons of the same name, there can be no doubt ; Neil himself testified that, to the best of his recollection, he voted in the after- noon, near sundown, for the defendant, Holden ; it further appears, from his own testimony and that of Mr. Cooley, one of the judges of the election, that on the evening of the election, he asked to have his name erased, claiming that he was intoxicated, and did not know, at the time, that he had voted before ; there was also evidence to show, that there was no other person of that name, in that pre- cinct, and none to the contrary. The first vote was legal, People v. Holden. 487 (Purging the polls. ) the second was not, and the court did not err in exclud- ing it. We are also of opinion, that the finding of the court as to the evidence of W. R. Robinson, who voted for Holden, at Calpella precinct, was correct. He left Men- docino county with his family, in April 1863, and went to Sonoma county, with the declaration, in effect, that he was going there to reside ; and from that time until and on the day of election, his family continued, to reside in the latter county. The most that can be said on the side of the defendant, is, that the evidence as to Robinson's residence was conflicting; such being the case, this court will not disturb the finding ; the fact of residence being found against him, Robinson's vote was properly rejected. Nor did the court err in rejecting the vote of John Car- roll, cast at Gualalla precinct. He came to the county on the 22d of September, and the election was held on the 21st of October following. In order to make thirty days, it would be necessary to count both of those days and the whole of each. The language of the constitution and of the statute is, that the voter must have resided in the county, thirty days next preceding the election ; in our judgment, this language means, that he must have resided in the county, thirty days next preceding the election ; but conceding that it means, next preceding the event of the election, such event cannot be said to have transpired until sundown on the day of the election, and a residence of thirty days, in Carroll's case, would not, therefore, have been complete, until after the polls were closed. "We are satisfied that the foregoing five votes, claimed by the defendant, were properly rejected by the court, and that the finding, that he received only 535 legal votes, was correct. "We now come to such of the votes, which were claimed, and counted by the court, for the relator, as are claimed, by the defendant, to have been illegal. It is first claimed, that two votes at Sanel precinct were improperly counted for the relator, by the court. It ap- 488 People v. Holdbn. (Purging the polls.) pears from the record, that two ballots or pieces of paper,- with the name of the relator, and the names of the other candidates of his party, 'printed thereon three times, were found in the ballot-box, and rejected by the officers of the election; at the triaf, the court counted each of these bal^ lots as one vote for the relator. It is claimed, that these pieces of paper were each three tickets folded together, within the meaning of the 34th section of the act relating to elections ("Wood's Dig. 378), which provides, that where two tickets are found folded together, they shall both be rejected. In our judgment, this point is not well taken. The 24th section defines a ballot to be, " a paper ticket, containing the names of the persons for whom the elector intends to vote, and designating the office to which each person so named is intended by him to be chosen." Thus, a ballot or a ticket, is a single piece of paper, containing the names of the candidates and the offices for which they are running ; if the elector were to write the names of the candidates upon his ticket, twice or three or more times, he does not make it more than one ticket ; so long as there is but a single piece of paper, there can be but one ticket, and if it can be discovered therefrom, who are voted for, and the offices for which each was intended to be chosen, it must be counted as one ballot, notwithstand- ing the voter may have, through inadvertence or other- wise, repeated the names and offices ; being but. one piece of paper, it can be but one ticket, and can only be counted as one vote. Gushing, in his work on the Law and Prac- tice of Legislative Assemblies, p. 40, § 106, observes, " if a ballot happens to have the same name written or printed on it more than once, it is not therefore to be rejected, be- cause, as it is but one piece of paper, it cannot be counted as more than one vote, and though the name is written on it several times, it is yet but one name ; thus, where bal- lots are prepared for distribution, in the usual way prac- tised in some of the states, that is, by the name of the candidate being written or printed several times on the People v. Holden. 489 (Purging the polls.) same slip of paper, for the purpose of being cut into sepa- rate ballots, and being nearly cut apart, but so as to adhere at one end, and an elector inadvertently put two votes, not entirely separated, into the box, they will be counted as one ballot, unless there are circumstances present, which afford a presumption of fraudulent intent, in which case, they must either be rejected or the whole ballot set aside."* Nor did the court err, in allowing to the relator the votes of Melindy, "Whipple and McGrew ; the objection taken by the defendant to their votes, is not well founded. They were not disqualified by reason of section 4 of article II. of the constitution ; that section does not add to nor take from the" conditions upon which the fact of residence is made to depend ; it merely declares, that " no person shall be deemed to have gained or lost a residence, by reason of his presence or absence while employed in the service of the United States,". which means simply that, in determining the fact of residence, presence or absence in the service of the United States shall not be taken into account, or, in other words, neither presence nor absence in the service of the United States is a condition upon which the fact of residence can be affirmed or denied. Hence, the mere fact that Melindy came to Mendocino county in the capacity of physician, McG-rew in the capacity of supervisor, and Whipple in the capacity of laborer to the Indian reservation, did not deprive the first of his former residence in Siskiyow, nor the second of his former resi- dence in Sutter, nor the last of his former residence in , Contra Costa ; nor did it preclude them from acquiring a residence in Mendocino, if disposed to do so. That it was their intention to acquire a residence in Mendocino county, sufficiently appears from the evidence ; such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law), which stands in the way of their doing so. * See Cambridge Election, Cush. Elect. Cas. 3; Case of Hnpkinton, Ibid. 26. 490 People v. Holden. (Purging the polls.) The claim that the court allowed to the relator two votes folded together, and found in the ballot-hox at Eound Valley precinct, is not sustained. "Whether the two ballots in question were folded together or not, was a question of fact for the court below to find, and the court found that the evidence failed to prove it. The affidavit of Eberlee (who was inspector at that place), on the mo- tion for a new trialj fully explains the alleged irregu- larity, and shows that, in fact, the two ballots were not folded together; upon comparing the number of ballots with the poll-list, it appears, that there were no more ballots cast, than there were persons who voted, thereby showing that, in all probability, the two ballots in ques- tion were not cast by the same person. So far as the vote of John Ward, at Calpella precinct, is concerned, the counsel for defendant is mistaken in sup- posing it was counted by the court for the relator. The court, in effect, found as a fact, that "Ward did not vote for the relator, but for the defendant ; and we think, the finding is sustained by the evidence. If Ward was a minor, and he voted for the defendant, another vote ought to have been taken from him ; the court, however, so far as we are able to discover, allowed Ward's vote to stand ; of this action, at leaat, the defendant ought not to complain. In regard to the points made by counsel for the defend- ant, upon the stipulations of the 23d June and 7th July, it is sufficient to say, that in the progress of the case there- after, until the actual taking of the evidence to which they respectively relate, both parties seem to have virtu- ally disregarded them. Thus, on the 8th July, the next day after the last stipulation was made, the defendant served notice of a motion to file an amended answer, to be heard on the 18th of the same month ; the motion was allowed, and the amended answer filed on that day ; on the next day, the 19th, the plaintiff filed an amended complaint, and on the same day, the court made an order. People v. Holden. 491 (Purging the polls.) on motion of the defendant, directing that the amended answer be considered as the answer to the amended com- plaint ; on the 9th July, the next day after the notice of the defendant to the effect that he desired to amend his answer, the plaintiff obtained an order from the judge of the court, allowing further time to take testimony, which vra& served on the opposite party. "What effect the amend- ments to the pleadings may have had upon the issues, as they stood at the time these stipulations were made, we are unable to determine, for the original pleadings are not in the record. It may be, that the relator could have gone safely to trial, upon the issues as they then stood, upon the evidence already taken, at the time the stipulation was made, but could not, if those issues were to be changed. Moreover, it is very doubtful, whether these stipula- tions were ever binding upon the people, who were the real plaintiffs in the case; they were not made by the attorney-general, by whom the suit was instituted, but only by the private counsel of the relator. Theoretically, the people alone are interested in the determination of the controversy involved in this case, and no court would be justified in enforcing, as against them, a stipulation made by the relator or his counsel, to their prejudice. The action is, in no legal sense, under the control of the relator; it was brought in the name of the people, and to enforce their will as expressed through the ballot-box, and not merely to redress the wrongs or enforce the rights of the relator. Searcy v. Grow, 15 Cal. 117. It is very evident, that the case could not have been fairly tried or its merits reached upon the evidence taken prior to the 7th July, for the evidence then in only dis- closed about one-third of the official vote of the county, and it would have been impossible to determine, upon the real merits of the case, whether the defendant or the re- lator had been elected. Under all the circumstances, we think the court might in its discretion, allow the addi- tional evidence to come in. Then the only question re- 492 People v. Holden. (Purging the polls.) maining- would be, whether the defendant was surprised ; if so, he would have been entitled to a postponement of the trial, in order to procure further evidence on his side, if there was any within his reach. But although he knew that the evidence had been taken by the referee, and would be reported to the court, and might be received, yet, when it was received, he did not claim that he was thereby sur- prised, and therefore, not ready to proceed with the trial; on the contrary, he was silent, and with full knowledge of all the facts, took the chances of a finding in his favor. It will not do to say, as he now does, that he did not ask for an adjournment, because he was precluded from so doing by the stipulation in question ; the stipulation hav- ing been disregarded by the other side and by the court., was no longer obligatory upon him ; this must have been known both to him and his counsel. The record in this case contains nearly 300 printed pages ; it is manifest, that the whole case could have been fully and fairly presented in a record containing, at the outside, not more than fifty pages ; for this, we are satis- fied, that the respondent was, in a great measure, responsi- ble ; he must, therefore, be taxed with half the costs of making up and printing the transcript. Judgment affirmed. Shafter, J., dissented. In purging the polls of illegal votes, the rule is, that unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election division, not from the majority candidate. Sheppard v. Gibbons, 3 Brewst. 138 ; McDaniels' Case, 3 Penn. L. J. 310; Cush. Elect. Cas. 583. (But see ante 311.) Votes received from electors, whose names do not appear on the assessment list, without the preliminary proof required by law, were formerly held to be prima facie illegal, and to be rejected from the count, unless adequate proof were made on the trial, of the legality of each such vote. Mann v. Cassidy, 1 Brewst. 3; Weaver v. Given, Ibid. 141. But the modern and better LiTTLEFIELD V. GeEEN. 493 (Rejection of polls.) opinion seems to be, that such votes, being illegal when received, can- not be made legal by the production of evidence of qualification, on the trial, which ought to have been, but was not, produced to the election oflBlcers. Sheppard v. Gibbons, 2 Brewst. 139 ; Myers ». Moflfet, 1 Brewst. 230. Though the vote of an idiot ought not to be received, yet the vote of a man, otherwise qualified, who is neither a lunatic nor an idiot, but whose faculties are merely greatly enfeebled by old age, is not to be rejected. Sinks V. Reese, 19 Ohio St. R. 307. LiTTLEFIELD V. GbEEN. In the Circuit Court of Cass County, Illinois. MAT TEEM 1869. (Reported 1 Chicago Legal News 330.) \^Bejection of polls.'] Where the provisions of the election law have been entirely disregarded by the officers, and their conduct has been such as to render their returns utterly unworthy of credit, the entire poU will be rejected. But, even in such case, legal votes proved to have been actually polled, must be computed. The facts of this case are fully stated in the opinion of the court, which was delivered hy Smith, J. On the 9th of April 1867, an election was had, for and against the removal of the county-seat of Cass county, from Beardstown to Virginia in said county. The election was authorized hy an act of the legislature passed in that year ; the act provides that any citizen of said county, who may legally vote at said election, may contest its legality, by giving a notice in writing of his intention so to do, to any other citizen of said county, who may legally vote at said election in opposition to the 494 LiTTLEFIELD V. GkEEN. (Rejection of polls.) vote cast by the person contesting ; and said contest shall be conducted in compliance with existing laws of this state, with reference to the contest of elections for county officers, so far as the same may be applicable. R. S. 1845, ch. 37. This proceeding was commenced in the mode prescribed by statute, and was heard before three justices of the peace in said county, who made their certificate in favor of H. H. Littlefield, the contestant, and thereupon. Green, the respondent, perfected his appeal to the circuit court of Cass county. The principal contest was made on the returns from the Virginia precinct. It was claimed that illegal votes were cast in the Beardstown and Lancaster precincts, but no particular irregularity was shown to have occurred in the election. It was admitted in the argument, that if the Virginia vote was thrown out, the majority would be against removal; if counted, there would be a majority for removal. Virginia precinct cast, at that election, 2820 votes, and the judges certified that 2820 votes were cast for removal and none against removal ; that precinct had, at the date of the election, an entire population of between 1700 and 1800, and about 450 legal votes. The namefe of the first 668 voters, as appears from the poll- books, appear to have been registered and voted in alpha- betical and numerical order; as, for example, John Needham is the first name that appears upon the poll- books, as having voted on the 9th day of April; his name appears first upon the register, under "N," and the next name on the poll-books that begins with N is registered immediately under the name of Needham, and so on; through these poll-books and registers, up to about 'So. 668, the voters appear to have been registered and voted in this exact alphabetical and numerical order; from 668 to 955, the voters appear to have voted in alphabetical order from A, running through the alphabet to Z, and then from Z to A in the inverse order; from 955 to 985, this order is changed, and the names on the poll-books LiTTLEFIELD V. GbEBN. 495 (Rejection of polls.) appear, from 4 to 6, together, commencing with the same letter of the alphabet; from 986 to 1191, the alphabetical order is resumed, and this continues, with an occasional break, through the entire poll-books to 2820. It was not, however, claimed upon the argument, by the respondent, that the names upon the poll-books were genuine after 668, but that, up to that number, they were legal voters. But the proof showed, that there were but 453 legal voters in the entire Virginia precinct, and that the names of these voters, instead of appearing first upon the poll-books, in consecutive order, as they should have done, were scattered through the entire poll-books from No. 1 to ISo. 2500. Take, for example, the name of S. B. Freeman, who swears that he voted at about two o'clock P. M., his number is 480; H. D. Freeman states, that he voted not long after, and his name is 2572 ; and that J. M. Stribling and Joseph Hunt voted about the time he did, and their numbers are 2571 and 2573. The Freemans could not have voted so near together in point of time, and their numbers be so far apart ; and then H. D. Free- man, Stribling and Hunt were legal voters, and their names should have appeared within 453, or, at least, within 667, upon the theory of the respondent, that the first part of the poll-books are genuine up to ISo. 667, and the balance fabricated ; and not one of the witnesses is able or willing to explain, how the names of these legal voters got into company of those that are admitted to be spurious and fictitious. It was insisted, upon the argument, by the respondent, that the poll-book of the Virginia precinct, should be taken as evidence, that as many as 400 or 450 legal voters had voted at the election, for removal; and the question is here presented, whether these irregularities and frauds, appearing upon the face of the poll-books, in connection with the other testimony in the case, destroys them as evidence of what they purport to be. It is, undoubtedly, the rule, that if the canvassing court can separate the 496 LlTTLEFIBLD V. GrBBN. (Rejection of polls.) legal from the illegal votes, and reject the illegal ones, they are hound to do so, and that mere irregularities in the manner of conducting an election, or a fraud on the part of the officers, will not vitiate, unless it he of so gross a character as to destroy all means of ascertaining the true results. Piatt v. People, 29 111. 72; 8 K Y. 68. Our own supreme court has laid down this rule: ."if an irregularity of which complaint is made, be shown to have deprived no legal voter of his rights, nor admitted a dis- qualified person to vote, if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it, it may be over- looked. Piatt V. People, 29 111. 72 ; Ang. & Ames Corp. 94. How, then, does the vote of the Virginia precinct appear in the light of this law? do the irregularities and frauds, admitted to have been practised, place the true result in uncertainty? were disqualified persons admitted to vote? and was this procured by those seeking to derive benefit from their own frauds? It was admitted, that out of the 2820 votes cast in that precinct for removal, not more than 453 could be legal votes; but it is insisted, by the re- spondent, that, inasmuch as they have proved that upwards of 400 legal voters were in the Virginia precinct, at that time, they should be counted for removal. But which 400 names on the poll-book, can the court count as legal voters ? the first, second, third or fourth 400? For, it is in proof, that a large number of the names of those claimed to be legal voters, do not appear upon the poll-books within the first 400, or the second 400, but many of them appear as high up as 2500. It Avould be impossible, then, for the court to count the first 400 names on the poll-books as legal votes. Where shall the court commence to count the legal votes, and where shall it draw the line between the legal and illegal votes ? Do not these facts cast an uncertainty over the whole result ? But how do the poll-books, registers and ballots appear in the light of the testimony of the officers, who conducted LiTTLEFIELD V. GrEBN. 497 (Rejection of polls.) the Virginia election ? It appears from the evidence, that the Virginia interest was determined, from the first, to carry the election for removal at all hazards ; and hence, two of the board of re^stry, after acting, two days, de- clined to act further, one, for the reason that he would not be a party to the frauds that were about to be perpe- trated, and the other, for the reason that he could do more off the board, than he could do on it, to further the ends to be obtained. Other men were selected who were not so tender-footed upon questions of honesty, and the regis- ters were completed ; and they contain, as the board say, 2820 names of legal voters, in a precinct that contained about 1700 inhabitants, all told. When one of this board was asked, if any other person assisted in making the registers, he refused to answer, because it might subject him to a criminal prosecution; and when asked, what guide they had to enable them to make the corrected registers for the Virginia precinct, he refused to answer, for the same reason. On the day of election, these officers shut themselves up in a school-house; an aperture in the window was pre- pared, through which to receive the ballots ; and there these officers of the law, after having solemnly sworn " that they would studiously endeavor to prevent fraud, deceit and abuse in conducting the election" (with their false and fabricated registers before them), commenced receiving the 2820 votes, which they certify were cast on that day, for removal, in the Virginia precinct, when they must have known, there were not more than 453 legal voters in the precinct. "When one of the judges was asked, if 2820 different persons actually presented themselves to vote, on that day, he refused to answer, because it might subject him to a criminal prosecution; when asked, how many names were on the poll-books when the polls closed, he refused to answer for the same reason ; when asked, how many bond fide ballots were counted out of the box, after the polls were closed, he refused to answer, because it 32 498 LiTTLEFIBLD V. GeBEN. (Rejection of polls.) might subject him to a criminal prosecution ; and when asked, whether any other persons acted as clerks in pre- paring the returns, on the night succeeding the election, in the Virginia precinct, he refused to answer for the same reason. This is, substantially, the character of the testimony of all the officers who conducted the election, on this point. One of them swears that he cannot account for the names appearing in alphabetical order on the poll-books, from A to Z, and from Z to A, but thinks that men voted in that order, a thing impossible and incredible. Another of these judges of election swears, that they stopped count- ing the ballots about midnight, and lay down on the benches and slept until daylight ; that they left the ballot- box there unsealed; that at daylight, they resumed count- ing, went to breakfast at the usual hour, and left the ballot-box in the house; other persons were in the house; this witness, when asked whether he numbered all the ballots that were put in the ballot-box that day, refused to answer, because it might criminate him, and asked the protection of the court; and yet, this judge of election says, he was the one whose duty it was to receive the ballots and put them into the ballot-box. He refused to answer whether he put in 1000 ballots, because it might criminate him, but thought he might have put in 800 ; was quite cer- tain he put in 600, but could not say that they were all legal votes. Another of these election officers swears, that the names of the voters might have been called off, by some per- son having a list of them outside, and the ballots handed in, through the hole, by this person; another witness swears, that he voted through a hole in the window, and could not see what was going on inside. And this is the class of testimony, running through 1000 pages or more of manuscript, from which the court is asked to rescue the legal votes, and decide that at least 453 legal votes were cast for removal in the Virginia precinct. The diffi- culty is, that these registers, poll-books, ballots and tes- LiTTLEFIELD V. GrEEN. 499 (Rejection of polls.) timony, are so contradictory, mysterious, evasive, false and fraudulent, that they are utterly unworthy of credit. If they could be personified, and put upon the stand as witnesses, and made to speak their contents, they would not be believed for a moment, in the lowest and most insignificant court in the country. I think it may be fairly inferred from the evidence, that some time before the election, the leading spirits of "Vir- ginia, including many of her representative citizens, con- cocted a plan to carry this election by fraud or unfair means ; and their only excuse was, that they feared Beards- town would be guilty of the same thing ; and hence, a board of registry was selected to carry out this fraudulent purpose. The ballot-box, on the day of election, was stufled with 2370 illegal votes ; the poll-books and registers have, on almost every page, these badges of fraud ; and the officers of the election have the effirontery to come forward and attempt to sustain it, by the most unblushing testi- mony that was ever heard in a court of justice. The law will presume everything against a set of men who are shown to be pursuing such a fraudulent and dishonest course. But it is insisted by the respondent, that it is in proof, that 453 legal voters voted in the Virginia precinct for removal, and that they ought to be counted, notwithstand- ing the frauds perpetrated by the officers of the election ; that a legal voter ought not to be disfranchised on account of the misconduct of an election officer. But there is no proof, outside of the poll-books, that 453 legal voters actually voted at that election ; there is some proof, that this number resided in the precinct at that time, but the court cannot presume that they voted on the 9th April, much less, that they voted for removal. There is evidence, dehors the poll-books, that about 50 legal voters did actu- ally vote for removal, in the Virginia precinct, and they should be counted ; but there is no evidence, except the poll-books, that the 400 voted at all ; their names might 500 LiTTLEFIBLD V. QeEEN. (Rejection of polls.) have been fabricated, for aught that appears, the same as the 2370 fictitious ones that were voted on that day. As I have remarked, the irregularities at the Virginia election, the fraud on the part of the officers conducting it, and those who were even to derive a benefit from its success, the unac- countable manner in which the names appear on the poll- books, the contradictory and unsatisfactory testimony introduced to support them, and the refusal, on the part of the perpetrators of this fraud, to give the court any in- sight into the labyrinth of uncertainties, renders these poll-books and ballots entirely unworthy of credit, and renders it impossible to count the legal votes and reject the illegal ones. It is probable that Virginia, upon a fair and honest vote, could remove the county-seat ; such a vote would be sanc- tioned by the law of the land, and endorsed by the moral sense of the community. "Were I, however, to declare the result in favor of Virginia, upon these facts, it would, in- deed, have the force and effect of law, hut it would not he law. It would be allowing the majority, by fraud, to trample upon the rights of the minority ; it would be an endorsement, by a court of justice, of one of the most stu- pendous frauds of modern times. It is insisted by the respondent, that there were frauds committed in the Beardstown precinct, and so there were ; but this did not justify fraud on the part of Virginia; the court cannot offset one fraud against another, and give the victory to the one committing the greatest fraud. But no fraud, on investigation, was charged upon the officers who conducted the election in Beardstown ; it was proved that about 47 illegal votes were cast against re- moval by thirty-day men, and those naturalized in the county court, and they must be thrown out. So with the Lancaster precinct, 194 illegal votes were cast for removal, and these must be cast out ; the court, in these two cases, has no difficulty in separating the true from the false. LiTTLEFIBLD V. GrEEN. 501 (Kejection of polls.) After rejecting the poll-books and other record evidence of the Virginia precinct, and allowing it all the legal votes proved dehors the record (about 50), it leaves a ma- jority against removal of 227 votes. It is due to the im- portance of this contest, to the able and distinguished counsel on both sides, and to the earnestness and zeal with which counsel for the respondent have urged their points, that I should have considered this contest well, carefully and at length ; and while I may have erred, I have a consciousness of having done right. Decree for contestant. Perhaps no question which, can arise in reference to the elective fran- chisehas, in Pennsylvania, given rise to more diversity of opinion than the one discussed in Littlefleld v. Green, namely, the circumstances under which the poll of an entire election division may be rejected ; the one political party holding that it is only allowable where there has been no legal election, or where it is impossible to purge the poll of the ille- gal votes ; and the other, that it is a matter of judicial discretion to de- termine whether the infractions of law on the part of the election oflBcers were or were not suflScient to render their returns unworthy of credit ; in other words, the one party would infringe as little as possible upon the chartered rights of the people, whilst the other would vest the whole political power in a partisan court. In Mann v. Cassidy, 1 Brewst. 60, the doctrine of Littlefleld v. Green, received the approval of the court ; it was there said by Thompson, P. J., "that where the conduct of the election officers is such, as to destroy the integrity of their returns, and to avoid the prima facie character which they ought to bear, as evidence, due and adequate proof must be de- manded of each vote relied on." So, in Thompson v. Ewing, Ibid. 107, it is said by the same learned judge, that " the whole conduct of elec- tion officers may, though actual fraud be not apparent, amount to such gross and culpable negligence, such a disregard of their official duties, as to render their doings unintelligible or unworthy of credence, and their action entirely unreliable for any purpose." The same rule was enunciated in Weaver v. Given, Ibid. 140 ; and in Batturs v. Megary, Ibid. 162, it was held by Allison, P. J., and Peirce, J., that divisions 502 LiTTLBFIELD V. GrRBEN. (Rejection of polls.) in which the law had been entirely disregarded should be stricken out; but Brewster, J., held, that though the court possessed this power, it should only be exercised in the extremest case — where it was impossible to ascertain the true Tote. In Gibbons v. Sheppard, 2 Brewst. 1, the court exercised this power, on the ground of gross infractions of the election law on the part of the officers ; and the like action was had by the general assembly of Pennsylvania, in reference to the same election, in Thayer v. Greenbank, 1 Brewst. 189 ; and by the house of representatives of the United States, in Myers v. Moffet, Ibid. 330 ; but the notoriously partisan character of these decisions entitles them to little credit. The same remark is applicable to the case of Howard v. Cooper, 3 Cong. Elect. Cas. 375. The contrary doctrine was held by the senate of Pennsylvania, at the session of 1871, in Dechert's case, where it was asserted, that the dangerous and odious power of counting men in, or counting them out of their seats in the legislature, by the rejection of returns of district elections, held in due form of law, and at which legal votes were polled, has no more foundation in the laws of the commonwealth, than in the general principles of justice. "To re- ject the whole poll, because the inspectors failed to comply with every prescribed regulation, would be to place a higher value on the statute regulation, than on the right itself; it would be a sacrifice of substance to form." People v. Cook, ante 440. It is beyond doubt, however, that there are causes for which it is the duty of the court to reject the polls of an entire division (Fry v. Booth, 19 Ohio St. R. 37) ; but the limit of this power is indicated by Chief Justice Thompson, in delivering the opinion of the supreme court of Pennsylva- nia in Chad wick «. Melvin (ante 856), where he says that "there is nothing which will justify the striking out of an entire division, but an inability to decipher the returns, or showing that not a single legal vote was polled, or that no election was legally held." (And see Powers ». Reed, 19 Ohio St. R. 307.) Thus, as in Chadwick b. Melvin, it is suffi- cient to reject the poll that the election was not held at the place de- signated by law ; and to the same eflfect, is Knowles ». Yeates, 31 Cal. 83. So, if the polls were closed before the hour appointed by law ; Penn District Election, 3 Pars. 536 ; or, if they were kept open after the legal hour, where enough votes were subsequently polled to have changed the result. Locust Ward Election, 4 Penn. L. J. 341. In these and other cases that may be imagined, it is evident there is either a failure to hold any legal election, or that the conduct of the officers has rendered it im- CoLLiNGs's Case. 503 (Limitation.) possible to ascertain the exact result. The other theory, that for gross disregard of the provision, of the election law on the part of the officers, a poll may be rejected, though legal votes may have been polled, which the parties are prepared to prove, is at variance with the principles on which our institutions are founded, and vests a most dangerous discre- tionary power in the hands of an elective judiciary, the last body upon which a lover of popular freedom would desire to see such a power con- ferred. If a partisan decision be made by a legislative body, bad though it be, the public sentiment is not so much shocked ; the people look upon it as a question of power ; but when the courts fall into the same error, it lessens that respect for their decisions, which is essential to a preserva- tion, in its purity, of our republican form of government. CoLLiNGs's Case. In the Common Pleas of Luzerne County, Pennsylvania. DECEMBER TEKM 1861. (■Reported 2 Luzerne Legal Observer 57.) \^Limitation.'] A petition to contest an election, which is not filed within the time pre- scribed by law, will be quashed, on motion. In Peimsylvania, the time for contesting an election, runs from the day of election, not from that of the meeting of the return judges. This was a petition contesting the election of E. B. CoUings to the office of clerk of the courts of Luzerne county, to which he had been returned as dijly elected at the general election held on the 8th October 1861. The petition was filed on the 16th November ; and the respon- dent moved to quash, on the ground that the petition had not been filed within ten days after the election, as re- quired by law. CoNYNGHAM, P. J., delivered the opinion of the court. A petition or complaint of thirty qualified electors, duly 504 CoLLiNQs's Case. (Limitation.) attested by two of the petitioners, has been filed, contest- ing the election of E. B. CoUings, who has the certificate of the return judges, showing his election to the office of clerk of the courts of Luzerne county. A motion has been made, on the part of Mr. Collings, to quash this com- plaint, on the ground that it was not filed in the pro- thonotary'S office in due time, that is, within ten days after the election. The question now before us is upon this motion. The 6th section of the act of 2d July 1839 (Purd. Dig. 817), regulates our action in such a case; it is therein di- rected how the petition shall be filed, containing, among other provisions, this clause: "and such complaint shall not be valid, or regarded by the court, unless the same shall have been filed in the prothonotary's office, within ten days after the election." The late election was held on the 8th of October, and this petition was filed on the 16th day of November of the same year. Was it filed too late to be considered by the court ? It is not claimed that it was not filed more than ten days after the election, but it is contended, that it is still within time, because the return judges, to count what is called the soldiers' or army vote, did not meet until the first Tuesday of November (the 5th day of the month), and that, until that time, there was no decision or return of any particular candidate, whose election could be contested. From the examination of the complaint, and the other matters agreed upon here, in the argument, by the counsel, the army vote makes no difier- ence in the case, Mr. Collings having received a majority of the votes, of the people, at the county-polls, and the army vote not reducing his number to a minority.* The complaint, in its specifications, makes no objection to the army vote, or any proceedings under it, but it is founded on frauds and irregularities alleged to have been com- * But suppose, the county-poll had shown a majority of 1000 for the in- cumbent, and the army vote had reduced that majority to one, where would have been the equity or justice of this decision? CoLLiNGS s Case. 505 (Limitation.) mitted at several district polls within the county, and hot at all in the manner of conducting the election of the volunteers. The validity or invalidity of the election, and all questions in relation to it, raised by the complaint, are exclusive entirely of the soldiers' vote, except in the circumstances connected with the time of the final count by the judges, and their giving a certificate. There appears to be, under the words of the act we have quoted, a limit fixed by the statute to the time of filing a petition — " within ten days after the election ;" here a question arises in the outset, what is meant by the words, " the election." It is argued, that these words are intended to comprise the whole machinery connected with the day of election, the meeting of the judges, and their final count and certificate, and that, if filed within ten days after the completion of all these duties, the petition is still within the statutory time and limit. In order to ascertain the true meaning of these words, it is our duty, in the first place, to refer to the statute itself and to kindred acts, and endeavor to discover the sense in which the same expression is used in other places. These words are repeated several times in the act, and under such circumstances that the context can leave no doubt of their true meaning; we refer to a number of instances, taken from the act of July 1839, regulating elections generally. Purd. Dig. 372, et infra. The sherift" is to give notice of the general election, twenty days before the election (pi.- 19); inspectors and judges are to meet at the place of holding the election (pi. 22); at elections as aforesaid, tickets are to be delivered, &c. (pi. 32) ; the judges are termed, judges of the election (pi. 34 and 38); time of opening the election (pi. 35) ; persons offering to vote at any election (pi. 37) ; and so, qualifications of persons to vote at an election (pi. 43); duty of the judges when the poll is closed (pi. 53) ; and when this is done, the election is said to be finished (pi. 55); the return judges are to meet the third day after the day of election. These are some 506 CoLLiNGs's Case. (Limitation.) of the many instances in which the word "election" is used in the acts regulating the election of officers, in- cluding the clerks of the courts, and in them there is no room left for doubt, but that all the cases refer to that which is to, be done, and is then final and complete, on the regular election day ; that is to say, the doings on the election day, without reference to what is to be performed afterwards, are regarded as the election. There are other matters to be carried out, such as the meeting of the judges, the execution of returns, and the proper delivery and filing of certificates, which are all proper, in order to ascertain and legally make known the results of the election, but which, in fact, form no part of the election itself or election proper. The election in each district, the eflect of which is to be ascertained by a subsequent gathering together of all the districts, is said to h& finished, in the words of the 74th section, when the count of each district, after the closing of the polls, is completed. "We find also the same evident meaning, belonging to the expression " the election," in the third article of our state constitution. In speaking of the qualification of voters, residence and assessment, ten days "before the election," that is, the day of voting, are prerequisites of the right to vote. It would be a novel reading of the constitution, to hold that, because the return judges do not meet until the third day after the day of voting, the time of their meet- ing and count or certificate of votes, is the period to which the residence and assessment refer, and that one becoming a resident, and being assessed, seven days before the elec- tion day, would be authorized to vote. Now, if the term " election" be held, in reference to matters preceding the day, to apply to election day, why shall we, under the constitution and statutes referring to the same general subject, give a different meaning to the same words, when applicable to subsequent matters ? In examining the acts of assembly relating to elections, and the constitution also, we find that the words "the election," invariably bear CoLL-iNGs's Case. 507 (Limitation.) but one meaning ; in no place are they used in a more enlarged sense, than if taken in their common and popular meaning; in so judging, we but follow the rule laid down in Dwarris on Statutes 702, that " the words of a statute are to be taken in their ordinary signification and import, and regard is to be had to their general and popular use ; and the meaning of words, spoken or written, ought to be allowed to be, as it has constantly been taken to be." If then, as we think, the term " election" refers to the re- quirements and duties of the election day, the complaint in this case, according to the words of the statute, was not filed within ten days thereafter. It is contended, however, that the words in the act are merely directory, and that, therefore, in order to carry out the spirit of the act, and permit an examination of the alleged frauds, we can comprehend all the subsequent pro- ceedings, including the last meeting of the return judges, under the general term " election," and consider the com- plaint, because filed within ten days after that period. Under the rules for construing statutes, we do not see how we can hold the words of the act directory merely, because, as used, they are imperative and peremptory in their re- quirements. The act provides, as we have seen, that the complaint shall not be valid or regarded by the court, unless filed within a required period, readily, from the words, to be ascertained ; there seems no latitude for dis- cretion ; the order is positive, that it shall not be consid- ered by the courts or regarded as valid ; the delay has closed the whole matter, and the courts are forbidden judi- cially to look at it, for the purpose of investigating the charges. In no reported case that we have seen, has such language been held directory; there are decisions in the books, in which affirmative words, such as shall or may, according to the intent of a statute, and to carry out its evident purport, have, in the discretion of a court, been regarded as directory and not absolutely imperative ; but when there are negative words declaring that, unless such 508 CoLLiNGs's Case. (Limitation.) a tiling be done or be done in a particular manner, a court shall not have jurisdiction, there is not a case to be found, in which the court has .not considered such express pro- hibition as imperative and positive in requirement. We refer to Robins v. Bellas, 4 Watts 255 ; Woods v. Inger- soll, 1 Binn. 146; Gearhart v. Dixon, 1 Penn. St. R. 224; Steiner v. Coxe, 4 Ibid. 13 ; McElhiney v. Commonwealth, 22 Ibid. 365; Trustees of Erie v. Erie, 31 Ibid. 515; and the older case of Davison v. Gill, 1 East 64; these decisions show the distinction with regard to the discretionary con- struction of statutes; discretionary being merely another word for directory. In a compulsory or imperative statute, there is no room left for discretion, on a question, whether a court is obliged to obey its requirements. The rule we have referred to, is thus laid down in Dwarris on Statutes 715 : " negative words will make a statute imperative ; and • it is apprehended, affirmative may, if they are absolute, explicit and peremptory, and show that no discretion is intended to be given." I^ow, can negative words be used more emphatically and imperatively, than in the particular case before us? is there anything from which an intention to give a discretion can be gathered? It is argued, however, that at an election like the pre- sent, where there may be a vote of soldiers at a distance, unless such a discretion be exercised, there may be a great failure of justice. This maybe; but it does not follow, that the court can rightly assume a jurisdiction which is expressly denied them by statute. It does not come within the general jurisdiction of the court of common pleas, but by virtue of a special and limited authority to act in a certain case ; if the case be not within the provision of the statute, the court cannot take the authority ; that would be assuming legislation. "A casus omissus can, in no case, be supplied by a court of law, for that would be to make laws ; judges are bound to take the act of parliament as the legislature has made it." Dwarris on Statutes 711. "A failure of justice will not be sufficient ground for constru- CoLLiNGs's Case. 509 (Limitation.) ing a statute against its clear meaning, so as to give a court jurisdiction." Pitman v. Flint, 10 Pick. 506. But even if there be plausibility in the argument with regard to the soldiers' vote, that question does not arise here ; because there is no complaint as to anything arising out of this vote ; the objections are all to the votes in the home districts, and under this complaint, if received, these are the only matters asked to be the subject of inquiry. The mere allusion to the army vote is not sufficient ; any refer- ence in the complaint, not the subject of inquiry by the court, would, on motion, be stricken out as irrelevant; see Carpenter's Case, 2 Pars. 537; Kneass's Case, Ibid. 553; it will hardly be Contended, that subjects which do not alFect the election, can be used merely to give the court juris- diction. It is also pressed upon the consideration of the court, that there can be no contest iill after the return of the judges, showing that some one is elected. But this is a mistake; it is not required that a defeated candidate or his friends shall contest an election ; in no part of the act, ex- cept that relating to a governor, or to a member of the senate or house of representatives, are the contesting or disputing candidates called parties ; in these cases, it be- comes necessary to name them as such, for they have a part to perform in organizing the tribunal to judge of their rights. But it is not so in the case of the clerk of the courts ; it is the people who complain of an undue elec- tion or return of an officer, and where, as in the present case, objections are founded on alleged frauds in particular districts, all of them to be, by law,, ascertained and known within ten days after the election proper, and not later, shall they not be held to complain within the statutory time ? The people in each district know of the result there, as soon as the count is completed, and declaration made of the result by their judge, under the 75th section (Purd. Dig. 377, pi. 56); again, a list of the voters and one of the tally-papers are forwarded to the prothonotary's 510 CoLLiNGs's Case. (Limitation.) office, within three days, to be open to the inspection of all; indeed, the prothonotary is bound, by the 85th sec- tion (pi. 68), to give copies of all such papers to any person applying for the same ; so that there can be no difficulty in ascertaining all facts and charges of the character now advanced, within the required period* "Would it be in accordance with the purport of the statute to say, that ob- jectors may postpone the inquiry, until they find whether they want to object or not ; or, if they do ascertain frauds, keep them secret until after the judges make a return? Whatever may be the fact, that ordinarily, only a de- feated candidate or his friends do contest an election, and therefore, that until a return be made, they cannot know the necessity of so doing, such, as we have already said, is not the theory of the law; any qualified voters may initiate the complaint, and make known to the court, that in any particular district or districts, there has been fraudulent voting, specifying in what the fraud consists, and how it would vary the particular return of a district. When the result of the whole election becomes known, and the full return is made by the judges, the court can see if the alleged frauds in particular districts, will vary the several returns of the election, and if found to affect it, then " the returns of elections will be subject to their inquiry, determination and judgment." The law presumes that, at any rate, some of the people, without regard to * The fallacy of this reasoning will be seen at a glance, by putting a very supposable case ; the incumbent might be returned by a considerable majority, say 600, there might be full proof that he received 50 illegal votes, but this would not change the result, and therefore, no petition could be filed, that the court would sustain ; but if, on the counting of the soldiers' vote, the majority for the incumbent were reduced below BO, it is evident, that the position of affairs would be entirely changed, and that there would be now a good case, which could not have been presented before. This is no argument in favor of the position, that the limitation of ten days is directory merely, but to show that, on the equity of the statute, it should not be held to commence running until the final count of the soldiers' vote. CoLLiNGs's Case, 511 (Limitation.) individual friendship, or party feelings, or the defeat of any candidate, will act without delay.* There is an object, too, in requiring speedy action in such cases. On the one hand, the complainants have the declaration of the judge of the count at the poll of each district, the returned list of voters and tally-papers, and ten days after the election to inquire and ascertain facts ; such is the time limited to the complainants, because the greater the delay, the more difficulty is there, not only in ferreting out a fraud, but also in looking up the evidence to answer the charges, when made, by those who desire to support the election. In the present case, too, where the claim for delay is made only in consequence of waiting for the count of the army vote (which does not affect the question), we may add, as a fact understood and infor- mally made public through the papers, within the ten days, that the return judges did meet on the third day after the election, and add up the votes of the several county districts ; the result, so far as at this time, under the present case, important, was as fully, though not as formally declared, as since the final meeting of the judges ; it is to be presum.ed, that the complaining parties knew, or might have known, by early and due inquiry, the frauds which they now allege. Why, then, should the clear, plain and direct language of the act of assembly be violated, when it was entirely within their power to raise the question in due season? If the frauds alleged had been in the army vote, or the result were in any way affected by a refusal to count it, there would be, as we have said, plausibility in the argument, that the necessity would justify an extension of the time. Even then, how- ever, it might be questionable, whether, rather than * A more fallacious argument was never penned ; it only shows how the judgment of an estimable, honest and learned judge can be warped by. his party feelings, in a contested election case ; and how unfit a depository of this delicate jurisdiction, is the judicial department, as organized in the United States. 512 CoLiiiNGs's Case. (Limitation.) directly disregard the words of the act, it should not be considered an oversight in the legislature, in not pro- viding for a contest in such an election or return, in the manner provided with regard to other elections. Perhaps, if not reached by this statutory proceeding, there might be another remedy by proceeding in a quo warranto. We, do not now undertake to decide what our opinion would be, if the contest depended upon facts connected with the final return of the judges, or the count or rejec- tion of the army vote, or any fraud or irregularity therein, as in the Philadelphia case to which our attention has been called through the papers; there would still be diflS- culty in reaching the case. Yet, so great would be the inconsistency of tendering to the people a remedy for fraud, which, by no zeal or promptness, they could be able to use, from inability to procure a return of the votes, or learn their character, within ten days after the election, that necessity, if this were the only resort, might induce the court to take cognisance of the proceeding. But the rule of action in such case, cannot apply to another wholly different, where the reason for such action entirely fails, and the foundation upon which the claim for the jurisdic- tion is erected, does not exist. In the one case, the people cannot act; in the other, they have had the opportunity, in due season, to initiate the remedy, but, through mis- apprehension or other reason, have neglected to avail themselves of it. Here, the only question raised, which can affect the result, is, whether the election on the 8th day of October last, was conducted fairly and legally at certain election districts within the county of Luzerne ; the mere fact, that there was a vote of soldiers, not varying the election as de- cided by the vote within the county, cannot be brought in to authorize a contest which should have been initiated at an earlier day. The complaining voters might have as- certained, and were bound to have ascertained, the mat- ters alleged, within the allowed ten days after the election. GoLLiNGs's Case. 513 (Limitation.) irrespective of the question of who might be the success- ful candidate. It is true, the court could not issue process to inquire into the matter, until it was legally ascertained that establishing the truth of the complaint would vary the result, nor until a successful candidate was returned upon whom the process could be served; yet this would not prevent the commencement of the proceed- ing, by the filing of the complaint, which is not required to be done in court, but only in the prothonotary's ofiice. "We repeat, that in no part of the act, relating to an office such as the present, is the defeated candidate looked upon as a party, or as liable, in any event, to costs, un- less voluntarily assumed ; the petitioners or complaining voters, acting in the pursuit of their own rights, for the honest purpose of purifying the ballot-box from fraud, are alone looked to as contestants, and in one event alone liable to costs. It is not regarded as the complaint of the candidate ; he cannot be permitted to withdraw or in any way control it. If the alleged fraud, upon being proved, would apparently change the result of the election, unless the people represented by the petitioners agree to it, an arrangement made between the different candidates, could not be used to defeat the contest ; it may be abandoned and withdrawn, if no one will come forward to prosecute it, but the candidate cannot so control it. It is not the right of the individual alone who may be interested in the office, to defeat or set aside a fraudulent election ; in him there maybe a personal or pecuniary interest, but with the people there remains a public or moral right Jo act. To sustain the present proceedings, we must say, in effect,, that in all cases of contest under the act of 2d July 1839, the words " within few days after the election," are to be- construed "within thirteen days after the election," or,, within ten days after the judges shall have made their final and united count. This, it seems to us, where there- is no positive necessity for such a construction, in order 33 614 CoLLiNGs's Case. (Limitation.) to protect the rights either of the public or of an individual, would be an alteration or evasion of the statute, which courts ought not to countenance. We have, in this case, sought to take cognisance of the complaint, if, in our opinion, the law would permit it. The allegations of irregularity and fraud are of such a character, that they deserve investigation, if, under the statute, it can be given; but if the court has not jurisdiction, we cannot assume it, even to attempt to redress an alleged wrong. If, as we think, the legislature has not given us the power to act upon a complaint made and filed five weeks after the election, we cannot exercise it. In the words of Mr. Justice King, in Clark's Case, 2 Pars. 524, " we have no authority as a court over the subject, except what is derived from statute ; if the question is not pre- sented to us in the form prescribed, we are without juris- diction." "We have thus endeavored to give our own views, with the reasons upon which they rest; we may be wrong, and other judges may arrive at a different conclusion, and therefore, we hope that, in this matter of form, the supreme court, if desired, may be induced to review our action. "We are aware of the decision in Carpenter's Case, 14 Penn. St. R. 486, but the point there was different from the one presented now. Though the judgment of the common pleas, upon a contested election, may be final, when made upon the merits, or even the mode of setting forth the complaint, yet, a refusal to receive a complaint against an election, is different, and we believe, can be reached by the supervisory process of the supreme court ; we refer to Scheetz's Case, mentioned in the note to Purd. Dig. 818 ; and the expression of Mr. Justice Lewis, in Commonwealth V. Grarrigues, 28 Penn. St. R. 11, "that the regularity of such proceedings may be called in question on a certiorari." Wg refuse, then, to receive this complaint, because not filed in time to give the court jurisdiction ; and direct, therefore, that it be quashed or dismissed, simply for the CoLLiNGs's Case. 515 (Limitation.) reason that the petition was filed out of time. Holding this opinion, we prefer to put it in this shape, as most likely to be reviewed; if we should take cognisance of the case, and then dispose of it, even on the present ground, our judgment would clearly be final, and could not be re-examined ; if, however, we refuse to hear the case, as we do, the supreme court ma;y examine it on a certiorari, or may, by a mandamus, order us to proceed and give the party contesting, a hearing. Complaint dismissed. A more equitable and just conclusion was reached by the court of quarter sessions of Philadelphia, in the case of Thompson «. Swing, where it was ruled by Thompson, P. J., that the ten days within which a petition contesting an election, must be filed, count from the day the return judges make out their certificate, and not from the day on which the polls close. 1 Brewst. 67. The same point was decided, in Steven- son V. Lawrence, 1 Brewst. 126, when Judge Thompson said: "It is to be observed, that the present question has no relation to a case in which the votes given within the county and a return of the same, made within ten days from the day of election, are the subject of complaint set out in the petition filed, in which case, the restriction to the time mentioned may well have a practicable and sensible application, but that this complaint is made against an undue election and return of votes cast by persons not within the limits of this county, who were in the military service, and authorized to vote under the provisions of the election law, the returns of whose votes could not be legally enumerated until the second Tuesday of November next after the election. It is admitted that the vote cast within this county gave a majority to the contestant, W. C. Stevenson ; that no return of any vote was made by the return judges, until after the second Tuesday in November 1861, more than a month after the day of the election ; that the returns of the military vote were not open to inspection, until more than ten days after the day of the election. It thus appears, that at the expiration of ten days after the day of the election, the only votes of which actual knowledge could be had, viz : the county votes, showed that the con- testant had then no cause to make any complaint, no petitioners could 516 CoLLiNGs's Case. (Limitation.) then take the oath required to give validity to a petition contesting the returns. If the riglit of a party to complain of an undue election or return, be absolutely fixed, on the tenth day after the election, so as to require him then to contest the return, and not afterwards, the entire proceeding as to him must be considered as terminated, and no other return of votes can be received to affect his rights. It would be absurd to suppose, that the legislature intentionally passed, on the same day, two laws, one of which allowed votes to be taken, but not enumerated by the return judges until November, and which votes are to affect the candidates voted for, while the other law obliges the parties complaining of the undue election or return of any oflScer, to file their objections to the entire returns of such election, within ten days from the election day." It will be seen, that these cases are not absolutely at variance with the decision of Judge Conyngham in Collings's Case, but the reasoning of Judge Thompson must satisfy any one that if the exact case had come before him he would not have followed that decision. See 1 Pechwell xxvii. But, in Louisiana, the very point has been de- cided, that a notice of contest is in time, if given within ten days after proclamation of the result. Davis v. Maxwell, 32 La. An. 66. See Bowen v. Hixon, 45 Mo. 340. 517 Pestk District Election Case. In the Court of Quarter Sessions of Philadelphia. SEPTEMBER SESSIONS 1848. , (Uneeported.) [^Division of election district^] Upon the division of an election district, the functions of the election officers are destroyed, and cannot be exercised in either of the new elec- tion districts into which the old one is divided ; the official functions of local officers fall with the political annihilation of the locality for which they were chosen or appointed. Where an act of assembly, dividing an election district, appointed elec- tion officers for the ensuing general state election, it was held, that they were invested with all the powers of officers chosen by the people, and consequently, were competent to conduct the presidential election in the same year. The petition in this case set forth that at the preceding March election, there were two election polls opened in the district of Penn, and votes polled at each, of which regular returns were made ; that by the aggregate vote of the two polls it appeared that John L. Kucher had the highest number of votes for judge of election, and Henry "Walters and Conrad Carpenter for inspectors; that the said election had never been set aside ; that on the 7th of April 1848, an act was passed empowering the court to appoint officers in certain events; and that on the 10th of April 1848, another act was passed appointing Thomas Davis, Conrad Carpenter and William Wentzell, officers for the October election, but no provision was made by said act for the presidential election; the petitioners, there- fore, further setting forth that they were in great doubt as to who were the proper officers to conduct this election, prayed the direction of the court in the premises. King, P. J., delivered the opinion of the court. The prayer of the petition asks for no precise relief; it merely 518 Pbnn District Election Case. (Division of election district.) asks that we shall make such order as to us shall seem proper. On the argument, however, the wishes of the petitioners were expressed in a more definite form ; they were, that the court should appoint judges and inspectors of the presidential election to be held to-morrow in this district. "We possess no authority to appoint election officers of this or any other district, unless such power be given by law; if such a power be so given, it is our plain duty to execute it; if no such power be given, it is equally our duty to refuse to act. The character and importance of the election should only make us more cautious of interfering in its organization in this district, unless we have the clear right to do so. What is, then, the power invoked? and, under what circumstances, is its exercise asked? All our authority over the subject is found in the 21st section of the "act regulating election districts," passed the 7th April 1848 ; it is brief, being contained in these words: "that from and after the passage of this act, in all cases where the citizens of the district of Eenn shall fail to elect judges and inspec- tors of elections, or the same shall be set aside, from infor- mality or otherwise, the judges of the court of quarter ses- sions shall fill all vacancies so occurring." P. L. 367. This law is remarkable for its clearness and precision ; two per- fectly-defined cases of vacancies in the election officers are provided for; one, where the citizens have failed to elect, the other, Where they have held an election which has been set aside for informality or otherwise ; all other va- cancies, not embraced in these two classes, are to be sup- plied under the general laws governing the other election districts of the commonwealth. This question might be elaborated, but could not be made clearer; the enactment is one that he who runs may read. "When our authority, under this act, is invoked, one of two things must be shown to us, either that the people of the district have failed to hold an election for the choice of their own elec- tion officers, or, that having held such election, the same Pbnn District Election Case. 619 (Division of election district.) has been set aside by the judicial act of this court, after a full trial and hearing, prosecuted in the manner pointed out by law for contesting township elections ; for supply- ing any other class of vacancies, the general laws must be looked to. So far as respects myself, there is no novelty in this construction; it was given by me, in April last, when applied to by the inhabitants of this township to select judges for a special election to be held for commis- sioners; I refused, because the applicants did not exhibit one of the cases provided for by the act of 1848. At the time of this refusal, I was most anxious to exercise the authority invoked, because a local dispute running very high in the district, made such a choice of election offi- cers by the court, most desirable ; but I felt I could not do so, with a proper deference to the plain letter of the law, which too clearly expressed its own purposes, to leave any room for doubt. The law under which we are called to act being thus ascertained, what are the facts to which we are asked to apply it ? They are few and simple. On the 1 7th of March last, the district of Penn composed one election district; on that day, being the day fixed by law for holding town- ship elections, the citizens of the district assembled at the place of holding them; very soon a dispute arose in regard to the choice of officers of the election, each party claim- ing to have chosen them ; the two constables of the district opened separate election polls, the elections were held, and two sets of returns of these elections were filed in the clerk's office, where they have both remained since, the question of their regularity never having been submitted to the court of quarter sessions, in the form of a contest of the election. So stood matters until the 10th of April 1848, when an act of assembly was passed, dividing^ the Penn district into two election districts, making the centre of Broad street the line between them, and designating places in each of the new divisions, where all general and special elections should thereafter be held, by the citizens residing 520 Penn District Election Case, (Division of election district.) within the respective precincts. The act then declares "that the officers elected on the 17th of March last (namely, Thomas T. Davis, Conrad Carpenter and William "Went- zell), for conducting the general elections to be held on the second Tuesday of October next ensuing, shall act as offi- cers and conduct the election in the west precinct, at the new election poll created by this act, to wit, at the house of Jacob Peters, Jr., at the southwest corner of Ridge road and Girard avenue ; and the judge of the said election shall appoint a judge of election of the east precinct; and each of the inspectors of said election shall appoint an inspector for the east precinct ; the said judge and inspectors so appointed to hold and conduct the election at the new election poll created by this act, to wit, at the house now used as the commissioners' hall, at the northeast corner of Tenth and Thompson streets." P. L. 461. In pursuance of this act, Davis, Carpenter and "Wentzell appointed a judge and in- spectors for the eastern precinct, and they and their nominees conducted the recent general election in the new precincts. One of the doubts entertained by the petitioners is, as to the powers of these designated officers to hold the presi- dential election, considering their authority confined to the holding of the October election. Previously to express- ing our opinion on this branch of the case, we deem it important to consider, what was the legal effect of the division of the district into two precincts, by the act of April 1848, on the elections held on the 17th of March 1848, even admitting those elections, as regards judge and inspectors, to have been perfectly regular. These elections were held for judge and inspectors of the whole and undi- vided district of Penn, then composing a single election district; when, however, the legislature thought fit to divide this district territorially, into two new subdivi- sions, for election purposes ; to create two separate and distinct election polls, requiring separate and distinct offi- , cers, and a separate organization, the single election dis- trict of Penn went out of existence, its place being supplied by the new precincts. It was not the case where a given Pbnn District Election Case. 521 (Division of election district.) part of an old district was formed into a new one, and where provision was only made for the new district ; the whole district was cut into two parts, two new election districts formed from it, and the old district thus wiped out of existence as a separate election district. On what principle could the election officers of the repealed election district have acted in the new ones ? They could not have done so in both, that is quite certain ; could they have made choice of either? if so, what would have become of the other district? suppose their residence had been in different precincts, how could either of them act as the officer of an election where he had no right to vote? All these difficulties are solved by the application of a per- fectly familiar principle, viz : that the official functions of local officers fall, with the political annihilation of the locality for which they were chosen or appointed. In the leading case on this subject, Respublica v. McClean, 4 Yeates 399, the supreme court ruled that, where new counties are formed out of parts of old ones, the commis- sions of justices of the peace, who had been commissioned for the old counties, but who, by the subdivision, were thrown into the new ones, were thereby vacated: "his commission," says Chief Justice Tilghman, speaking of the justice in that case, "necessarily became void by the political annihilation of that part of the county for which he was commissioned, and where he resides." It was on this principle, that this court held, last term, that the office of settler of the township accounts of Passyunk township became vacant, from the fact that the officer elect had been thrown into Moyamensing, by the annexa- tion of that part of the territory of Passyunk in which he lived into Moyamensing.* * See Nortli WhitehaU ». South Whitehall, 3 S. & R. 121, where it was said by Gibson, J.^that "on the breaking up of a township, by forming it into new ones, there is an end of its overseers, and consequently, of all corporate powers." It is not, however, in the power of the legislature to abolish a judicial district, and thus vacate the commissions of the judges ; they are protected by the constitution. Commonwealth v. Gamble, 2 Legal Gaz. 20. 522 Penn District Election Case, (Division of election district.) The legislature, in acting on these subjects, seem to have been regulated by the same principle. By an act passed the 4th of February 1846, Cedar ward, in the city of Philadelphia, was divided into three wards, viz: Spruce, Cedar and Lombard ; the 5th section of this act authorized the judge and inspectors of old Cedar ward to appoint judges and inspectors for Spruce and Cedar wards, and authorized the original Cedar ward officers to act in Lombard. P. L. 25. By the act regulating election dis- tricts, passed the 16th of March 1847, John O'Brien, Phillip Duffy and Henry Funk were, by name, appointed inspectors of the Eichmond district election, and by a special clause, the authority of the judge and inspectors of the unincorporated district of the IsTorthern Liberties, of which it seems Richmond formed , a part, was con- firmed. P. L. 424. These precedents might be increased ; but enough have been cited, to show that, when the legisla- ture have heretofore created new wards or districts, they have never supposed that the old election officers possessed any power in the new ones formed out of them ; nor do they seem to have entertained a doubt as to their right to name the election officers of the new districts, or, what is the same thing, to authorize other designated individuals to name them. The necessary result seems, therefore, to be, either that the officers named in the act of 1848, and their nominees, are to hold the presidential election ; or, if their granted power be not large enough for that purpose, a case has arisen not provided for by law ; a case, however, in which the court have no power to appoint, because it neither arises from failure to elect, nor from an election set aside by judicial process. The remaining question, then, for consideration is, whether the legislative nominees were judges for the single election in October last, or whether they have had im- parted to them all the powers and authorities with which they would have been invested had they been duly elected in March last ? If they have such powers given to them, Penn District Election Case. 523 (Division of election district.) under the true construction of the act of 1848, then they are the proper officers to hold the presidential election ; for, by the 14th section of the general election law, it is declared, "that the general, special, city, incorporated district and township elections, and all elections for elec- tors of president and vice-president of the United States, shall be held and conducted by the inspectors and judges elected as aforesaid, and by clerks appointed as is herein- after provided."* Of the authority of the legislature to name the officers of newly-created election districts, we entertain no doubt; precedent and public convenience both justify it. In naming such officers, the legislature gave them all the powers and faculties necessary to carry the duties assigned to them into effect. There is no more familiar officer in our civil code, than the judge or inspector of elections ; in assigning an individual to execute such an office, he is, ipso facto, clothed with the powers necessary to execute the duties imposed on him. It is the opinion of the court, that, in this instance, it was the legislative intention to give their nominees the same powers as if they had been the duly-chosen and un- disputed inspectors and judge of the Penn district, elected in March* last. That the legislative intention was, to completely organize these districts, there being no assign- able reason why they should have intended to limit the * It has been ruled by the court of common pleas of Philadelphia^ that the ofSces of inspector and judge are annual ones, and therefore, that those elected at the general election are to hold the presidential election in the same year. 16th October 1852. Ee-a£Qrmed by Allison, J., 1st August 1864. It has also been decided by the same court, that one appointed to fill a vacancy in the office of inspector, in place of the one elected by the people, but who failed to appear and act on the day of election, was entitled to hold the office for the whole year. March 1852. The contrary doctrine, however, was held by the predecessors of the present court, in the case of the Penn District Election, where it was held, that such party was only an officer pro hoc vice, and that the regularly-elected inspector could appear and claim his seat, at a succeeding election. 11th May 1850. See People v. Cook, 8 N. Y. 67, 88 (ante 441). The same court has deter- mined, that the clerk of elections, when appointed, is an annual officer, and cannot be removed by the inspector, except for some disqualifying cause. March 1852. 524 Penn District Election Case. (Division of election district.) authority of the election officers named by them, to one election in the year, leaving all others exposed to the con- flicts that had theretofore disturbed and nullified former elections. That although there is some ambiguity in the law, yet, taken as a whole, it sufficiently manifests, the legislative intention to have been, to create a complete and not a partial organization of the districts; that in describing their nominees as " the officers elected on the 17th of March last," they indicated the true character intended to be imparted to them, and defined their powers to be plenary. That an officer elected in March to hold the general election in October, has, in virtue of his office, the right to hold all intermediate and subsequent elections held during the year; and that treating and describing these nominees as such officers, shows by plain and natu- ral inference, the intention to have been, to give them all the functions properly pertaining to such officers. That the real and manifest object of this enactment was, to validate one of the polls held in this district in March last ; and that the legislature have done so in the most efi'ectual way, by declaring the individuals voted thereat to be " elected ;" that this word, used in the section, casts a direct light on the intention of the legislature, and shows it to have been, to give to the officers, that prece- dent justified them in creating and necessity required them to create, the full and complete legal powers necessary to perform the duties charged upon them. And finally, that this being a question of statutory construction, according to the settled and immemorial usage of courts of law, it is the duty of this and every other court, to seek in this and every other statute, for the true meaning of the law- giver; to execute it, when it is ascertained, as that inten- tion existed when the law was passed, and not, from any change of events, to seek to evade a solemn duty, or defeat the action of a law which they veritably believe to be the true one intended by its framers. In one of those continual applications which are made Penn District Election Case. 525 (DiYision of election district. ) by election officers and citizens, to the judges of this court, for advice, I, certainly, in April last, expressed an opinion, that the functions of the election officers of Penn district, named in the act of 1848, did not come into existence until the October election, and that they were incompetent to hold a special election for district commissioners, taking place after the district was divided into precincts. This opinion was expressed, in an interview with the disputing parties, at my own dwelling, when I made an anxious effiart to promote a compromise among the citizens of the district, which, if it had, been effiBcted, would have re- stored peace and harmony among them. My then opinion was given without argument, and without the assistance of a conference with my brethren, who now all think that the advice that was given on the occasion should have been, that the officers created by the act of the 10th of April, and their nominees in the eastern precinct, were the proper officers to hold the district election. To the opinion of my brethren, thus given, after argument and anxious examination, I am, of course, bound to defer. That I or any other judge should occasionally err in re- sponding to the questions put to us, under the various local election laws and arrangements of this great and populous judicial district, is certainly not strange ; our answers are given in court and out of court, formally and informally, on the spur of the moment, and being ques- tions public in their nature, affecting whole communities, we always, when applied to for advice, feel bound to re- spond, according to our impressions at the time. But whether the functions of the legislative nominees came into existence in October last, as I seem to have thought in April last, or whether, according to the opinion of my brethren, they came into effect immediately on the passage of the act, is of little weight on the question now before us, which is, n6t simply when these powers began, but what was the extent thereof, when they went into effect. These powers were, in the opinion of the court, co- 526 Penn District Election Case. (Division of election district.) extensive with those of any other election officers of the commonwealth. The question before us, it will be remembered, is a simple one of the true meaning of an act of assembly, and nothing more; every other matter agitated on the argument is foreign to the subject ; our duty and authority has this extent and no more ; and we have exercised it, after fully and carefully considering the subject in every point of view in which it has been presented, or in which we have been able to regard it. Being of opinion, that these nominated officers possess all the legal characteristics of other inspectors and judges of election, of course, they have the same legal disabilities ; and if they, or any of them, have taken upon themselves functions incompatible with the office of judge or inspector, the remaining officers must fill the vacancy according to law. In Pennsylvania, by the act of 20th April 1854, the courts of quarter sessions have power to divide boroughs, wards and townships into elec- tion districts, to alter the bounds of election districts, and to fbnn new districts out of parts of adjoining townships. Where commissioners report, under this act, in favor of dividing an election district, the ques- tion of division must be submitted to a vote of the electors, the result of which is conclusive, and takes away all power of the court over the report. Kugler's Appeal, 55 Penn. St. R. 133. Wherever a new divi- sion is formed entirely out of an old one, the officers elected are required by the act of 28th April 1857, to appoint election oflScers for the new division. Gibbons v. Sheppard, 2 Brewst. 2, 56. This act, of course, has provided for the difficulty that occurred in the principal case, but the point there decided is an importalnt one, and of more than mere local interest. In New York, it has been determined, that the legisla- ture cannot, constitutionally, change the boundaries of a city or town, so as to alter an assembly district, Kinne o. City of Syracuse, 3 Keyes 110. 527 Stevenson v. Lawrence. In the Court of Common Pleas of Philadelphia. JUNE TERM 1862. /- (Ebpoeted 1 Brewster 131.) [^Decision at the next term.'] A statutory provision requiring the court to hear and determine a case of contested election "at the next term," is merely directory ; the juris- diction does not fall with the expiration of the term. Motion to dismiss the complaint, on the ground that the time prescribed by the statute for hearing and dis- posing of the same had elapsed. Cassidy and Hirst, for the motion. Conarroe and F. C. Brewster, contr^. Allison, J., delivered the opinion of the court. When this case was last before the court, it was upon a motion to dismiss the petition of the contestants, and that the court, do not proceed further with the cause. Upon this motion, the court, as then constituted, divided in opinion, my brother Ludlow being in favor of the motion, and my brother Thompson against it, the former holding that the jurisdiction of the court over the case was at an end, expressing at the same time his Villiligness to hear the evidence, reserving the question of jurisdiction; Judge Thompson holding, on the other hand, that the case was not out of court, but before them for further investigation and final determination. Upon this state of facts, the court being unable to proceed, on the invitation of my brethren, I have come into this case, upon the question as stated to me, "what entry should be made upon the 528 Stevenson v. Lawrence. (Decision at the next term.) record where the court is equally divided in opinion on a question' of jurisdiction?" The precise point raised by the question was, however, abandoned practically by the counsel on both sides; and the question considered by them, and to which the attention of the court was mainly directed, was, what is the true and proper construction of the 5th section of the act of 2d July 1839, providing for the election of prothonotaries, &c., under which law the petition of William C. Stevenson was filed in this court? The difficulty which has arisen in the cause is, as to the true intent and meaning of the clause of t,he said section which says, " and the court shall hear and determine such contested election at the next term after the election shall have been held." It is contended, that this is imperative upon the court, and that if the election contested shall not have been determined before the expiration of the next term, the case falls for want of further jurisdiction. In the construction of statutes, affirmative words enjoining the performance of an act by a public officer, are generally regarded as directory only ; negative words make a statute imperative, and it is apprehended, affirmative may, if they are absolute, explicit and peremptory, and show that no dis- cretion is intended to be given. Dwarris on Statutes 175. If, to the clause under consideration, the words " and not after," had been added, we would have a perfect illustrar tion of the principle stated; these words of negation would convert that which, in its ordinary signification, is but directory, into a command, taking from the court all discretionary power, by the use of language imperative and compulsory. It would require the clearest possible case, where the language used was affirmative only, under the well-settled rules of interpretation of statutes, to jus- tify a court in holding such language to be imperative ; in the words of Dwarris, just cited, it must be absolute, explicit and peremptory. In the act now before us, the dis- tinction is clearly taken by the legislature (no better illus- tration could be cited), where it says, " and such complaint Stevenson v. Lawrence. 529 (Decision at the next term.) shall not be valid, or regarded by the court, unless the same shall have been filed in the prothonotary's office, within ten days after the election." Here is a clear limita- tion upon the power of the court ; the language employed leaves no door open for question or doubt ; " shall not be valid or regarded by the court," has but one signification ; it negatives the power to take action on the complaint, by the use of language absolute, explicit and peremptory, unless the condition precedent has been complied with. In the case of People v. Cook, 14 Barb. 293, the prin- ciple is stated thus : statutes directing a mode of proceed- ing of public officers are regarded as directory, unless there is something in the statute which shows a different intent : so also, in People v. Allen, 6 "Wend. 486. 'A sta- tute which requires a public, officer to perform an official act respecting the rights and duties of others, is directory merely, unless the nature of the act to be performed, or the language used by the legislature, shows that the desig- nation of the time was intended as a limitation of the power of the officer. Lord Mansfield, in Eex v. Lox- dale, 1 Burr. 447, says, "there is a known distinction between things required to be done by act of parliament, and clauses merely directory ;" in Rex v. Sparrow, 2 Str. 1123, the appointment of overseers was held to be valid, though made after the time designated in the act; the statute 54 Geo. III. prescribed the times of holding courts of quarter sessions ; it was decided that quarter sessions held at other times were always considered good ; so also, the statute of 43 Eliz. directed apprentices to be bound out until 24 years of age, yet a binding, under the statute, until 21, was held to be good. Under our election laws, the ruling has been frequent and uniform, in this and other courts, that numerous requirements of the law, enjoining upon election officers the performance of specific acts, when not coupled with a question of fraud, are regarded as directory merely, and not to vitiate the election when 34 530 Stevenson v. Lawrence, (Decision at the next term.) omitted to be done, or when the act itself is imperfectly- performed or performed out of time. The third section of our habeas corpus act provides that if any person committed for treason or felony shall not be indicted and tried in the next term after such commitment, it shall be lawful for the judges or justices, and they are therebyrequired, to set at liberty such person, on bail. The language here used is imperative, "and they are hereby required ;" 'yet, it was held, in Com- monwealth V. The Jailer, 7 "Watts 366, that a person laboring under an infectious disease was not entitled, of right, under this section, to be tried at the next term ; other exceptions are recognised in 16 S. & E. 304; 2 "WTiart. 501 ; and 1 Dall. 9. The eighth section of the same act imposes upon any judge or justice who shall, on appli- cation, refuse or neglect to award a writ of habeas corpus, a penalty of £300; yet, the supreme court, in Ex parte Lawrence, 5 Binn. 304, the case of Passmore "Williamson, 26 Penn. St. E. 9, and the more recent case of "Williamson V. Lewis, 39 Penn. St. E. 9, construed this section to mean, that judges were not bound, on every complaint of illegal restraint of liberty, to allow the writ. These latter in- stances of the construction which has been given to statutes, are strongly in point, for they are statutes in favor of the liberty of the citizen ; in one, the language is that of command, and in the other, a penalty is imposed for a refusal to obey the requirements of the law. Upon the argument, our own statutes, relating to writs of quo warranto and certiorari were cited in support of the view taken by the contestant. The same language, in substance, is used, as in the act under consideration; "and the court shall, at the term to which the pro- ceedings of the justices of the peace are returnable in pursuance of writs of certiorari, determine and decide thereon." The practical construction given to these acts, by this and other courts, has not limited the power of the court to the term to which these writs are made return- Stevenson v. Lawrence. 531 (Decision at the next term. ) able ; it is, however, but due to the cause, to say, that no reported case was cited in which the question had been considered and decided. These authorities, to my mind, settle clearly the point, that the language employed in the act of 2d July 1839, requiring the cause to be decided at the next term, is but directory, and ought to be so re- garded, unless there be something in the statute which shows a different intent, and would therefore require us to give it a different construction. The first element to be extracted from this or any other statute, in our search after its true signification, is to ascertain, if we can, its spirit and intent. The object to be obtained is, to enable the court of common pleas to inquire, determine and judge of an undue election or re- turn, upon the complaint of thirty or more qualified elec- tors; the court are enjoined, in judging concerning said election, to proceed upon the merits, and determine upon the same, according to the laws of this commonwealth ; then follows the clause upon which the court differed in opinion,* " and the said court shall hear and determine such contested election, at the next term after the election shall have been held." The design of the law is, to secure an investigation of a matter in which the citizens generally, and the candidate claiming title to the office by election,, are deeply interested. Questions are involved in such an issue, of the gravest importance, affecting alike the highest principles of honesty and fair-dealing between man and man, the purity of the ballot-box, and the vindication of the elective right of the citizens of the commonwealth ; to guard these rights, each of them sacred and worthy of legislative protection, the court are enjoined to investigate the merits of the case, and finally determine the same according to law. This, I hold, is the material intent of the legislature, to be secured only by a final determination * The court divided politically; the judge coincided in opinion with his political associate ; and the point was affirmed in the supreme court by a political majority of the same views. 532 Stevenson v. Lawrence. (Decision at the next term.) of tHe case in court ; but inasmuch as they directed that a commission should not issue, upon a contest being certi- fied to the governor, until the court should have determined and adjudged on the complaint filed, they directed the court to hear and determine the same at the next term. But suppose, as in this case, the court, for good and sufficient reasons, do not or cannot hear and determine the complaint within the time designated--what then? Is the law, as to the case already in progress before the proper tribunal, to be regarded as a dead letter? Are the citizens and contestants alike to be turned away, and told that the stroke of the clock has paralyzed the arm of the court, and that they must go without remedy for an alleged violation of public and private rights, because that which was not of the essence of the thing to be done has not been complied with by the officer of the law, either with or without cause ? I think not ; I can gather no such meaning from the act, and can regard the command as to time only in the light of an injunction to the judges to speed the cause, and at the next term, if possible, fulfil the material requirements of the law, by finally determining the case upon its merits. Any other view, it seems to me, reverses the natural order of things, prefers the unim- portant to the material, gives to the minor consideration, namely, the time within which a decision is to be ren- dered, precedence of the more substantial and weighty matters of the law, under consideration ; for certainly, it is far more essential that the court shall decide the main question, than allow it to fall dead before the judges, who are enjoined to decide upon it finally and upon its merits, by language quite as explicit as that used to indi- cate the time within which it ought to be determined. Carpenter's Case (14 Penn. St. R. 486) seems to have been relied on in support of a contrary view, but that case decides nothing more than that the supreme court had no revisory power, by certiorari, of proceedings under the act of 2d July 1839, and that the decision of the common pleas Stevenson v. La-^eencb. 533 (Decision at the next term.) was final ; all that Judge Gribson says in that case is by- way of argument in support of this proposition, and in my opinion does not apply to the question now before the court ; nor does the point appear to have been even inci- dentally raised in the court above, unless the mere citation of the words of the law by the chief justice, in support of a totally different principle, are capable of such construc- tion and application, which I think they are not. I am, , for the reason stated, of the opinion that the case of the contestant is still in court for determination and final' judgment on the merits. Upon the question as to the proper entry to be made upon the record, where the court is equally divided on the question of jurisdiction, I do not deem it necessary to say more than that the case of Bingham v. Cabbot, 3 Dall. 18, cited upon the argument, by the counsel for the respon- dent, is to be regarded only as if a motion for a venire de novo had been made, which motion fell, because the court was equally divided upon the question as to whether the court below had jurisdiction of the original cause of action, Ludlow, J,, dissented. The point decided in this case was affinned by a majority of the supreme court (Thompson, C. J., and Sharswood, J., dissenting), in Donegal! ». Fletcher, 65 Penn. St. R. 31, -where it -vras held that this provision of the law was merely directory; the dissenting judges, how- ever, held that if the term expire without a determination of the contest, the proceedings fall as effectually as if the court itself had ceased to exist. Ibid. 47. 534 Mank v. Cassidt. In the Court of Quarter Sessions of Philadelphia. MARCH SESSIONS 1857. (Eepoktbd 1 Beewstee 43.) [^Discontinuance.^ The contestant in a controverted election case, has no .power to discon- tinue the proceeding; the question is one between the public and the incumbent of the office. This was a petition by upwards of twenty qualified electors of the city of Philadelphia, contesting the election of Lewis 0. Cassidy to the office of district-attorney of the county of Philadelphia, and alleging that William B. Mann had been duly elected to the said office. During the course of the proceedings, the legislature created an additional district-attorney for the said county, and Wil- liam B. Mann having been appointed to that office, his counsel moved for leave to discontinue this proceeding. Thompson, P. J., delivered the opinion of the court. The only question presented by the counsel of the respon- dent, upon his last argument addressed to the court, was, whether Mr. Mann, as the " next highest candidate" to the party returned, or his counsel, has the right, at the present stage of the proceeding, to terminate the case, by entering a discontinuance. We entertain strong doubts whether, in a proceeding like this, which is not a suit inter partes, the common-law form of discontinuance, which a plaintiff alone can employ, is at all applicable. The proceeding is not a suit at law; the party receiving the next highest number of votes is not made a plaintiff'; he is not liable to the costs of the pro- ceeding, nor is he compelled to take any part in the inves- Mann v. Cassidt. 535 (Discontinuance. ) tigation ; lie comes in voluntarily, and may so depart when he pleases ; the complaint is not made by him ; his act has not subjected the county to the costs of the investigation, nor, however frivolous the complaint made, can he be ren- dered responsible, by the imposition of costs, or otherwise ; he acts with entire freedom, and the position of a party in the trial, which the 150th section of the act of 1839 gives to him, imposes no duties upon him, not even that of becoming a party, as the same section provides for the introduction of another, as a party, in case of his absence or neglect. If he may discontinue the proceeding, he may do so at any stage of the investigation ; but the law con- templates no such termination, as the 157th section of the same act gives the judges authority to certify that the complaint was without probable cause, and in such cases, imposes the costs upon the petitioners ; this indicates an intention that the complaint shall be investigated, and imposes upon the judges the duty of so doing. If, with- out investigation, the case may, at any time, be stopped, by a discontinuance, what protection is there against causeless complaints, by which the party returned may be annoyed and put to heavy charges, the public business of the courts interfered with, and the citizens of the county subjected to the costs? Nor does the analogous proceeding before a committee of the legislature point to this as the method of termi- nating the investigation. The oath administered to the members of such a committee is, "to try the matter of the petition, and to give a true judgment thereon, accord- ing to the evidence, unless the committee shall be dis- solved." This seems to leave no option to the committee to discontinue the trial, whenever the candidate next high- est in vote may desire it ; he cannot thereby dissolve the committee; nor does such power vest in the committee itself; the body creating the committee would seem to possess the only power to dissolve it. "We know not what practice may prevail in such investigations by com- 536 Mann v. Cassidt. (Discontinuance. ) mittees of the legislature, but it is evident, from the care which is manifested, in the provision for a full and fair trial, that such cases are to be regarded as important public matters, not to be commenced or terminated at the mere option of the individuals concerned in their re- sults. The mere suggestion that, in any case, however undue the election or false the return, the candidate next highest in vote, who has come in as a party, may, for a consideration, be induced to enter a discontinuance, seems to demonstrate that such authority was not designed to be vested in him. The case is not his alone ; public in- terests may require the investigation, though he decline to take further part in it. For these and many other reasons, which readily suggest themselves, we are strongly inclined to doubt the propriety, under any circumstances, of this method of terminating an investigation like the present. But we are in no doubt as to the impropriety of recog- nising the discontinuance offered, as the case now stands. Mr. Mann became a party to this proceeding ; he under- took to prove that great frauds had been perpetrated at the October election, and the language used by his coun- sel, Mr. Read, is, that "the whole evidence exhibits the most palpable frauds on the ballot-box."* He claims thus to have established much that he alleged to exist ; and yet, because by an act of assembly, which his counsel declares has given him all he claimed, he is relieved from any further personal interest in the case, and has publicly withdrawn from it, it is asserted, that by his simple " dis- continuance," he can relieve the court from all further duty of determining whether those most palpaile frauds have had any effect on the validity of the election. Cer- tainly, none would more truly rejoice to be relieved from the further consideration of this case, than the court be- * After the delivery of this opinion, Mr. John M. Read, the counsel for Mr. Mann, stated that his client wished the proceeding to terminate, and retired from the case. Mann v. Cassidy. 537 (Discontinuance. ) fore whom it has " dragged its slow length along ;" but that relief can only be obtained by a conscientious dis- charge of the duty imposed upon us, not by avoiding it. If frauds have been proved, how can we omit to examine into their effect? Why was the court applied to? IS'ot, certainly, to ascertain only Mr. Mann's right to the office, for which Mr. Cassidy held the return ; for that purpose, the law has provided a writ of quo warranto. This is not such a proceeding ; the question here is, not between two individuals only, but it is, whether the voice of the people has been falsely and fraudulently misrepresented ; it is a public question, not, as the counsel of Mr. Mann stated they considered it, that, of a private individual contesting the seat for a public office. While, then, we cannot pre- vent the party who is satisfied, from leaving the case, we cannot recognise any right or power remaining in him, after his departure, to further interfere in the case; he came in voluntarily, and he departs without hindrance ; we think his power over the case departed with him. The discontinuance, therefore, cannot be recognised. Discontinuance disallowed. The principle of this case was recognised by the supreme court of California, in People v. Holden, 28 Gal. 139 (ante 491), where the court said, "theoretically the people alone are interested in the determination of the controversy involved in this case, and no court would be justified in enforcing, as against them, a stipulation made by the relator or his counsel, to their prejudice ; the action is, in no legal sense, under the control of the relator ; it was brought in the name of the people, and to enforce their will as expressed through the ballot-box, and not merely to redress the wrongs or enforce the rights of the relator." In the case of the Clinton County Election, it was ruled by Judge Woodward, that it is not in the power of a portion of the petitioners, in a contested elec- tion case, by withdrawing from the contest, to prevent an inquiry into the fairness of the election ; 3 Penn. L. J. 166 ; and this was recognised as law in Kneass's Case, 2 Pars. 570. So, in Collings's Case, 3 Luzerne 538 Gibbons v. Shbppard. (Appellate jurisdiction.) Leg. Obs. 57 (ante 513), it was said by Conyngham, J., that the petition "is not regarded as the complaint of the candidate ; he cannot be per- mitted to withdraw it, nor in any way control it ; if the alleged fraud, upon being proved, would apparently change the result of the election, unless the people, represented by the petitioners, agree to it, an arrange- ment made between the different candidates could not be used to defeat the contest ; it may be abandoned and withdrawn, if no one will come forward to prosecute it, but the candidate cannot so control it; it is not the right of the individual alone, who may be interested in the office, to defeat or set aside a fraudulent election ; in him there may be a personal or pecuniary interest, but with the people there remains a public or moral right to act." Gibbons v. Sheppaed. In the Supreme Court of Pennsylvania. JANUARY TEEM 1870. (Reported 65 Pennsylvania State Reports 20.) [Appellate jurisdiction.'] The supreme court has jurisdiction, on certiorari, to review the regu- larity of the proceedings of the court below, in a case of contested elec- tion, but not to rejudge the merits. Where a statute requires the contestants to swear that the facts set forth in their complaint are true, it is enough, that they aver that they are true "to the best of their knowledge and belief." The exercise of the power of amendment, in a contested election ease, being a matter of discretion, is not reviewable on certiorari. The refusal of the court Below to quash the petition is not ground of error ; so, a prayer in the petition to strike out certain returns, does not bring that question before the supreme court, the record not showing whether or not such returns were stricken out. Certiorari to thecourt of Quarter Sessions of Philadel- phia. These were petitions to the court of quarter ses- " sions and court of common pleas of Philadelphia county, contesting the election of Furman Sheppard to the office of district-attorney of said county, and of the other offi- Gibbons v. Sheppard. 539 (Appellate jurisdiction.) cers returned as elected at the general election teld on the second Tuesday of October 1868, and alleging that Charles Gibbons was duly elected district-attorney, &c. The court below decreed in favor of the contestants, whereupon the respondents sued out writs of certiorari, and removed the record to the supreme court. Phillips, Hirst and JBiddle, for the respondents. Sawki Mann and Meredith, for the contestants. Agnew, J., delivered the opinion of the court. These are important cases ; they are political controversies ; to be regretted, yet, for this reason, to be met in a spirit of candid inquiry. The contest of an election is a remedy given to the people, by petition for redress, when their suffrages have been thwarted by fraud or mistake; the constituted tribunal is the court of ^common pleas or the quarter sessions, as the case may be. By the acts of 2d July 1839 and 3d February 1854, the court is to "pro- ceed upon the merits of the complaint, and determine finally concerning the same, according to the laws of this commonwealth," l^o bill of exceptions is given to its decisions nor appeal allowed, and its decisions are final ; consequently, the supreme court has no jurisdiction over the subject. The attempt to press into service the act of 1867 (Purd. Dig. 1496), as giving an appeal, lacked the earnestness of conviction, and needs ho refutation ; it gives no appeal, while the appeal given on the receiver's account, excludes the presumption that any other appeal was intended ; the finality of the acts of 1839 and 1854 remains, and there is no implication of an appeal, for there is no incongruity in this respect. It is only in case of a strong repugnancy, that a former law is repealed by a subsequent act. Street V. Commonwealth, 6 W. & 8. 209 ; Bank v. Commonwealtli, 540 Gibbons v. Shbppard. (Appellate jurisdiction.) 10 Penn. St. R. 448 ; Brown v. County Commissioners, 21 Ibid. 37. "Why, then, have the merits been so strongly urged? "Why have the cases been termed appeals, and the parties appellants and appellees? Ifothing but confusion can flow from these designations. The certiorari is a well- known writ, bringing up the record only ; the parties are plaintiffs and defendants in error, and not appellants and appellees ; the argument on the facts was, therefore, out- side the record. That the merits belong exclusively to the court below, and cannot be reviewed here, is a settled question ; Carpenter's Case, 14 Penn. St. E. 486 ; the court there quashed the certiorari, Gibson, C. J., saying, that "having no appellate jurisdiction, it would not be respect- ful or proper to express an extra-judicial opinion on the regularity of the proceedings." In like manner, this court quashed the certiorari in Ewing v. Filley, 43 Penn. St. R. 384; "our duty," said Lowrie, C. J., "is a very re- stricted one ; for, as is admitted, we cannot re-try the case on the evidence, but can only consider whether it was tried before competent authority and in proper form." This is very plainly stated by "Woodward, J., in Chase v. Miller, 41 Penn. St. R. 412-13 (a contested election case); after explaining our general power of review, he says, " but this statement is to be received with a very impor- tant qualification, that the errors to be reviewed shall appear on the record; this is necessary to all appellate jurisdiction, where cases come up by writs of error or certiorari; the only mode provided by law for bringing evidence, or the opinion of an inferior court, upon what is technically called the record, is by a bill of exceptions, sealed and certified by the judges, and as bills of excep- tion are not allowed in the quarter sessions, no question which arises out of the evidence in that court, can be got up into this court ; hence, while certiorari lies to the pro- ceedings of the quarter sessions in road cases, in pauper cases, in contested election cases, and in other statutory Gibbons v. Shbppard. 541 (Appellate jurisdiction. ) causes committed to the jurisdiction of that court, the writ brings up nothing but what appears on the record, without a bill of exceptions." That neither the testimony nor the opinion of the court is brought up with the record, by a certiorari, has been reiterated over and over again. I refer to a few of the recent cases, to show that we have not departed from the doctrine of our predecessors : Commonwealth v. Gurley, 45 Penn. St. R. 392, opinion per Thompson, J. ; Church Street, 54 Ibid. 353 (road case), per Thompson, J. ; Oakland Railway Co. v. Keenan, 56 Ibid. 198 (justice and jury on sheriff's sale), per Woodward, C. J. ; Plunkett's Creek v. Fairfield, 58 Ibid. 209 (pauper case), per Strong, J. In Pennsylvania Railroad Co. v. German Lutheran Congregar tion, 53 Penn. St. R. 445, a strong effort was made to get before us the merits of a view and assessment by a rail- road jury, and the subject was again examined elaborately and the same conclusion reached. The strenuous effort to induce us to review the testimony, calculations and opinion of the court in these cases was, therefore, contrary to the settled law of the writ of certiorari; this excludes from our consideration the report of the examiner, all the calculations, and all the court did either by striking out or purging polls ; they are not in the record, and all assignments of error founded on them fall. Putting aside, then, these lures to error, the remaining assignments may be treated under three heads: those affecting jurisdiction; those relating to the procedure of the court ; and those relating to the frame of the com- plaint. The first, involving the jurisdiction, is the oath to the petition ; this concerns the city officers only. The act of 1854 requires that " at least two of the complainants shall take and subscribe an oath or affirmation, that the facts set forth in such complaint are true;" the oath to the petitions reads " that the facts are true, to the best of their knowledge and belief." This addition, it is asserted, lessens the strength of the oath ; that the law requires the 542 Gibbons v. Sheppard. (Appellate jurisdiction.) absolute truth of the facts to be sworn to, and not the best knowledge and belief of the affiants. Does the law mean absolute verity? this is the question. The intention of the lawgivers must be discovered not only from the words, but from the object of the law, the special purpose of the oath, the nature of its subject, and the character and jurisdiction of the tribunal. The object of the law is to give the people a remedy ; it is their appeal from the election board to the court, from ' an undue election or false return; the law is, therefore, remedial and to be construed to advance the remedy. The special purpose of the oath is to initiate this remedy, to give it the impress of good faith and probable cause ; the proof of the facts must follow, not precede the complaint ; it is contrary to our sense of justice, and to all analogy, to say, that a remedy shall not begin till the case has been fully proved. The law being remedial, and the oath initial only, it is not to be supposed, the legislature, representing the people, intended to subject the remedy to unreasonable or impos- sible conditions ; the remedy would be worthless and the legislature stultified ; correct interpretation will shun this result. This brings us to the subject of the oath; in a city of 800,000 inhabitants, embracing a surface of many square miles, no two nor two hundred men can be invested with the ubiquity and the omniscience to see and to know all the facts, in every precinct, necessary to contest the whole poll of the city ; nay, they coiild not, from personal knowledge, contest the poll 'of a single ward. Besides, there are essential facts which they cannot know person- ally ; they cannot pry into the ballots ; they may believe, or may be credibly informed, that 153 unqualified persons voted a certain ticket, but they cannot know it ; yet this knowledge is essential to the contest. Their knowledge, to be personal, must be as ubiquitous as the fraud, and as thorough as the whole number of voters, their residences, qualifications and ballots, and comprehend all the unlawful Gibbons v. Sheppabd. 643 (Appellate jurisdiction.) acts of every election board. In this instance, 120,000 votes were polled in 266 precincts ; now, it is simply im- possible that two, nay, all the fifty petitioners, could per- sonally know the facts necessary to contest the poll of the entire city. The legislature did not mean this vain thing ; lex non intendit aliquid impossibile; lex nil facit frustra — nil ' juhet frustra. It is the duty o^a court to construe a statute, if possible, ut res magisvaleat quam pereat. Huber v. Reily, 53 Penn. St. R. 115, 117. These principles have been stated with much force, and with reference to the highest au- thority, in Schuylkill Navigation Co. v. Loose, 19 Penn. St. R. 18-19. The case comes then to this point ; the oath must be made from credible information, or not at all ; in the poll of such a city, the affiant cannot swear to more than to the best of his knowledge and belief; it would be an imputation on the framers of the law to think otherwise. The argument that no indictment would lie for perjury upon this form of oath, is fallacious; if the oath mean an oath in this form, then the oath in that form is an oath authorized by law, and an indictment for its corrupt and wilful breach will lie. We must consider also the tribunal to hear and decide on the petition. It is a high constitutional court, compe- tent to decide on its own jurisdiction; its jurisdiction being exclusive and final, it necessarily decides it for itself. There was no omission of anything to confer jurisdiction ; the petition came from the requisite number of qualified voters, was presented in due time, and its truth was sworn to by two of their number ; the court having a rightful and general jurisdiction over the subject of the petition, assumed it, heard the proofs, found the facts alleged to be actually true, and set aside the return as false. N"ow, after a decision on the merits, which have been established on sufficient evidence, can we oust the jurisdiction, for an alleged error in the interpretation given to the language of the oath ? This would be dangerous ground to take. The law does not prescribe the form of the oath; it cer- 544 Gibbons v. Sheppard. (Appellate jurisdiction. ; tainly was for the court, in judging of its own jurisdic- tion, to interpret the words of the affidavit; it did so, heard the case, found the facts to be true, and decided on the merits. See Carpenter's Case, 14 Penn. St. R. 486; Overseers of Tioga v. Overseers of Lawrence, 2 Watts 43 ; Plunkett's Creek Township v. Fairfield Township, 58 Penn. St. E. 209. The question as to the power of the city recorder to administer the oath, stands on the same footing ; it was a question which the court below necessarily decided for itself. There was an oath actually taken and certified; the officer certifying it had power to administer oaths ; his commission was conferred by the governor, by and with the consent of the senate, for a term of years and during good behavior ; his character is also recognised as magis- terial. Rhodes v. Commonwealth, 15 Penn. St. R. 277. By the act of 1817, he has authority to take proof of deeds and other writings, and to issue writs of hqbeas corpus and give relief thereon, as fully as the president of the common pleas ; these powers imply his authority to administer oaths, without which he could not swear the witnesses. The act of 31st March 1860, punishes perjury committed upon an oath taken before the recorder, class- ing it with oaths taken before any judge, justice, alderman, &c., before whom oaths may be taken. The court of common pleas had decided also, that he had the authority to administer oaths. Schuman v. Schuman, 6 Phila. 318. Thus, being a commissioned officer, and having power to administer oaths, by his certificate of probate to the peti- tion, he asserted his authority to administer that oath; primd facie, therefore, the oath was regularly made and being accepted, was before the court. The court having a general and rightful jurisdiction over the subject of the petition, assumed it, and in so doing, decided the affidavit to be sufficient ; it is not the case of the absence of any affidavit, but is the case of an affidavit primd facie regularly made. !N"ow, after having jjossession of the case in a manner clearly legal and regular. Gibbons v. Sheppakd. 545 (Appellate jurisdiction.) at least, to a primd facie extent, and after having heard the case on its merits, and found the truth of all the facts necessary to a case on the merits, how can we go behind the certificate of the recorder, to inquire whether his con- ceded authority to administer oaths extends to this pro- ceeding? The oath was only necessary to initiate the proceeding, which has now been proved, by sufficient evi- dence, to be well-founded and true ; if we can go behind his certificate, after a decision on the merits, no proceeding is safe ; we may as well inquire whether all the petitioners were qualified voters, and if we find one disqualified by non-residence, non-payment of taxes, or a defect in his naturalization certificate, set aside the whole proceedings. This would be a dangerous doctrine, and opposed to the principles decided in the cases just referred.to. The correctness of the oath in these cases is supported by that required to contest the election of the governor, members of assembly, judges, county officers, &c., to wit, that the "facts stated in this petition are true, to the best of their knowledge and belief." It cannot be supposed, the legislature meant to exact severer terms in order to con- test an election of city officers ; indeed, to require an im- possible condition. But analogies are appealed to ; it has been decided, that an appellant from an award must swear that he firmly believes injustice has been done, and less will not suffice ; this is true, but the difierence lies between knowledge and belief; it is not unjust to require of a suitor, knowing his own case, a firm belief of injustice; on the other hand, suppose we were asked to say, that the appel- lant must swear to the absolute truth of injustice, and thus compel an ignorant man to swear to the law as well as the facts? This would be unreasonable; and it is quite as unreasonable to ask a man who cannot know all the facts, to swear absolutely to the illegality of voters, for whom they voted, the law of residence, of suffrage, and of the duties of election officers, and all else that is neces- sary to actual knowledge of an undue election. 35 546 Gibbons v. Sheppaed, (Appellate jurisdiction. ) Nor is the argument good, that the act of 1806 requires the direction of the act of 1854 to be strictly pursued. Before a statute can be pursued, we must know what it requires ; if the law require personal knowledge, the oath must be so ; but this is the very question to be decided, and it is illogical to tell us it means personal knowledge, because it must be strictly pursued. "What does the act of 1854 require? personal knowledge of every fact averred, or only knowledge to the best of reliable information and belief? If personal knowledge be not required, that ends the question ; and all the numerous authorities cited, to show how strictly a statute • must be pursued, are inappli- cable. ITor can the petition be likened to a response in chan- cery ; it is not a proceeding to compel a discovery of facts known to the party, but is simply a complaint to initiate an inquiry in good faith. Its foundation can be reliable information only, and therefore, not absolutely, but credi- bly true. In conclusion, on this, the only serious question, we have ample authority so to construe the act. " As to the construction of statutes, it is certain, that they are not always to be construed according to the letter." Bank of North America v. Fitzsimons, 3 Binn. 356. "Acts that give a remedy for a wrong, are to be taken equitably, and the words shall be extended or restrained according to reason and justice, and according to their end, though the words be short or imperfect." Schuylkill Navigation Co. V. Loose, 19 Penn. St. E. 18; citing 2 Inst. 152, 249, 395, 572, and Hob. 157, 299. The word "void" has been held to mean " voidable ;" Braddee v. Brownfield, 2 W. & S. 280; "or" to mean "on;" Levering v. Railroad Co., 8 W. & S. 463; "or" has also been held to mean "and;" Foster v. Commonwealth, Ibid. 79-80. "Was the jurisdiction lost by the expiration of the term, in the case of the prothonotary? In this respect the law is directory only; the act to be done is judicial, and not ministerial. The court cannot "proceed on the merits" Gibbons v. Sheppabd. 547 (Appellate jurisdiction.) of the contest, without time to take the testimony, and to hear and decide; if the testimony he voluminous, as it must be to correct so large a poll, the merits cannot be reached without time, nor can the merits be reached, if delayed, as here, by dilatory motions. It would be a harsh construction, to defeat its own purpose, by requiring an impossibility of the court; analogies are against it. Commonwealth v. Sheriflf, 16 8. & R. 304; Ex parte "Wal- ton, 2 Whart. 501 ; Commonwealth v. Jailer, 7 Watts 366,; Clark V. Commonwealth, 29 Penn. St. E. 129. In these cases, a similar limitation was held not to oust the juris- diction of the court, and it was said, " there is no doubt that necessity, either moral or physical, may raise an available exception to the statute." The act of 1810 re- quires certiorari^ to justices of the peace to be decided "at the term to which the proceedings are returnable ;" yet, what lawyer ever heard that a certiorari fell with the ex- piration of the term? It would be a mockery of justice, were the people to be told, when seeking redress against dishonest servants, that the voice of the judge is silenced in the midst of his sentence, or the uplifted arm of the law struck down, by the stroke of the clock ; the matter has been well stated by Allison, J., in Stevenson v. Law- rence, 1 Brewst. 184-5 (ante 532). The next head is the alleged errors of procedure, The power of the quarter sessions to appoint an examiner is questioned; this affects the case of the district-attorney only. The constitution and power of the court of quarter sessions, under the organizing act of 16th June 1836, leave no doubt of its power to take depositions, and consequently, to appoint examiners for this purpose ; this is the practice in road and pauper cases. The quarter sessions is classed with the other courts, in this act, in respect to many of its powers ; and the 21st section enacts that " each of the said courts shall have full power and authority to establish such rules for regulating the practice thereof, and for expediting the determination of writs, causes and proceed- 548 Gibbons v. Sheppaed. (Appellate jurisdiction.) ings therein, as, in their discretion, they shall judge necessary or proper, provided that such rules shall not be inconsistent with the constitution and laws of this commonwealth." This, being an enabling act, is to be liberally construed; the power to establish rules for all cases, embraces the power to make a rule in a particular case ; omne majus continet in se minus. The next error of proceeding alleged, is the allowance of the amendment in the cases of the district-attorney and prothonotary ; this was not error, but fell within the sound discretion of the court. The grounds of allowance are not in the record, and cannot be reviewed by us ; the amendment was not of an omitted prerequisite to confer jurisdiction, nor of a matter essential to the frame of the petition, but was a mere specification of a fact compre- hended within the general terms of the complaint, and belonging only to the proof. The miscount of 40 votes for Sheppard which belonged to Gibbons, occurred at the same election, entered into the same general returns and affected the result ; the matter pertained to the same case and was necessary to determine it " on its merits."* The power of amendment exists at common law, falls within the discre- tion of the court and cannot be reviewed ; to the numerous authorities cited by the defendant in error, we may add Grove's Appeal, 37 Penn. St. R. 443 ; Cambria Iron Co. v. Tomb, 48 Ibid. 388; Keen v. Hopkins, Ibid. 445; Boyd v. Negley, 40 Ibid. 377 ; s. c. 53 Ibid. 387 ; Pennsylvania Eail- road Co. v. German Lutheran Congregation, Ibid. 445. And in point of reason, why should the court not have power to amend in a contested election case? it is a judicial remedy, and concerns important rights. On what ground should the cause of the people be held so strictly, that a mere specifi- cation of facts, within the same general complaint, relating * The amendment in this case was suggested by the court and allowed, after the testimony had been closed, the case fully argued, and the couit bad delivered its opinion upon the merits ! This amendment entirely •changed the result. Q-iBBONS V. Sheppakd. 549 (Appellate jurisdiction. ) to the same contest and the same results, should not be allowed, in order to reach the very " merits" the court is ordered to try. It does not appear from the record, that the matter was illegal, or was objected to, or that surprise was alleged, or that it was matter not developed in the testimony.* The right of a court to make an order, necessary to the justice of the case, nunc pro tunc, cannot be questioned ; in Fitzgerald v. Stewart, 53 Penn. St. R. 343, a power was supported, to enter judgment, nunc fro tunc, six months after verdict, in an action of slander, to prevent an abatement of the suit by the death of the plaintiff, and after motion for a new trial, in arrest of judgment, and to abate the writ; in Slicer v. Bank of Pittsburgh, 16 How. 571-9, a judgment, nunc pro tunc, was entered in 1836, to support a sheriff's sale made in 1820, and was sustained upon numerous authorities. The last head is that concerning the frame of the com- plaint. The refusal of the court to quash the petition is not a ground of error; their jurisdiction is entire and exclusive, and a motion to quash is a matter of discre- tion. Respublica v. Cleaver, 4 Yeates 69. In this court, there can be but one inquiry, whether the petition be suf- ficient in its frame, and set forth a proper ground of con- test? We shall do the plaintiffs in error full justice, in permitting the assignments of error to stand as an excep- tion to the sufficiency of the petition. Like an indict- ment, a bill in equity or a libel, when the record of it is before us, we can only inquire whether it sets forth a suf- ficient charge or complaint. The evidence in support of the charge is a different matter, and need not be set forth or specified ; the law does not demand it and no analogy justifies it. Indeed, the reverse is true, for the pourt is required to "proceed on the merits thereof," indicating thereby that the proceeding is not to be embarrassed by technicalities ; then why should an election petition have * How could it, when the testimony was not before the court? but it did appear, at what time it was allowed. 550 Gibbons v. Sheppard. (Appellate jurisdiction.) more precision than other complaints at law, civil or crim- inal? The remedy to set aside an undue or fraudulent election, is as important as remedies for other injuries ; if the life, liberty, property and happiness of the citizen de- niand certainty to a common intent only, why should a contested election require more? indeed, the nature of the subject demands even less. The innumerable frauds abounding in an election where 120,000 votes are polled, in 266 precincts, render a minute specification impossible within ten or twenty days ; the only safe course, in such a case, is, to proceed in analogy to the practice in other cases, by a notice of particulars, ordered and governed by the discretion of the court. It would be an intolerable technicality, if the petitioners were required to set forth in their complaint, within ten days after the election, every illegal vote, every illegal act of the election boards and every instance of fraud ; such a nicety would prevent investigation and defeat the remedy itself. The general rule in all pleadings is, that certainty to a common intent only is required. Heard's Steph. PI. 380. The early decisions in this city were too stringent.* A much truer exposition of the law, and one to be adhered to, is found in the opinion of the late Judge Thompson, in Mann v. Cassidy, 1 Brewst. 26-7 ; as remarked by him, " the rule must not be held so strictly as to afford protec- tion to fraud, by which the will of the people is set at naught, nor so loosely as to permit the acts of sworn offi- cers, chosen by the people, to be inquired into, without adequate and well-defined cause." We find many analo- gies to guide us. " The general rule in all indictments," says Sergeant, J., "is, that the charge must be positively averred; but in what cases it is, or is not, sufficiently * It must be borne in mind, that this decision was made by a bare majo- rity of the court ; and in testing the value of such a precedent, the relative ability of the dissenting judges is an important element of consideration. Chief Justice Thompson and Mr. Justice Sharswood dissented from the views of the majority. The principles here condemned are those of that eminent jurist Judge King. Gibbons v. Sheppard. 551 (Appellate juriscMction. ) averred, is not ascertained with precision, and must be left, in a great measure, to the legal discretion of the court; certainty to a common intent in general only is required, and not certainty in every particular." Sherban V. Commonwealth, 8 "Watts 212. Whether a bill of par- ticulars or specification of facts shall be required, is exclu- sively in the discretion of the presiding judge. Whart. Cr. L. § 291, citing Commonwealth v. Griles, 1 Gray 466 ; Regina V. Kendrick, 5 Ad, & Ellis 49 ; Eex v. Hamilton, 7 C. & P. 448 ; see also Commonwealth v. Hunt, 4 Met. 125. In a libel for divorce, it was held, that the proper practice is, to give notice that, between two specific dates, acts of cru- elty, &c., are intended to be proved. Steele v. Steele, 1 Dal. 409 ; see also Garrat v. Garrat, 4 Yeates 244. There are many cases, at common law and under statutes, where the description is general, and because of the mul- titude of particulars constituting the offence or complaint, the prosecutor may be required to give notice of the acts intended to be proved. Thus, in the case of a common barrator, 1 Russ. Cr. 185-6; 2 Hawk. P. C. c. 25, § 59; and disorderly-houses, houses of ill-fame, and gaming- houses, "WTaart. Cr. L. § 289; tippling-houses, Common- wealth V. Baird, 4 S. & R. 141 ; lottery tickets. Common- wealth V. Gillespie, 7 S. & R. 469 ; timber trees, Moyer v. Commonwealth, 7 Penn. St. R. 439. The court remarked, in the last case, that the legislature never intended that an indictment for cutting timber trees should be so special as to defeat the end proposed. "We may refer also to the case of Barker v. Commonwealth, 19 Penn. St. R. 412, for using vulgar and obscene language to crowds ; and Com- monwealth V. Mohn, 52 Ibid. 243, the case of a common scold; and see Edge v. Commonwealth, 7 Ibid. 277; and Commonwealth v. McKisson, 8 S. & E. 420. In view of this array of cases, affecting the highest absolute rights of individuals, it is impossible to afiirm Buch a stringent rule as we are asked to apply to contested election cases, or to say, that this petition is so fatally de- 552 Gibbons v. Shbppard. (Appellate jurisdiction.) fective in its frame that it should have been quashed on motion, or set aside on demurrer. It sets forth in be- fitting terms, the general election of 1868, the persons voted for, the number of votes returned for each, and the majority for the persons returned; charges an undue elec- tion and false return, alleges the election of the opponent, and sets forth the grounds of the illegality of the election. It charges that the officers of the election fraudulently conducted and carried on the election, with a wilful dis- regard of all the requirements of the law; and then specifies their various fraudulent acts, by means of which the fraud was perpetrated, and illegal votes sufiered to be cast for the persons returned. Here, I may notice in passing, the omission to set the letter V opposite the names of the electors who had voted ; this is specified in the petition as one of the fraudulent acts of the election officers, and not as a cause, in itself, sufficient to set aside the election. The petition then avers that all these acts were done and committed, with the intent and purpose of holding an undue election, and to prevent an honest ex- pression of the popular will, and a true ascertainment of the real votes of the qualified voters ; and that in pur- suance of this conduct, the popular will was not ascer- tained, but was defeated^ whereby the election was ren- dered false, fraudulent, undue and void, and the return void, and should therefore be disregarded. The petition does not close here, though much more descriptive and certain than most forms of indictment, petition and libel, but proceeds to specify the number of fraudulent votes received in the several divisions, describing them specially, numbering, in the aggregate, several thousands, and largely more than sufficient to overthrow the majority for the person returned as elected. Here is certainty, not only to a common, but to a very specific intent ; how can a pe- tition so specific in its charges, and minute in its specifi- cations, be decreed to be defective in its frame? Strong bias only can entertain a doubt of its sufficiency. Gibbons v. Sheppard. 553 (Appellate jurisdiction.) The argument, that the claim of the petition to have certain returns stricken out, makes it defective or un- sound, is wholly unfounded. If the facts set forth are sufficient, as we have seen they clearly are, the prayer to sly'ike out does not vitiate the charge of an undue election and false return ; that charge remains, especially in view of the concluding prayers of the petition, which are strictly correct and cover the entire ground of the case. The prayer to strike out is no part of the charge in the com- plaint ; the court may disregard it, if unfit, if too broad, if unsupported by evidence, when there are prayers suit- able to the case and covered by the evidence ; and we are bound to believe they did disregard it ; omnia prcesumuntur legitime facto, donee probetur in contrarium. The court hav- ing exclusive and final jurisdiction, we have no right to pre- sume that it abused its powers ; the evidence, calculations and opinion of the court, as we have seen, are not before us ; we cannot judicially know whether the court struck out divisions, or merely found frauds sufficient to change the result ; we know only the decree, and that is clearly right. The whole argument upon the power to strike out polls is outside of the record before us.* And even if it were conceded, that the prayer to strike out was a defect in itself, yet, the decree cannot be aflected by it. The presumption now is, that, if illegal, the court * It will be seen, that the court skilfully eiiaded the main question in the cause ; in point of fact, the court below did strike out the return of entire polls, as prayed in the petition. The effect of this was, to decide the cause in favor of the candidate attached to the same political party as the majority of the court, who was so clearly defeated at the polls, that the court below was compelled, on a rehearing, after the record was re- mitted, to declare his competitor duly elected. In his dissenting opinion, Chief Justice Thompson very forcibly argues, that the judgment of the court below must be presumed to have followed the allegata of the com- plaint ; that contained a prayer that, for certain violations of the law on the part of the election officers, certain entire polls might be stricken out from the general return ; and it is difficult to see the force of the learned judge's argument that there was nothing before the supreme court to show whether the court below had done so or not. See 1 Brewst. 196. 554 Gibbons v. Sheppard. (Appellate jurisdiction.) disregarded it; this is supported by authority; thus, in Hazen v. Commonwealth, 23 Penn. St. R. 355, this court held, upon an indictment of eleven counts, where, after a motion to quash was refused, a general verdict of guilty was rendered on ten of the counts, and judgment arrested on two, that the judgment upon the remaining eight would not be reversed, if any count were sufficient, and the first was found to be good. The same had been de- cided in Commonwealth v. McKisson, 8 S. & R. 420 ; and in Hartmann v. Commonwealth, 5 Penn. St. R. 63, Burn- side and Bell, JJ., said in argument, "the law of Pennsyl- vania is settled, that if one count be good, it is sufficient ;" so also, as to several matters contained in the same count. In Cotteral v. Cummins, 6 S. & R. 348, Justice Duncan said, " it is the law, that where several matters are laid in the same count, part of which is not actionable, or not actionable in the form laid, if there are sufficient facts to support the action, it will be intended, after verdict, that damages were given only for such as were properly laid." The same is said in 1 Chit. PL 682, and the reason given, that the verdict will be sustained by the intendment and presumption that the judge duly directed the jury, not to find damages on the defective allegations. The same in- tendment was made in Weigley v. Weir, 7 S. & R. 310, the court remarking, that it is not to be presumed, the judge would direct, or the jury would have given the ver- dict, without sufficient evidence of the breach of the con- tract; the defect was, therefore, cured by the verdict. There are many analogous cases; Stoever v. Stoever, 9 8. & R. 454-5 ; Eerr v. Sharp, 14 Ibid. 399 ; Turnpike Co. v. Rutter, 4 Ibid. 6 ; Sedam v. Shaffer, 5 W. & S. 529 ; Corson V. Hunt, 14 Penn. St. R. 510; Seitz v. Buffum, Ibid. 69. In this case, the intendment should be even stronger, for the court being the exclusive judges of the facts as well as the law, we cannot suppose the decree was ren- dered on incompetent or insufficient evidence. " The courts make every reasonable presumption to rid themselves of Gibbons v. Shbppard. 655 (Appellate jurisdiction.) objections whicli do not toucli the merits;" per Eogers, J., Seitz V. Buffum, supra.* Thus, it is evident, from this array of authority, no pre- sumption can be drawn from the decree, that the court struck out divisions, because such a prayer is contained in the petition ; the decree itself furnishes no such evidence, while the prayer, if illegal, we must now presume, was disregarded, upon the legal intendment the cases all say should be made. The argument, therefore, founded on the decree following the allegata et probata is a non sequitur, and illogical ; the probata are not before us, while the allegata are not presumed to be followed, contrary to law. But, in addition to this general principle, we have an authority in point; in Ewing v. Filley, 43 Penn. St. R. 384, it was held, that the proceedings could not be reversed because of contradictory averments in the specifications, but the proper course would have been, to move the court below to strike out the contradictory part; and the certiorari was quashed. There was no motion in the present cases to strike out this prayer as illegal ; the only motion was to quash. Upon the whole record, in these cases, we discover no error, and the several decrees are, therefore, affirmed. Decrees affirmed, Thompson, C. J., and Shabswood, J., dissented. This case is undoubtedly authority for the principal point decided, namely, that the supreme court has jurisdiction to review the regularity * A labored argument, abounding in generalities, but which must fail to convince the understanding of any really learned man. It is well un- derstood that the majority of the court were compelled to assume this illogical position, by the refusal of one of their number to join in an affirm- ance of so much of the decree of the court below, as rejected entire election polls, for the reasons set forth in the petition. It is to be regretted that the plan of this work compels the omission of the able dissenting opinion of the Chief Justice. 656 GriBBONS V. Shbppard. (Appellata jurisdiction. ) of the proceedings of the court below, in a case of contested election, but not to re-try the case upon the merits. Its authority, however, upon the other questions involved, is much weakened by the able dissenting opinion of the Chief Justice, and the acknowledged great ability of the dissenting judges. It is always to be regretted, that a court should be divided politically, upon a contested election case, and that the decision should be in favor of the candidate of the political party to which the majority of the court are attached ; it necessarily weakens the authority of the case as a precedent. It was early decided in Pennsylvania, that the jurisdiction of the supreme court over the proceedings of the court of quarter sessions, in a contested election case, was revisory only, and that a certiorari would not lie to remove the proceedings in a case then pending and undetermined. Wallington v. Kneass, 15 Penn. St. E. 313. And in Carpenter's Case, 14 Ibid. 486, it was held, that the general revisory power of the court, to correct errors apparent on the face of the record, had been taken away by the act of 1839, which declared that the action of the court below should be final ; and a writ of certiorari issued in that case was, accordingly, quashed. This was followed by Scheetz's Case, in which the supreme court, on the 14th April 1853, were divided on the question of overruling Carpenter's Case, and sustaining the writ; Black, C. J., and Lowrie, J., being in favor of afiBrming the former decision, and Lewis, J., and Woodward, J., for overruling it, so far as to sustain the writ, for the purpose of examining into the regularity of the proceedings of the court below, but not to rejudge the merits; Gibson, J., by whom the opinion in Carpenter's Case was delivered, being absent at nisi prius. The latter opinion has been finally estab- lished as the doctrine of the supreme court, and was followed in Chase V. Miller, 41 Penn. St. R. 403 (ante 214), and Ewing «. Thompson, 43 Ibid. 372, as well as in the principal case. And see Commonwealth v. Garrigues, 28 Ibid. 11 ; Powers «. Reed, 19 Ohio St. R. 189. If, how- ever, the record do not show on its face, sufficient ground for the issuing of a writ of certiorari, it may be quashed on motion. Ewing «. Filley, 48 Penn. St. R, 384. In Ohio, the judgment of the common pleas in a case of contested election, is reviewable in the supreme court. Lehman v. McBride, 15 Ohio St. R. 573. In Illinois, under a similar statute, which provided that the decision of the circuit court in a case of contested election Gibbons v. Sheppard. 557 (Appellate jurisdiction.) should be final, the supreme court held, that their appellate jurisdic- tion was absolutely taken away, and that a writ of error issued in such a case must be dismissed. Moore s. Mayfleld, 47 111. 167; People v. Smith, 51 111. 177. In Missouri, on an appeal, there is a trial de novo in the circuit court. Boggs v. Brooks, 45 Mo. 232. The statutes, however, giving jurisdiction to municipal corporations to try contested elections of their own members, have been held not to oust the jurisdiction of the supreme court, to inquire into the legality of their proceedings, by granting an information in the nature of a writ of quo warranto. Commonwealth v. McCloskey, 3 Rawle 369 (ante 196). But the contrary was decided in Commonwealth «. Leech, 44 Penn. St. R. 382, and in Commonwealth v. Garrigues, 38 Ibid. 9. The same principle was involved in Commonwealth ■». Small, 36 Penn. St. R. 31. And in New Jersey, as early as 1794, the right of the supreme court, without any statute, to examine into the proceedings of an election, and if illegal to declare it void, was asserted in an able opinion by Chief Justice Kinsey, in State v. Justices of Middlesex, Coxe 244. This case, however, is said, in a note, to have been reversed on error before the governor and council, by a vote of 8 to 3, on the ground of want of jurisdiction. 558 Gibbons v. Sheppard. In the Court of Quarter Sessions of Philadelphia. MAKCH SESSIONS 1870. (Kepobted 2 Brewster 117.) [Rehearing.'] Where, in a contested election case, there was a decree for the contest- ant, whereupon the other party filed his petition, praying for a rehearing, on the ground of an erroneous computation of the votes, on the basis set- tled by the opinion of the court, and pending this petition, the cause was removed to the supreme court, by certiorari, where the decree was affirmed, the court being of opinion that the computation of the court below was not brought up with the record: it was held, that after the record had been remitted, the court below had power to hear the petition and correct any errors of computation in their decree. In purging the polls, illegal votes are to be deducted from the entire vote, not from the majority. A vote, prima facie illegal, must be disallowed, if the voter did not, at the time of offering it, produce the preliminary proof required by law. This was a proceeding to contest the election of Fur- man Sheppard to the office of district-attorney for the city and county of Philadelphia at the general election held in October 1868. The court of quarter sessions, on the 16th October 1869, made a decree in favor of the contestant ; whereupon a writ of certiorari was sued out to remove the cause to the supreme court ; but before any action was had upon the certiorari, Mr. Sheppard filed his petition for a rehearing in the quarter sessions, on the ground that there were errors in the computation of the votes for the respective parties, on the basis of the principles announced in the opinion of the court, which ought to be corrected. The court re- fused to disturb the decree, pending the certiorari; but the decree having been there affirmed, and the record remitted, the motion for a rehearing was renewed by the counsel for Mr. Sheppard. Gibbons v. Sheppard. 559 (Rehearing.) The contestant, thereupon, filed a bill in equity in the court of nisi prius, before Read, J., praying for an in- junction to restrain further proceedings in the cause on the part of Mr. Sheppard; an ex parte injunction was granted, and the case came up on a motion to continue the same under final hearing. Read, J., delivered the following opinion. The elec- tion of the second Tuesday of October 1868, in the city of Philadelphia, was fruitful of contested election cases. There was the contested election of a judge of the district court for the city and county of Philadelphia, tried and decided by a joint committee of the senate and house of representatives at Harrisburg ; the elections in the 3d and 5th congressional districts were also contested in congress, one of which has been determined, and the other is still pending, if not recently decided. Besides these, there were seven contested election cases, tried before the presi- dent judge and his associates of the court of common pleas, either as holding that court or the court of quarter sessions; the contested offices were the mayor, district- attorney, city solicitor, city controller, receiver of taxes, city commissioner and prothonotary of the court of com- mon pleas. In the month of October 1868, petitions of qualified electors were filed in all these cases, complaining, in each of them, of a false return and undue election for the par- ticular office. On the 14th November, motions were made, in all the cases, to quash the petitions, and were filed with reasons; these motions were argued together by Messrs. Rawle and Meredith for the contestants,. and by Messrs. Hirst and Phillips for the respondents ; and on the 5th December, the motion to quash was overruled, and the respondent, in each case, was ordered to file his answer on or before the 31st December 1868, on which day, all the answers were filed. On the 6th January 1869, the court appointed "William P. Messick and Richard M. Batturs, 560 Gibbons v. Sheppard. (Rehearing.) examiners to take testimony, who, on the 11th January, entered upon their duties, and were attended by William H. Rawle, Erastus Poulson and James T. Mitchell, Esqs., counsel for contestants, and by Lewis C. Cassidy and Isaac Gerhart, Esqs., counsel for respondent^ ; Mr. J. I. Gilbert was the phonographic reporter. The contestants' testi- mony commenced on the 11th January and closed on the 9th April, having occupied 37 days in actual business sit- tings ; Mr. Mann, on the part of the contestants, and Mr. Sellers, on the part of the respondents, were, present dur- ing a large portion of this time, and took an active part in the proceedings. The testimony on the part of the respondents commenced on the 3d May and closed on the 21st July, occupying 33 days, and covering 679 pages of printed matter; Messrs. Sellers, Gerhart and Fletcher, for the respondents, and Messrs. Mann, Mitchell and Donegan for the contestants. The testimony on the part of the contestants, in rebuttal, commenced on the 26th July and closed on the 31st July 1869, occupying six days. The testimony on the part of the contestants, in chief and in rebuttal, covered 901 pages of printed matter. The report of the examiners was filed on the 6th September, the court having fixed that day for the argument. The efiect of climate on legal business, is strikingly ex- emplified in this case. During its progress, one counsel on each side went to Europe, and on the 12th July, it was stated, in open court, by one of the counsel for the respon- dents, that one of the counsel was going to the White Mountains and would not return until September; another had to leave the city, by advice of his physicians ; and another was in Europe ; so that, if it was ordered by the court, that the cases should be discussed in August, the mayor, district-attorney and city commissioners would be in court without counsel. The arguments commenced early in September, and con- tinued for several days: Messrs. Mann, Strong and Mere- dith for the contestants, and Messrs. Sellers, Phillips and Gibbons v. Shbppard. 561 (Rehearing.) Hirst for the respondents. The court took time to con- sider, and on Saturday the' 16th October 1869, it was ordered, adjudged and decreed by the court, that at the election held in the city and county of Philadelphia, on the 2d Tuesday of October 1868, Charles Q-ibbons was duly elected to the office of district-attorney ; similar de- crees were made in the other cases in favor of the contest- ants, except in the case of the mayor, in which case the decree was in favor of the incumbent, and this office be- came no longer the subject of contest. In the six remaining cases, appeals, so called, were entered by the respondents, in each case, and writs of certiorari were sued out and allowed by the chief justice, at Pittsburgh on Monday the 18th October, and were filed in the proper office on the next day, Tuesday the 19th of October. These writs of certiorari brought before the supreme court nothing but the records, as they stood on that day. The six writs of certiorari were heard before a full bench, on the 27th, 28th and 29th January last ; the plaintiffs above being repre- sented by Messrs. Biddle, Phillips and Hirst, and the de- fendants above by Messrs. Rawle, Mann and Strong (now an associate justice of the supreme court of the United States); the argument, on both sides, was exhaustive. On Monday the 14th February, the opinion of the court , was delivered by Judge Agnew, in which Judge "Williams and myself entirely concurred; there was a dissenting opinion by the Chief Justice, concurred in by Judge Shars- wood. The court looked neither at the evidence nor the opinion of the court below, which were not brought up by the writs of certiorari, but simply at the record itself, and finding no error on its face, affirmed the decrees of the court below. Nothing subsequently to the 19th October was before them, and therefore, whatever took place after- wards was not passed upon, and was not affected by the affirmance of the decrees. In the case of the district-attorney, within the term of 36 562 Gibbons v. Sheppaed. (Rehearing.) the court at which the decree was entered, to wit, oh the 28th October 1869, a petition was presented by Funnan Sheppard, setting forth certain errors and omissions in the calculations upon which the decree was based, and praying to be heard to explain the same, without seeking to re-argue or to controvert any of the principles of law adopted by the court in its opinion. This petition was received and directed by the court to be filed, and a copy thereof was served upon Mr. Gibbons or his counsel; the court fixed the 30th October 1869, to hear an argument on behalf of the present plaintifl;' and defendant, upon the petition, on which day, both appeared in person or, by. counsel, and were heard upon the allegations in the said; petition, whereupon the court held the same under advise- ment ; on the 4th November, a supplemental petition was filed, by leave of the court, and a copy of the same, served upon the present plaintiff or his counsel; to these. petitions the present plaintiff filed answers, but suggesting no ob- jection or exception to the right of the court to consider and determine upon the matters set forth in the said peti- tions ; for reasons satisfactory to the court, they reserved their judgment upon the said petitions and answers. The decree of the court of quarter sessions having been affirmed, the court took up the said petitions and answers, in order to dispose of the same, and with the knowledge and assent of the counsel of the plaintiff" and defendant, assigned a day for the hearing thereof, which was post- poned until the 28th March 1870, when the present plaintiff" filed a paper, objecting to any further proceed- ings in the cause, because of the final decree of the 16th October, and because, on the 25th October, he took the oath of office, and because, the judgment of the court of quarter sessions was affirmed, on certiorari, by the supreme court. The court fixed Friday the 1st April, at 10 A. M., to hear the argument upon this paper, and upon the peti- tions and answers, of both of which petitions and answer^ I have been furnished with copies. On the 1st April, I Gibbons v. Sheppard, 563 (Rehearing.) was applied to by Messrs. McMurtrie and Meredith, and furnished with a copy of the-bill in this case, and I granted the injunction, fixing the hearing for Monday the 4th inst. The hearing did not take place until Tuesday, which gave me an opportunity to consult Judges Agnew and Wil- liams, with whom I had united in the majority opinion of the supreme court. We all agreed, that the decision of the supreme court decided nothing, except as to what was before us, and did not affect any future legal action that might be taken by the court below. The court of quarter sessions had a clear right, within the term, to re-examine, and if necessary, to reverse their own judgment or decree. I see, that they did, within the term, allow proceedings that might lead to such a result, which were submitted to by the present plaintiff, and that those proceedings are now in progress. I am now asked, virtually, to stop the action of a tribunal, having by law an exclusive jurisdiction of the subject- matter, legally commenced, and so far as I know, legally conducted, not by direct means, but by indirection. Whether I have any such power is, at best, very doubt- ful ; but in one thing I am clear, I will not exercise it. I have every confidence in the judges of the court below, knowing that no suitor will suffer injustice at their hands. Injunction dissolved. The motion for a correction of the decree was then pro- ceeded with in the quarter sessions, and was argued before a full bench, by Hagert and Biddle, in support of the mo- tion, and by McMurtrie and Mann, in opposition to it. Allison, P. J., delivered the opinion of the court. On the 16th day of October 1869, this court decided that Charles Gibbons, at the general election held on the second Tuesday of October 1868, had been elected district-attorney for the city and county of Philadelphia, over Purman Sheppard, by a majority of 68 votes. At the same term. 564 Gibbons v. Sheppard, (Rehearing.) of the court, on tlie 28th day of October, Furman Shep- pard presented his petition, which was allowed to he filed, in which it is set forth, that he had made an examination of the tables and estimates upon which the judgment of the court was based, and had discovered therein a number of omissions and arithmetical and clerical errors, to the extent of 112 votes, showing that the petitioner was duly elected district-attorney, by a majority of not less than 44 votes: the prayer is for a re-examination of the count and judgment entered thereon, and that the court will declare what is the |;rue vote and majority of the petitioner. This we could not have done, at that time, for the reason that Mr. Sheppard had, by certiorari, removed the case from this court into the supreme court ; it was no longer under our control, so as to enable us to change the judgment which had been entered, further than to see that the true record was sent to the court above. We probably could have corrected a mistake apparent upon the face of the proceedings, where there was anything to correct by, or where there was a plain error in the arith- metic of the count, and to this extent, we would have felt ourselves authorized to interfere with the record, before certifying it to the supreme court, if it had been regarded as important to thus alter our judgment, pending the appeal ; as these clerical errors would not have changed the result, we deemed it best to await the decision upon the certiorari. Further than this we could not have gone, because the writ, in effect, was a supersedeas ; our hands were tied by the act of the petitioner, and for this reason, we paused, after the argument had upon the petition, both upon the merits and upon the law of the case, as it then stood practically removed to the court above, though the record had not, in fact, been made up and sent into the supreme court. If we had done otherwise, we would have exposed ourselves to a charge of contempt of the higher «ourt, or our proceedings would, at least, have been void, Gibbons v. Sheppard. 565 (Rehearing.) after the service of the writ. 12 Mod. 384. The authorities are not entirely consistent as to the light in which our action would have heen regarded in the court of errors, but they all agree that, after service and until the record is sent back, nothing can be done, except to correct a plain mistake ; and this correction can only be made for the purpose of enabling the court to obey the command to send up the record, which means the correct and the true record. A misprision of the clerk, or a mistake of the court is the limit of our authority over the record after the certiorari has been lodged in our court ; unless, indeed, the judgment has begun to be executed, before service, in which case, the execution proceeds unaffected by the certiorari. This, however, has no application to the case of a contested election, in which the court, who are to hear and determine on the merits, have nothing to do with the execution of their judgment; our power termi- nates with the judgment or decree. The case of Ewing v. Thompson, 43 Penn. St. R. 377, is a conclusive authority upon this point ; it was the case of a certiorari, allowed by the supreme court, to the judg- ment of this court, in the matter of the contested election of Thompson v. Ewing ; the court say, the , effect of the writ was, to stay further proceedings in the court below ; originally, in fact, and now always, in theory, at least, it takes the record out of the custody of the inferior court, and leaves nothing there to be prosecuted or enforced by execution (post 577). A certiorari, after judgment, like a writ of error, is, in fact, a new suit ; it enables him who obtains it, to aver errors in the record removed, not to re-try the facts in the court above ; a judgment in it may be followed by a re-trial in the court below, if the errors in law are sustained (post 579). This principle was re- affirmed by the decision of the supreme court in the pre- sent case, the court refusing to look beyond the record, and the principles of law upon which we rendered our decision. But it has been asserted, that our power to re-examine 566 Gibbons v. Sheppaed. (Rehearing.) the case, and to alter our judgment upon the merits, or even to correct mistakes, is at an end, and that the prayer of Mr. Sheppard for a rehearing must, for this reason, he refused. The common law principle, that after the term at which a judgment has been entered, from which an appeal may be taken by writ of error or otherwise, it can- not be disturbed or changed, has been invoked in support of the objection. Stephens v. Cowan, 6 Watts 513, contains a strong assertion of this doctrine ; but it is, even there, qualified to some extent. The qualification is contained in the statement, that it would be going too far, to hold , that the court may not, before any proceeding has been had upon the judgment, correct a mere mistake that has arisen, in entering it differently from what was intended, and perhaps, directed. The reason upon which the gene- ral principle is maintained, is, that it is the duty of the court in error, when they reverse a judgment, to give such judgment as- the court below ought to have given; this shows that the principle is not applicable to the case before us, for the supreme court are, as they have stated, wholly powerless to correct any error of fact in a con- tested election. Stephens v. Cowan and the authorities there cited, apply to cases in which the court above can grant relief, by a correction of the judgment, which they cannot do in this case, for the cause assigned in the peti- tion ; they cannot do here, what, it is said in 7 Mod. 3, the judges are to do, "to reform as well as to aflirm or reverse," and to do speedy justice to the parties. In Castle v. Eeynolds, 10 Watts 52, the doctrine sought to be applied against the petitioner, is stated thus: "a judgment obtained by trial and verdict is, except in very special cases, out of the power of the court, after the term at which it was entered;" this admits that there are spe- cial cases in which, after the term ended, the power may be exercised. In Dyott v. Commonwealth, 5 Whart. 80, the doctrine is laid down as applicable to a judgment in the quarter sessions, upon a verdict of guilty, and is, in some Gibbons v. Sheppard. 567 (Rehearing. ) respects, analogous to the case of Commonwealth v. May- loy, 57 Penn. St. R. 291, Catlin v. Robinson, 2 "Watts 379, is the strongest Pennsylvania decision cited against the power of the court to go back upon its judgment, and open it for the correction of errors and mistakes; but there, three years after judgment, the rule to open was granted, and at the succeeding term after that, was made absolute ; the decision of the court was, that the day of discretion was past ; it was admitted, that the opening of a judgment was not matter for correction on a writ of error,, and that, only for excess of power, such order could be annulled on error. To the same purpose are the cases of Bailey v. Musgrave, 2 S. & R. 220, and Huston v. Mitchell, 14 Ibid. 310. In Catlin v. Robinson, Gibson, 0. J., ex- presses himself in very strong terms, against the exercise of the power, remarking that " the act imposing a limita- tion on writs of error, would be of little account, if an inferior court might do, at discretion, what a court of last resort dare not do, by the exercise of its legitimate pre- rogative." In Freeman v. Tranah, 12 0. B. 413, it is laid down, that only where delay in signing judgment arises from the act of the court, can it be entered, nunc pro tunc, two terms after verdict. But admitting the full force of the principle, which is invoked as restrictive of the power of the court over a judgment, at a subsequent term, we do not think, that it is to be applied with the same strictness, if at all, to a statutory proceeding in the nature of a public inquiry, complaining of a public wrong, in which, though indi- vidual citizens are interested, the community have a much greater concern, and in which the court in error cannot correct a mistake upon the merits, committed by the court below. If relief, for. this cause, cannot be given by the tribunal in which the proceeding is instituted, which alone can decide upon the testimony and enter judgment upon the facts as they find them, then, there is not only no remedy for the suitor, but what is even worse, the 568 Gibbons v. Sheppard. (Rehearing.) court itself is chained to its error, and cannot right itself, even when the mistake is beyond question. From such a conclusion of law, founded upon a state of facts entirely dissimilar to any which can arise in an election contest, we dissent : and if it has heretofore been thought by the court, that such fetters bound them, when an appeal was made for relief against error in fact committed by the court, it is time that such fetters were rent asunder, and the necessary freedom to correct such mistakes proclaimed. This liberty must, however, have its limits ; the application, on its face, must show that it is well founded ; it is strictly an appeal to the discretion of the court, and may be allowed or refused in the exercise of a sound discretion ; It is a pro- ceeding which is not to be favored, except upon the plainest exhibition of a 'prima facie case, requiring the in- terposition of the court to correct an error. A contrary course tends to prolong controversy in regard to the title to office, by which the interests of the public are placed in peril; a strict adherence to rule should be required in every such application.* But the conclusion at which we have arrived, as to our power to reconsider and reform our decree, is not without authority to support it. In Cannan v. Reynolds, 5 Ellis & Bl. 301, Lord Campbell asserts a general equity juris- diction of the court over their judgments; Coleridge, J., concurred and added, that the practice was now invete- rate and of every-day occurrence, to set aside judgments, whether regular or irregular, whether after execution or before, which, he remarked, showed their jurisdiction to do this; Crompton, J., agreed that the power could be ex- ercised, but the application must be made within a reason- able time after judgment is entered. In Usher v. Dansey, 4 M. & S. 94, an amendment was allowed, after judgment * It is difBcult to understand what is meant by a strict adherence to rule, in what is just said to rest in judicial discretion ; it is only another proof of the impropriety of vesting such discretionary powers in the courts, in political cases. Gibbons v. Sheppakd. 569 (Rehearing.) given in a former term and error brought thereon, and pending error ; the amendment was to correct a misprision of the clerk. The court, in the case of Galway v. Banon, Longf. & Towns. (Ir. Exch.) 70, allowed a petition to amend notes of decree, without withdrawing appeal. In this state, it has been held that, after error brought on a judgment of the district court or common pleas, the appli- cation for leave to amend, may be made to either of those courts, while the record remains in it, though the writ of error has been shown to the court ; Fury v. Stone, 2 Dall. 184; s. c. Add. 114; 1 Yeates 186; the amendment was allowed on the authority of Pickwood v. "Wright, 1 H. Bl. 643. In Spackman v. Byers, 6 S. & E. 385, the record was sent back for amendment; Rhodes v. Commonwealth, 15 Penn. St. B,. 276, decides that amendments can be allowed after the term at which judgment is signed; Gibson, C. J., says, the notion to the contrary is exploded, and has yielded to necessity, reason and common sense. The court in which judgment is entered may allow amendments of the record, even after error, as between the parties. Crutchen v. Commonwealth, 6 "Whart. 340; Chew's Ap- peal, 9 W. & S. 152. See also 1 Dall. 133-5 ; 5 Binn. 60 ; 6 Penn. St. E. 273. These authorities make it abundantly clear, that the court possessed the most ample power to allow the petition of Mr. Sheppard to be filed; and some of them would seem to indicate, that the correction of errors and mistakes, if not a correction of the judgment, might have been made, after certiorari, and before the record of the cause was sent up. But the latest case, and the one strictly analogous to that which we are now considering, Ewing V. Thompson, holds the contrary doctrine, asserting that our proceeding would have been void, if indeed, such action would not have placed us in contempt. "We were, there- fore, required to rest, until the decisi6n of the supreme court upon the case, as it was heard on certiorari; and we thought it but respectful and proper, that we should pause, 570 Gibbons v. Sheppard. (Rehearing.) while it was before Judge Read, upon a motion for a special injunction, to restrain Mr. Sheppard from further proceed- ing to prosecute to hearing and decree the matters set up in his petition. The way is now clear for such action as this court, after mature consideration, has decided ought to be taken, in order to ascertain the truth of the averments contained in the petition to reform our decree. Upon the pleadings, we have nothing before us, but the original and amended petitions of Mr. Sheppard, Mr. Gibbons disclaiming, upon the last argument, in open court, all responsibility for the papers entitled, " answers to Mr. Sheppard 's petitions for a rehearing," which were before the court upon the former argument ; following the disavowal of Mr. Gibbons, these answers were, with leave of the court, withdrawn by Mr. Mann, who was counsel for Mr. Gibbons.* We might, therefore, content ourselves with an examination of the matters contained in the first and second petitions of Mr. Sheppard, there being no reply or answer before the court, although the statements contained in the answers, which were considered at great length, upon the first argument, are in fact, if not in form, before us. It was admitted by counsel representing both of the parties to the proceeding, that the purging of the polls had heretofore proceeded upon an erroneous basis ;, that instead of deducting the illegal vote from majorities, it should, in each case, have been deducted from the whole vote in the division, and that the mode in which the results were obtained, on the former hearing, worked to the disadvan- tage of the petitioner. To this error, into which counsel on both sides fell, upon which their calculations were based, and upon which their arguments were constructed, is to be attributed, in part, the result declared in the * Mr. Gibbons asserted in open court, tliat Mr. William B. Mann was not his counsel, and had no authority to file the answers, though it was notorious that Mr. Mann had acted as Mr, Gibbons's counsel throughout this protracted cause 1 Gibbons v. Sheppard. 571 (Rehearing.) former opinion of the court,* and it is by an abandonment of this conceded mistake, and the adoption of a rule, now admitted to be the correct mode of purging a poll of its illegal votes, that a more accurate conclusion of this pro- tracted and vexatious litigation has been reached. Out of nearly 2000 pages of testimony, assessment lists, tally-lists and lists of voters for each election division, the manifest ignorance, bias and evident falsehood of many of those who were required to testify before the ex- aminers, it is often difficult in the extreme, and sometimes impossible, to get at the truth of the controversy. As an illustration of this remark, it may be stated, that every calculation or table of results which has been prepared by counsel, has differed the one from the other. Upon the rehearing, we have, in effect, four statements prepared by counsel for the petitioner, two answers, afterwards withdrawn, and two statements submitted by Mr. Gibbons, each one differing in statement and conclusion. We can claim to have given to this case a most careful examina- tion, with all these lights to aid us ; in this examination, we have adhered firmly to the principles contained in the opinion "of the court, which was delivered by Judge Brewster; in nothing have they been varied or departed from. We have confined ourselves t(? the correction of the account, where figures have been required to be placed into it, in consequence of an accidental oversight ; with an abandonment of an admitted error in the mode of stating the account in purging a poll ; and with a revision of our judgment, upon the evidence, as to whether votes to be received or rejected are legal or illegal votes. The strictest line of proof has been applied to every voter; and the result of the investigation will be stated, in summing up the corrected tables of the divisions to which our attention has been directed. * In point of fact, on the original hearing, Mr. Sheppard was counted mit; but before this rehearing, different political ideas prevailed, and different political results were to be achieved. 572 Gibbons v. Sheppard. (Rehearing.) "We have refused credits which have been claimed, in every instance, in which the testimony, as to voters who were primd facie illegal, did not show that, at the time at which they offered to deposit their ballots, the offer was supported by the proof which the law demands; the vouching by election officers, without making the requi- site proof, in each case, we have rejected. We hold that to enter upon the list of voters, that a voter was vouched for by a person whose name is written upon the list, is not, in itself, a full compliance with the law. In no case has a vote been counted as legal, where the proof showed, that a person who was assessed as residing at a place designated upon the assessment list, had removed therefrom before the election, unless it was established by evidence, that he had not removed from the election division. The learned judge then proceeded to re-state the com- putation of the votes for the respective parties, resulting in a majority of thirteen for Furman Sheppard ; and a final decree was entered that he was duly elected to the office of district-attorney. 673 In the Supreme Court of Pennsylvania. OCTOBER TERM 1862. (Eepostbd 43 Pennstltania State Eepoets 372.) [^Effect of commission,'] Where the appointing power is in the electors, the governor has no choice but to commission the person elected, and that done, a vested right is consummated in the appointee, which nothing but judicial decision can take away or authorize the governor to recall. If, on a decree correcting the election returns, the governor issue a new commission, the party holding it will be enjoined from interfering with the office, pending proceedings of review in an appellate court. This was a motion for a special injunction on a bill filed by Robert Ewing against John Thompson. The plaintiff had, on the 27th ^November 1861, been commissioned by the governor, as sheriff of the city and county of Phila- delphia ; before the issuing of this commission, his elec- tion to that office had been contested by a petition filed in the court of quarter sessions of Philadelphia; which court, on the 18th of October 1862, decided in favor of the contestant, that he had been duly elected to the office. Mr. Ewing, thereupon, sued out a writ of certiorari to remove the proceedings into the supreme court for review. Pending proceedings in the appellate court, the governor commissioned Mr. Thompson, and on his attempting to take possession of the office, this bill was filed praying for an injunction to restrain him from so doing. J. E. Gowen and Hirst, for the plaintiff. F. C. Brewster, Thayer and Gilpin, for the defendant. Strong, J., delivered the opinion of the cburt. Three prominent questions are raised by this motion: they are — 574 EwiNtt V. Thompson. (Effect of commission.) Has the complainant a legal right to the office of sheriff of the city and county of Philadelphia? Does the de- fendant unlawfully invade, or threaten to invade that right? If he does, is the invasion of such a character as to call for the exercise, by this court, of its preventive power? On the 27th day of ITovember 1861, the governor of the commonwealth issued a commission to the complainant, reciting that by the election returns of the October elec- tion of that year, it appeared that he had been chosen sheriff of the city and county of Philadelphia, and au- thorizing him to perform the duties and enjoy the privi- leges of said office for the term of three years, from the second Tuesday of October 1861, if he should so long behave himself well, and until his successor should be duly qualified; under this commission, he entered upon the duties of the office, and he has, in fact, acted hitherto as sheriff. If this commission be still in force, beyond controversy, he has a legal right, not only to the office, but to its undisturbed enjoyment ; this we do not under- stand to be controverted. The next stage of the inquiry, therefore, is, whether anything appears which invalidates the commission. The defendant produces a commission from the governor to himself, dated the 21st October 1862, reciting that it appeared from the returns of the same election, held in October 1861, that he had been chosen sheriff of the said city and county, and authorizing him to hold, exercise and enjoy the said office of sheriff, with all its rights, fees, perquisites, emoluments and advantages, and to perform all its duties, for the term of three years, to be computed from the second Tuesday of October 1861, if he should so long behave himself well, and until his successor should be duly qualified. The two commissions are for the same office, for the same term, and both recite the same election returns ; the second does not profess to be founded upon any amended return ; it makes no allusion to any contest of the election ; and it does not, in tenns, revoke, annul or supersede the commission previously EwiNG V. Thompson. 575 (Effect of commission.) issued to the complainant. What, then, is its legal effect? Had there been no contest of the election of sheriff, or of the election returns, it could not be maintained, that the commission issued in October 1862, annulled, vacated or superseded the commission given to the complainant in November 1861. The power of the governor to revoke a commission once issued to an officer, not removable at the pleasure of the governor, may well be denied ; even where he has the power of appointment of such an officer, an appointment once made, is irrevocable ; much more, it would seem, is a commission issued by him incapable of being recalled or invalidated by himself, when the appoint- ing power is located elsewhere, and when his act, in issuing the commission, is not discretionary with him, but is only the performance of a ministerial duty. Under the con- stitution, the governor does not appoint a sheriff', and he has no choice as to whom he will commission ; the ap- pointment is made by the electors, and it is the duty of the chief executive to commission the person whom they have designated according to the forms of law; when he has done that, his duty is performed, and a vested right is consummated in the person commissioned, a right which nothing but judicial decision can take away or authorize him to recall. The observations of the supreme court of the United States in Marbury v. Madison, 1 Cranch 137, bear forcibly upon this subject; that was an application for a mandamus to compel the delivery of a commission for an office to which the applicant had been appointed by the president of the United States, and for which a com- mission had been made out but not delivered; the office was one which the law created, and of which it fixed the duration of tenure by the officer, but under the constitu- tion, the president had the appointing power. Chief Jus- tice Marshall, in delivering the unanimous opinion of the court, made the following observations : " Where an officer is removable at the will of the executive, the circumstance 576 EwiNG V, Thompson. (Effect of commission.) whicli completes his appointment is of no concern, because the act is at any time revocable, and the commission may- be arrested, if still in the office ; but where an officer is not removable at the will of the executive, the appoint- ment is not revocable and cannot be annulled; it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made ; but having once made the appointment, his power over the office is terminated, in all cases where, by the law, the officer is not removable by him; the right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it." In that case, it seems to have been held, that neither the appointment nor the commission could be withdrawn. The executive may, undoubtedly, be authorized by law to revoke a commission, or supersede it for cause, though he have not the power of appointment, and though the du- ration of the tenure may be determined by the legislature. Whether he could, when the tenure, as well as the mode of appointment, is defined by the constitution, is perhaps not so clear, unless the commission has issued to one who was not elected or appointed. But the law has made the return the only evidence of an election, in the first in- stance, and conclusive until it has been corrected or shown to be false by a judicial determination. The de- fendant cannot stand, therefore, on his commission alone ; he is compelled to show that the executive was authorized to issue it, before he can contend successfully that it has superseded that previously granted to the complainant. This brings us to inquire whether the proceedings which have taken place in the court of quarter sessions empow- ered the governor to grant the commission, and thereby supersede that which was issued upon the original elec- tion return. These proceedings are not referred to in the second commission, but if they conferred a power, the EwiNG V. Thompson. 677 (Effect of commission.) commission must be held to have issued under it, rather than to be void. Prior to the date of his commission, a contest of the complainant's election and of the return thereof, had been initiated in the court of quarter sessions, under the pro- visions of the act of assembly of 2d July 1839, and in that contest, a decree was entered on the 18th day of Oc- tober 1862, that the complainant was not elected, but that the defendant had received a majority of the votes given, and that he was duly elected ; on the same day, a certiorari was sued out of this court by the complainant, to remove the record of the contest in the court of quarter sessions, and it was served. The effect of that writ was, to stay further proceedings in the court below, and to remove the record of the case into this court. That such is the ejffect of a certiorari, except in cases where the legislature has made a different rule, is the doctrine of all the cases ; it is not itself a writ of supersedeas, but it operates as one by implication; originally, in fact, and now always, in theory, at least, it takes the record out of the custody of the in- ferior court, and leaves nothing there to be prosecuted or enforced by execution. Very many of the English as well as the American authorities are collected in Patchin v. Mayor of Brooklyn, 13 "Wend. 664; there are very many others, all holding a common law writ of certiorari, whether issued before or after judgment, to be, in effect, a super- sedeas ; there are none to the contrary. In some of them it is ruled, that action by the inferior court, after the service of the writ, is erroneous; in others, it is said to be void and punishable as a contempt ; they all, however, assert no more than that the power of the tribunal to which the writ is directed is suspended by it ; that the judicial pro- ceeding can progress no further in the lower court. It is not so clear, either in. reason or in authority, that collateral action is erroneous or void ; if an execution has been issued upon a judgment, before the service of the certiorari, the power of the sheriff to go on, under the execution, is not 37 578 EwiNG V. Thompson. (Effect of commission.) suspended ; it requires a formal supersedeas to suspend it ; the court may even issue a venditioni exponas to enable its completion. An execution issued after certiorari served, is erroneous, and perhaps void, because its issue is the act of the court to which the superior writ has been sent, and the party whose further proceeding has been stayed. An election contest is, in some respects, peculiar ; true, it is a judicial proceeding, but, so far as the court, in which it is conducted, is concerned, it terminates with the judgment or decree ; no execution of the decree is entrusted to the court or is under its control. When the truth of the return is contested, the duty of the court is, to ascer- tain what should have been the true return and declare it; then its duty has been done. The regularity of its proceeding may be revised in the superior court, and no diovht, 2i certiorari removes the record in such a case; it cannot, however, operate upon the inferior court as a supersedeas, for, after a decree, there is no possible action of the court to be stayed. If it stays anything, it can only be the action of the executive in issuing a new com- mission, in view of it, rather than upon it, or action under the new commission, when issued, by the substantial party to the decree, in whose favor it has been made. But the issuing of a commission by the executive, after the service of a certiorari, is not disobedience to the writ, for that goes only to the judges; it is not, therefore, a contempt, as action by the judges and the parties would be; he is no party to the contest, either in form or substance. In reason, therefore, there is an obvious difference between the effect of a certiorari upon the court to which it is sent, or the parties to the judicial proceeding removed, and the execu- tive, who has no connection with the record ; nor do the authorities show that a certiorari operates upon any other than the court and parties. We are, therefore, not prepared to hold that, on the 21st day of October 1862, after the decree declaring what was the true result of the election had been made in the court EwiNfi ». Thompson. 579 (Effect of commission.) of quarter sessions, the executive had not authority to issue a commission to the defendant ; especially, are we not prepared so to rule, upon this motion, which is an appeal to our judicial discretion, while we are sitting only at nisi prius. The commission of the defendant is not necessarily invalid, because the election contest is pending, in the sense in which a cause adjudicated in an inferior court is said to be pending, after its removal by certiorari or writ of error to a court which is superior ; had it issued one day before the service of the certiorari^ but after the decree of the court of quarter sessions, and had the officer com- menced his duties, no one will contend that it would have been avoided or interrupted by the mere subsequent ser- vice of the writ, any more than an execution partly exe- cuted is stayed by the service of a certiorari on the court which had awarded it ; and yet, had the certiorari sued out by the complainant been four days later than it was, the election contest would be a pending proceeding, just as truly as it now is. A certiorari after judgment, like a writ of error, is, in fact, a new suit ; it enables him who obtains, it to aver errors in the record removed, not to re-try the facts in this court; a judgment in it may, indeed, be fol- lowed by a new trial in the lower court, but there is no re-trial here. It is not on that account — not because the action may, in this sense, be said to be pending — that pro- ceedings are stayed in the court where the trial was had> but it is because, in contemplation of law, its record is removed to another tribunal. But while we do not hold that the certiorari served on the court, took away from the executive the power to issue the commission to the defendant, after the decree correcting the election returns (a power which the decree unimpeached gave him), we do hold that the service of the writ affects the defendant. He was a party to the contest in the quarter, sessions, not in name, but in substantial truth ; it was his right which was in controversy, and his. were the fruits of the decree ; upon him, therefore, the 580 EwiNG V. Thompson. (Effect of commission.) certiorari may operate. When it was served and the record was removed, he had not hegun to execute the duties of the office nor to act under the decree and his commission ; his position is like that of a party who has an execution in his hands not delivered to the officer, when the writ comes and stays his further proceedings ; his title to his commission is not taken away, but his right to proceed under it is suspended until the final decision under the revisory writ. It may be, that the decision of the supreme court, on the hearing of the certiorari, will result in setting aside the decree of the court of quarter sessions, and thus leave the original return and the commission of the complainant in full force ; on the other hand, if the decree be affirmed, the right of the defendant to his com- mission and to the emoluments of the office, from the 2l8t day of October last, will be established ; his title will then have commenced at the date of his commission ; it does not, however, give him a present right to assume the office or interfere with its duties. The second question is easily answered in the affirma- tive; the bill and affidavits show that there has been, and still is, a disturbance of the rights of the complainant, made by the defendant, no doubt under a belief of right, but still unlawful. The remaining inquiry is, whether the case is such a one as requires the court, in the exercise of its equity powers, to grant an injunction. It is a bill preferred by an individual, asserting a personal right invaded ; yet it is not to be overlooked, that it affects public interests ; the office of sheriff is a most important one, and the ques- tion, which of two persons claiming it may lawfully per- form its duties, is one in which the whole community is interested. We ought not to leave the matter in doubt. Though we cannot now determine finally who has the right, we can and ought to determine who is the sheriff in fact, and prevent a conflict, until there shall be an EwiNG V. Thompson. 581 (Effect of commission.) adjudication that shall terminate finally the election con- test. We, therefore, feel constrained to award an injunc-, tion. Injunction awarded. The fact tliat a person lias been commissioned by the governor, does not oust the jurisdiction of the court, in a contested election case ; Thompson v. Ewing, 1 Brewst. 69 ; inasmuch as a commission issued after a proceeding instituted to contest the election, is regarded only as provisional, or as a commission, pendente lite, if the proceeding should be successful ; Ewing v. Filley, 43 Penn. St. E. 384. A commission is simply evidence of a right to hold an office, gives color to the acts of the incumbent, and constitutes him an officer de facto; but it invests him with no right to the office, and is annulled and superseded by the issuing of a new commission to another, who has been legally elected. State v. Johnson, 17 Ark. 407. The election having been declared void, the com- mission issued by the executive, being a mere ministerial act, gives no title to hold the office. Barry v. Lauck, 5 Cold. 588. And see Hunter v. Chandler, 45 Mo. 458. In issuing a commission, however, to an elective officer, the governor is not precluded from looking beyond the certificate of election, and may determine for himself who was the person duly and legally elected to the office; and the commission, when issued, is pre- sumptive evidence that the person holding it ia lawfully entitled to the office. State v. County Court of Howard Co., 41 Mo. 347. The point decided in this Missouri case is at variance with the established prin- ciples of our government, and is but another example of the growing tendency in our country, to disregard all law but that of power. When the seat of a member of a legislative body is contested, the house has no constitutional right to suspend the member from acting as such, until the matter of the petition has been determined. Mansfield Election, Cush. Elect. Cas. 17. 582 Commonwealth v. County Commissioners. In the Supreme Court of Pennsylvania. DECEMBER TERM 1834. (Kepobted 5 Bawle 75.) ^Failure to elect."] A disorder having arisen at a ward election for assessors, &e., the con- stable and the persons alleging themselves to have been chosen judges, adjourned the election from the usual place designated in the notice, to a neighboring house, where the relators had the highest number of votes, and were returned by the constable, as duly elected ; the electors who re- mained at the place of election designated in the notice, elected Judges and held an election, without calling in the overseers or other persons pointed out by the statute : the persons elected at this poll were returned by the election officers as duly elected : Held, that both elections were illegal ; and that this being a case of failure to elect, assessors were properly ap- pointed by the county commissioners. The commissioners have power to inquire into the regularity of a ward election ; the constable's return is not conclusive on them. This was a rule to show cause why a mandamus should not issue to the commissioners of Philadelphia county, commanding them to receive the return of the assessment made in Locust ward, by James Leslie, VoUum and Sul- livan, to pay them for their services, and to appoint as col- lector one* of the individuals returned by them. The com- missioners made return to this rule, that they had duly recognised and appointed Messrs. Rutherford, Benner and Quin, as assessor and assistant assessors of said ward. It was stated in the return that on the 16th September 1834, Lippard, constable of Locust ward, gave legal notice that an election would be held at the house of James Hutchinson, on Friday the 3d October, for one assessor and two assistant assessors for said ward, for the ensuing year. That two sets of returns were filed in the commis- sioners' oflace, one signed by Reese, Gress and Miles, who Commonwealth v. County Commissioners. 583 (Failure to elect.) returned that Rutherford was duly elected assessor and Linnard and Benner assistant assessors ; the other, signed by Lippard, as con8ta>)le, and Schofield and Caldwell, as judges, that Leslie had received the highest number of votes for assessor, and VoUum and Sullivan, for assistant assessors. The return further stated that the electors of Locust ward assembled at the place designated by the constable, and at 2 o'clock P. M. on the 3d October 1834, chose the judges of the election ; but who they were, it had been impossible to ascertain with certainty. That on the open- ing of the polls, or while preparations were making for it, much confusion and disorder arose, and a number of per- sons forcibly and violently interfered with the due open- ing of the polls ; that these persons, with the constable of the ward, and the two citizens whom they alleged to have been elected judges, opened polls at a neighboring house, and there impartially and tranquilly elected the persons mentioned in their return; that the electors who con- tinued at the place designated in the public notice by the constable, proceeded in the election, impartially and tran- quilly, and elected the persons mentioned in the return first above referred to. That the public exigencies requir- ing them to act without delay, they had chosen the per- sons mentioned by them in their return. Meredith and Scott, for the relator. Dallas, attorney-general, for the respondents. RoGEES, J., delivered the opinion of the court. A rule has been obtained on the commissioners of the county of Philadelphia, at the instance of James Leslie, to show cause why a mandamus should not issue, directing them to receive the return of the assessment made in Locust ward, by James Leslie, Henry VoUum and Nathan P. Sullivan ; to make payment to said persons of the amounts 58-i Commonwealth v. County Commissioners. (Failure to elect. ) prescribed by law for tbeir services as assessor and assistant assessors of said ward ; and to appoint as collector of taxes in said ward, one of the individuals returned to them for that purpose, by the said Leslie, Vollum and Sullivan; cause has been shown, the grounds of which are stated at large in the return of the commissioners to the' rule. For the relators to succeed in this application, it must clearly appear, that the assessors de facto were not duly elected ; for, if it were a doubtful election, a mandamus ought not to be granted. I do not take into view, that the assessors de facto were not made parties to this rule, as we shall consider the case in the same light as if the rule were amended by the insertion of their names in the record. But still the objection remains, that when there is any doubt of the validity of the election, the court will not interfere by mandamus, but will put the party, in the first instance, to an information in the nature of a quo warranto ; before a mandamus would be granted against the commissioners, we should require that there should be a judgment of ouster against those who were actually per- forming the duties of the office; and this would be a sufficient answer to the rule ; for here it is plain, that the election or appointment of the officers de facto is not, ap- parently, such a one as is merely colorable and void. Eex V. Bankes, 3 Burr. 1454. But we do not intend to rest the case on this ground, as the effect would merely be, to turn the relators round to a new proceeding ; this course would not meet the wishes of either party. I shall examine the case in two points of view: 1. "What is the title of the relators? 2. The title of the respon- dents? and by respondents, I mean the officers de facto, to whom the commissioners directed their precept, and whom we take to be parties to the rule. 1. I must first premise, that as a prerequisite to the issu- ing of a mandamus, it must appear, not only that the re- spondents have no title, but that the relators have. The writ is grounded on the suggestion of their own right ; it Commonwealth v. County Commissioners. 585 (Failure to elect.) cannot be claimed as a right, that the court is bound to issue a mandamus to compel the commissioners, for instance, to pay money for services rendered as assessors, when they are not legally such, nor even colorably so ; and this makes it our duty to inquire, by what title the relators claim to be assessors. The counsel for the relators rest their pre- tensions on the return of the constable, made in pursuance of the 4th section of the act of 11th April 1799. (3 Sm. Laws 393.) The act directs that the constables holding elections shall make a return thereof, signed by the judges, within ten days, to the commissioners of the proper county, &c., who shall file the same in their office. They contend that the commissioners are compelled to receive and file the return of the constable, and to issue their precept to the persons therein named, to make the assessment ; but conceding that the commissioners have no discretion in re- lation to the return (a point which I shall hereafter notice), yet, it is not perceived, how this helps the relators' case, unless it can also be shown, that the return is conclusive on the supreme court, and that, in fact, there is no tribunal in the commonwealth competent to examine into and cor- rect gross fraud or illegality of procedure on the part of the returning officer. It is in vain to deny, that this court have a superintending power, by information, to examine and correct abuses in such cases ; and I cannot conceive how this can be done, in many cases, unless we go behind the return ; it is not sufficient that forms have been observed, but it is necessary to its validity that the election shall have been conducted in the manner prescribed by law. By the return of the commissioners, in which the facts are stated with the requisite clearness and precision, it appears, that the constable, in pursuance of the directions of the act of assembly, gave notice of the time and place of holding the election; that the electors assembled at the time and the place designated, that being the place generally used for the purposes aforesaid ; that much cou- 586 Commonwealth v. County Commissioners. (Failure to elect. ) fusion and disorder having arisen, the constable and the two persons who, it was alleged, were elected judges, re- moved the election from the place designated, and opened the polls at a neighboring house; at which place the relators had the highest number of votes, and were returned by the constable and judges as duly elected assessors of the ward. The change of place was the act of the constable, or of the constable and judges; and if such authority is vested in him or them, it must be by virtue of some act of assembly which has not been pro- duced. ■ The only mode in which the place can be altered, is by force of the act of the 13th April 1807 (4 Sm. Laws 471), which makes it lawful for a majority of the qualified electors present at any meeting held at the usual place for electing assessors or inspectors, or other township officers, to change the place of holding said election, to any suit- able or convenient house best adapted for the convenience of the inhabitants of the respective townships. Now, whether the majority present would have had the right to adjourn the election, it is useless to determine, as there is no evidence of an overwhelming necessity ; nor is there any allegation that any vote was taken to ascertain the wish of the electors. We are, therefore, of the opinion that the relators were not legally elected, and have no title to the office of assessors; and this is, of itself, a decisive answer to the rule for a mandamus. 2. I shall now proceed to examine the respondents' title; and by the respondents, as before intimated, we mean the persons appointed assessors by the commission- ers. In discussing the question, it will be necessary to inquire what rights were acquired by the election held at the proper place ; for, after the secession of the constable, the electors who remained elected judges, who held an election at the usual place designated by the constable, and returned to the commissioners that John Ruthern ford, James M. Linnard and John Benner had received a majority of votes, stating the number each had received, Commonwealth v. County Commissioners. 587 (Failure to elect.) and that they were duly elected assessors for the ward. This was a proceeding wholly unwarranted ; there is no law which authorizes an election under such circum- stances, and in the manner above stated ; for the 2d sec- tion of the act of the 15th February 1799 (3 Sm. Laws 341), prescribes that, if any constable shall neglect or refuse to perform the duties required of him by that act, he shall forfeit the sum of $50; and in case of neglect, refusal, death or absence from the county of any constable or constables, the overseers of the poor of the township, ward or district, or where there shall be no overseer of the poor, the supervisors of the highways shall perform the duties required to be done by the constable, &c. This act relates to the election of inspectors; but by the 4th section of the act of the 11th April 1799, the constable is directed to hold the elections of assessors; and the elections are ordered to be holden under the same regulations, as in- spectors for the general election are directed to be chosen (8 Sm. Laws 393). It is then clear, that on refusal or neglect of the constable, the overseers of the poor, or, in default of an overseer of the poor, the supervisors of the highways, or in the city, the street commissioners who take the place and perform the duty of supervisors, should have been called in by the electors to conduct the election. In default of such an officer, no judges could be properly chosen nor legal election held. This, then, is the case of a failure on the part of the electors to elect; and the 87th section .of the act of 15th April 1834 (Purd. Dig. 963) provides, that if the electors of any township shall fail to choose an assessor or assistant assessor, at the time appointed by law, or if any person elected to such office shall neglect or refuse to serve therein, or if any vacancy shall happen therein, by death or other- wise, the commissioners of the county shall appoint a fit person to fill the office, who shall have the same powers, be subject to the same penalties, and receive the same compensation, as if he had been elected, &c. This act 588 Commonwealth v. County Commissioners. (Failure to elect. ) should receive a liberal construction; and if there is a failure to elect, for any cause whatever, the power to appoint (for without it the public would be deprived of these important officers) devolves upon the commissioners. On the ground that there had been no election, the com- missioners appointed the respondents assessors of the ward, and in this we conceive they exercised a duty imposed upon them by the act. 3. But the counsel for the relators contend, that the com- missioners were bound to receive and file the constable's return, and that it was their duty to issue their precept to the persons returned by him as duly elected. "Without adverting particularly to the form of the return, it must be observed, that two returns were made, and it was for them to decide which return was correct, or whether either of them should be received ; as it is made the duty of the commissioners, in a certain event, to appoint, that seems necessarily to imply the power to inquire whether the event had taken place, on the happening of which, it became their duty to act. It is a startling doctrine that in case of a notorious fraud or a palpable violation of the law, a constable can palm an officer on the public by the force of his return ; that by merely omitting to state the place where the election was held, he can control the election, when it is admitted that it was not, in fact, held at the place appointed by the act. If this be the law, it is useless to go through the mockery of an election ; the constable may return whom he pleases, always taking care that his return be correct upon its face; it would be better to give the appointment to the constable, at once, without the useless ceremony of an election. The act admits of the construction which we have given to it ; nor do we perceive any danger in committing to the com- missioners the power to examine into the illegality of elections conducted as this has been. The election is local, but the commissioners represent the whole county ; they may be fairly supposed as, in some measure, exempt Commonwealth v. County Commissioners. 589 (Failure to elect. ) from the feelings which act on the electors of the ward or township, and therefore, a reasonable hope may be enter- tained of something like impartiality. If, however, this hope should fail, the aggrieved party may resort to an information, when the whole case will be examined, and right and justice done. In the course of the argument, reference was made to the act of the 19th March 1824 (P. L. 53), but that act only gives jurisdiction to the quarter sessions, in the case of a contest with respect to the election of county com- missioners, auditors and other county officers. An assessor is not a county, but a township officer, a distinction plainly marked in the various acts of assembly, and particularly in the act of the 15th April 18^4, entitled "an act re- lating to counties and townships, and county and township officers." Rule discharged. In Alabama, it was decided in the case of State v. Adams, that a failure to elect by the people, by reason of the opposing candidates hav- ing an equal number of votes, created a vacancy in the office, which it was competent for the executive to fill by appointment. 3 Stew. 231 (ante 286). 690 Salter v. CouiirTT of Philadelphia. In the Court of Common Pleas of Philadelphia. SEPTEMBER TERM 1851. (Bepoeted 1 Philadelphia 255.) [ Compensation of election officers.] The courts have no power to allow compensation to election officers, for extra services, beyond the amount prescribed by statute. Case Stated. The plaintifi' was a clerk of the election held in the second precinct of the 5th ward, Kensington, on the second Tuesday of October 1851, and as such attended the polls and discharged the duties of his office, on the day of election, and in preparing the necessary papers and returns ; he was afterwards employed for two days in perfecting such papers. The defendants paid the plaintiff' the sum of $2, for his services as clerk, for the day on which the election was held, and contended that he was not entitled to any other or greater sum for his ser- vices under the act of 28th April 1851. The plaintiff, however, contended that he was entitled to extra pay, for services rendered after the closing of the polls ; and that the county-board having made an appropriation for the payment of such services, the county commissioners were bound to disburse the money. It was agreed that, if the court should be of opinion that the plaintiff was entitled to recover for such extra services, judgment should be entered in his favor for |4; otherwise, judgment to be entered for the defendant. King, P. J., delivered the opinion of the court. That the compensation allowed to the officers of the general election, under the act of the 28th of April 1851, is inade- quate to the labors required to be performed by them, I am prepared to admit ; but that, certainly, affords no suf- Salter v. County of Philadelphia. 591 (Compensation of election oiHcers.) ficient reason for allowing them a greater compensation for their services than is expressly ascertained by law. When the city and county of Philadelphia was divided into small election precincts, for the purpose of facilitating the reception of votes, it was seen, that the expenses of such multiplied polls would heavily increase the public ex- penditures, if that contingency was not carefully guarded against. It was to meet this manifest result, that a pre- cise sum was designated by law as a full compensation for the services of the officers, in conducting such elections. To conduct an election, means to execute all the duties con- nected with it, required by law; these duties form a whole ; and when a precise sum is allowed for an entire public service, such public service cannot be subdivided into parts, and separate compensations allowed for each. It is for the service that the compensation is allowed, not for the quantity of time employed in its execution. The law is express, its intention is clear, and this intention is best consummated by permitting it to speak for itself; if there were room for allowing a construction sufficiently liberal to embrace the plaintiff's claim, I should feel disposed to adopt it ; but this I cannot find either in the terms, the spirit or the policy of the act. The appropriation made by the county-board cannot change the question, which is one of the legality of the plaintiff's demand, liot of its abstract merits. The appro- priation I consider as the expression of the favorable opinion of that respectable body in reference to the claim, and as such, it is entitled to, and must be received with, every consideration; but before this court, the claim of the plaintiff must be regarded and determined as a ques- tion of positive law. Although I agree with the county- board, that the plaintiff's claim is a reasonable one, yet, finding no warrant for its allowance, in the law, but the contrary, I cannot pronounce a judgment directing its payment out of the public treasury. The result is, that there must be judgment for the county on the case stated. Judgment for defendant. 592 United States -y. Qtjinn. In the Circuit Court of the United States for the Southern District of New York. NOVEMBER 1870. (Reported 3 American Law Times Bepokts 180.) [ Congressional legislation.^ The 20th section of the act of congress of the 31st May 1870 (16 Stat. 140), punishing a fraudulent registration, for the purpose of voting for a mem- ber of congress, is a constitutional enactment. "WooDRUFP, J. (Blatchford, J., concurring), delivered the opinion of the court. The demurrer to the indict- ment now before the court, which was the subject of discussion at our yesterday's session, presents two ques- tions. The first is, whether the law of the United States under which the indictment is found, is constitutional, or, in a more general form, whether it is a valid enactment ; it is assailed, however, only upon the ground that it is an in- fraction of the constitution of the United States: secondly, whether the indictment sufficiently charges an offence under the law. The court will not endeavor to discuss,, with great minuteness or particularity, these two ques- tions ; the shortness of the interval which has elapsed since the argument closed, has precluded the elaboration of an opinion upon the points which are raised. Had the court entertained serious doubt of the correctness of the conclu- sions which they have reached, they would have taken time for greater deliberation, and if it seemed to them fit, have endeavored to throw light upon the subject by an extended discussion. But entertaining no doubt, and deeming it unnecessary and unprofitable that the progress of the public business should be delayed for the purpose of indulging in an elaborate exposition of constitutional Uniteb States v. Quinn. 598 (Congressional legislation.) or other law, we feel, not only at liberty, but constrained to confine ourselves to a very brief statement of the lead- ing grounds upon which the conclusion we have reached must rest. First, then, as to the constitutionality of the act in question. It is important, perhaps, certainly we deem it wise, in approaching that subject, to state just what the question is, which we are called on to consider, and to what a narrow point of inquiry the questions involved in the present demurrer, bring us. The section of the act of congress upon which this indictment is found, is single ; it is a single section of a single statute. Its validity involves the consideration of no other sections of the same or other statutes ; its discussion does not bring into view numerous questions which were alluded to in the progress of the argument, which might or might not be fit subjects for discussion, if other statutes, or other sections of the same statute, were before us for review. Without reading the section, under which the indict- ment is found, at length, or attempting to speak of it in technical terms, it must suffice to say, that it is an act which makes a fraudulent registration, or fraudulent attempt to register, by a person not having a legal right to do so, for the purpose of an election of a member of congress, a crime against the United States of America ; and the validity and constitutionality which we are to consider, rest alone upon the single question, has congress the power, under the constitution, to declare a fraudulent registration, or fraudulent attempt to register, for the purpose of voting for a representative or delegate in con- gress, a crime against the United States ? We, therefore, enter into no consideration, of various topics which were alluded to, referring to other details of other laws or of the act of which this section is a part. There are four provisions of the constitution of the United States, reference to which is pertinent to the in- quiry before us, namely: Art. I., sect. 2. The house of 38 594 United States v. Quinn. » (Congressional legislation.) representatives shall be composed of members cbosen every second year by the people of the several states ; and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature : Sect, 4, § 1. The times, places and man- ner of holding elections for senators and representatives, shall be prescribed, in each state, by the legislature thereof; but congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators: Sect. 5, § 1. Each house shall be the judge of the elections, returns and qualifications of its own mem- bers : Sect. 8, § 17. Congress shall have power to make all laws which shall be necessary and proper for carry- ing into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. I. Does the act in question infringe the provision of the constitution that I have read, which provides that electors in each state shall have the qualifications requi- site for the electors of the most numerous branch of the state legislature? It is argued, with great ingenuity and ability, that the act in question infringes that clause of the constitution, because it seeks to establish the test of qualification ; it seeks to affirm the evidence of quar lification, and by so doing, it, ex vi termini, imposes qualifications itself. We apprehend that this argument rests upon no solid basis ; the act in question neither pro- fesses, nor, by any implication, can it, we think, be con- strued, to afiect the qualification of any elector any- where. It imposes no duty to register; it prohibits no registration that is required in the state in which the elector seeks to exercise his franchise ; it touches no quali- fication of the elector in any other respect ; it leaves the state to prescribe the qualifications of electors for the most numerous branch of the state legislature, in the largest and fullest extent, untouched and unaffected; it says and only says, that when the qualification of regis- United States v. Quinn. 595 (Congressional legislation.) tration is imposed by the state law (leaving the expedi- ency and wisdom of such a law entirely to the judgment of the state), it shall be an ofi'ence against the laws of the United States, to contribute, by fraud or violation of the state registry laws, to the sending of a representative to the congress of the United States, who is not clothed with the authority which a true expression of the popular will would give ; and that is all. But it is said that congress, having nothing to do with the question of qualification, cannot treat of the subject of qualification at all; because, to require that the elector shall have the qualification which the state law imposes, and make his voting or registration an offence, if he has not that qualification, is, on the part of congress, to impose a condition itself on the right to vote. The court do not feel called upon to say, however little doubt they may feel upon the subject, whether or not the congress of the United States might, if they saw fit, make it a condition, throughout these United States, that all who come to elect members of the house of representa- tives shall first register their names. "We do not conceive that that question is involved ; but that the prescription of such a condition is no infringement of the elector's right to vote, we have no doubt, and we refer with confi- dence and with satisfaction to the constitution of the state of New York as the exposition of the views of her people and her legislature, at least, upon that precise question. It is provided in her constitution of 1846, that any male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of the state for one year next preceding the election, and for the last four months a resident of the county where he may offer to vote, shall be entitled to vote in the election district of which he shall be, at the time, a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people ; a declaration of qualifica- tions, and the sole qualifications which, under the consti- 696 United States v. Quinn. (Congressional legislation.) tution of the state of New York, it is competent to prescribe. And this same constitution, not deeming this unqualified declaration of the qualification of voters in- fringed, in any degree, has in section four of the same article, provided that laws shall be made for the ascer- taining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established. Our reflections lead us, therefore, to the conclusion, and without hesitation, that the prescription of a mode of ascertaining and certi- fying the qualification of him who shall present himself to exercise the elector's privilege, is no infringement of the clause that declares what shall constitute the requisite qualification, and is no attempt to prescribe to the states (to this or any other state) any condition for the exercise of the right of suffrage, and no ■ attempt to prescribe the qualifications of an elector. If we are right in this, then the second section of the first article of the constitution is no impediment to the legislation of congress upon this subject. II. The next clause of the constitution to which we refer (sect. 4, § 1), declares that the times, places and manner of holding elections for senators and representatives shall be prescribed, in each state, by the legislature thereof; but the congress may, at any time, by law, make or alter such regulations, except as to the place of choosing senators. Upon this affirmative provision of the constitution, and in support of the legislation which is now assailed, it is in- sisted, that this clause of the constitution warrants the passage of the act in question, on the one hand, while, on the other, it is denied, first, that this section includes the authority claimed ; and secondly, that the authority at- tempted to be exercised is within it. The framers of the constitution of the United States placed its government, all its strength and vigor, and all its permanent capacity for usefulness to the people, for whom it was made, in the votes of the people themselves. The debates in the convention in which the constitution United States v. Quinn. 597 (Congressional legislation.) was framed, the discussions which were had, bj way of exposition, when the constitution was presented to the states for their acceptance (both of which were cited to us in the argument), show, in the fullest manner, that those framers of the constitution did not, for one moment, lose sight of the indispensable condition, on which alone a government of the people could be safe to the people them- selves, or could secure the beneficent ends for which it was instituted, that the popular vote should be the true ex- pression of the opinions and choice of the electors. Hence, we say, this section four of the first article of the constitu- tion ; and hence (as was ably and clearly exhibited in the argument of the learned counsel for this defendant), the framers of the constitution, either through an apprehension that in some possible change of events, the states might become indifferent to the general good, and so neglect their duty, or warned, perhaps, by experience had under the previous articles of confederation on that subject, or, with wisdom forecasting the possibility that, at some distant period, circumstances might arise in some state, in which obstacles would be interposed to the full and fair ex- pression of the popular voice, and so, conscious that the very preservation of the government itself, for all its useful ends, demanded that its perpetuation through a popular vote should be secured, -by this fourth section, conferred power upon congress for that self-preservation. Time might be somewhere so arranged, and for some end other than the well-being of the whole nation, that the popular voice might be denied a full expression; place might be so fixed, as in that mode to defeat the general and the indispensable purpose ; the manner of holding an election might be such, as to operate to prevent an open, fair expression of the popular voice; or, to use an illus- tration freely used in the discussions had, when those men who went into the various states and elsewhere, wrote in explanation of the provisions of the constitution, that the people might understand it, elections might be so con- 598 United States v. Quinn. (Congressional legislation.) ducted, either througli an indifference of the states, or otherwise, that the general government might find itself unsupported by the very people on whose will the founda- tions of the government rested. Hence, we say, the scheme pointed out by this section four; and hence, we say, the explanations which were given by the great and good men who expounded it. It seems to me, that we ought to pause but a moment upon the suggestion, that in the enforcement of a law such as we have now before us for consideration, intended to secure an election of members of the house of representa- tives, by the giving of all legal votes, and by the giving of none that are fraudulent, the government of the United States has no interest. " The government of the United States" — what is that? It may be conceded to be an arti- ficial thing which men call "government," and which is sometimes looked upon as the source as well as the exhi- bition of power, and not capable of interest more than it is of thought or feeling. But the government of the United States, in the true sense, is the people of the United States, one and all, throughout the length and breadth of the land. And the people of the United States, here and elsewhere, have not only an interest, but an interest that is vital, in the preservation of their insti- tutions, and in the preservation of all that is pure, just and honest in the popular vote, on which, for their safety and security, their institutions and their government rest. Now it is conceded, if I have rightly apprehended the arguments which have been addressed to us, to be within the constitutional grant of power to congress, to proceed, under this power, to regulate the time, place and manner of holding elections, and to make such regulations as to eiach, that all the electors, in every state, shall have full and fair opportunity to declare their will. And the illustration chiefly used in the discussion to which I have referred, was one drawn from the supposition that, possibly, the intervention of congress to secure that United States v. Quinn. 599 CCongressional legislation.) end miglit become necessary. It is equally important, tliat no one who is not an elector shall be permitted to defeat the will of those who are, by interposing his vote. It is also equally important, that no one shall be permitted to deposit more votes than he is entitled to ; and both these possible evils rest precisely on the principle on which it was declared that this clause might be useful, and the exercise of the power might become necessary, in order that all legal voters should have full and fair opportunity to deposit their votes. The court are not able to see the difference in principle between a regulation to enable all to vote who are entitled to vote, and a regulation to prevent men from voting who are not entitled, or to prevent men from voting more times, or in more places than one. If not, then the power to do the one, and the power to prohibit the one, involves the power to prohibit the other ; the power to make a regulation that shall secure to every man entitled to a vote, a safe and convenient exercise of his privilege, involves the power to see to it that no one who is not entitled to vote shall be permitted to exercise that right. All this leaves, as I have already stated, the subject of the qualification of electors, untouched; leaves the laws of the states, the laws of the state of N'ew York, to operate in their full force. And although it be true, that the laws of the state of New York cannot be relied on as the source of authority, or as giving any vigor to the enactment, yet, if it be necessary to refer the power of congress to pass this enactment, to a grant to be found in the constitution, wholly independent of state authority, then, the court must say, it has it in the section before us. And if it be true, that the exist- ence of that power in congress is exclusive, so that, when exercised, it takes the place of existing state laws, and the imposition of state penalties, be it so ; this involves no new principle. The court and the people of the coun- try have long been familiar with the doctrine which is iow conceded, and indeed insisted on here, that the legislation 600 United States v. Quinn. (Congressional legislation.) of congress on the subjects entrusted to it by the constU tution, is exclusive. On that subject, two observations are pertinent; the first is, that failure to exercise the power hitherto, is shown by the history of this government, to furnish no argument against its existence. The debates to which I have referred, the discussions to which I have alluded, breathe of the confidence the framers of the constitution had, not only in the patriotism, but in the intelligence and wisdom and fidelity of the people; in the congress of the United States which was convened, and has con- tinued to be convened from that time onward, the same confidence that the people of the United States would, on this subject, make all due and needful regulations, has been exhibited. If it be true that the time has come, which the contemporaneous exposition of the constitution contemplated as possible, and designed to anticipate and guard against, in which it was expedient for congress to intervene and exercise the power, then that time has come, the anticipation of which furnished the occasion and the ground for introducing this clause into the con- stitution. Whether that time has come in which just apprehension warranted legislation; whether occasion, therefore, exists which made it best and wisest that con- gress should exercise the power, is a question with which a judicial tribunal has nothing to do ; of that, congress is the sole and proper judge. The other observation, having reference to this lapse of time, which I propose to make, is this, that there are numerous powers conferred by the constitution upon con- gress, which, for a time, remained dormant in their hands ; there are powers which even now remain dormant ; and the history of adjudication on this subject, shows it to have been well established by decisions of the supreme court of the United States, that the circumstance that states have legislated, and legislated through periods of years, upon a subject, without question and interference United States v. Quinn. 601 (Congressional legislation.) by congress, in no degree impairs the force of the consti- tutional grant to the congress of the United States, and their neglect to exercise the power in no sort defeats the power itself. On the contrary, until the congress of the United States acts in the exercise of the power, the states, in matters not directly inhibited, legislate and their legislation has full force and validity ; when the act of congress comes, then that act is exclusive. And again, therefore, I say, if it be true, if the argument be sound, that the power of the state of Ifew York to punish, cannot coexist with the power of congress to impose punishment, under the law which we have before us, then, the exclu- sive legislation of congress must prevail ; and it is reason- ing reversely, to argue that " the two cannot coexist — ^the legislation of the state does exist, and therefore, the act of congress cannot stand;" it is reversing the order of argument ; the true statement is this — if the two cannot coexist, the act of congress is controlling, and the state law gives way. Perhaps, I have not done justice to the argument, as it was presented; but these observations seem to me pertinent to one of the views which were pre- sented to us in the discussion. III. I have anticipated in what I have said, the force and effect of the 17th subdivision of the 8th section of the same article, the power to make all laws which shall be necessary or proper for carrying into execution the fore- going power. If, according to the view which we take of the section already considered, fongress has power to regulate the time and manner of holding elections, so as to secure as well a full and fair opportunity to vote, at all elections for members of congress, as also to see to it that no one fraudulently exercises the privilege of voting, then it follows, under the 17th subdivision, that congress has the power to pass all laws which shall be necessary to give effect to those regulations ; and we know of none so effi- cient, as to add the sanction of a penalty. IV, There is another section upon which I desire to make 602 United States v. Quinn. (Congressional legislation.) a single obBervation : sect. 5. "Each house shall be a judge of the elections, returns and qualificationa of its own mem- bers." We do not think it necessary to rest our views of the constitutionality of the law upon that section, and yet, the argument, to our minds, is plausible to a high degree, if, indeed, we ought not to regard it as satisfac- tory, alone considered, viz: that when the constitution confers upon each house the power to judge of the elec- tions, returns and qualifications of its own members, and then authorizes them to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in any department of the government, it authorizes congress to make such laws touching the con- duct of elections and returns, as will operate, first, to fur- nish each house of congress appropriate evidence of the validity of the commission or appointment of any man who comes there claiming the right to a seat, and alike to prohibit the intervention of any obstacle which might embarrass or prevent the exercise of the right of each house to judge of the election of any man who claims a right to a seat. It is familiar to us all, that when a contest arises (I refer to this as the practical exposition of the subject), congress feels itself at liberty to probe the matter of the election ot a representative to its very foundation ; to look through and beyond all forms of authentication and certificate, and inquire and determine the actual fact, whether or not, he who claims a seat is entitled thereto ; and our statute book contains numerous provisions having for their object the facilitating of the inquiry. And can it be, that when congress is clothed with full powers to pass all laws to carry into effect this power conferred upon a department of the government, they raay not make it an offence against the laws of the United States, to effect a frauduleM regis- tration, which is to stand as primd facie evidence that the vote which is cast is a legal and proper one? I will not enlarge upon this branch of the Subject; but there are United States v. Quinn. 603 (Congressional legislation.) considerations tending strongly to the inference that the power contained in the last two clauses which I have named, is full and ample to sustain the constitutionality of the section on which this indictment is founded. The learned judge then proceeded to show that the in- dictment, being for a statutory misdemeanor, and the offence being charged in' the words of the statute, was sufficient. (See 12 Int. R. Eec. 153.) Demurrer overruled and judgment for the United States. The constitutionality of the 20th section of the act of 31st May 1870, may, perhaps, be conceded, without endorsing the whole of a law, which is apparently designed to give to the federal executive a con- trolling influence in the state elections. Probably, the worst feature of this act is the 13th section, which declares it lawful for the president to employ such part of the land and naval forces of the United States or of the militia, as shall be necessary to aid in the execution of judicial process under the act. The use that may be made of this power was shown in* two or three recent instances, in which, although no judicial process had been issued, and no infraction of the law had occurred, portions of the military forces of the United States were stationed in the immediate vicinity of the polls, on election day, for the undisguised purpose of overawing the electors in the exercise of the right of suffrage. And this, not with a view of securing to the friends of the federal administration a fair election for members of congress (for in each of these cases the return of a friend of the administration was acknow- ledged to be hopeless), but for the ulterior purpose of influencing the election for state oflScers. If 'the American people are content to endorse this action, as a constitutional exercise of federal power, they have strangely degenerated from their British ancestors. In 1741, during the corrupt administration of Sir Eobert Walpole, at an election held for the city of Westminster, under an order signed by three magistrates of the county, a body of armed soldiers was marched up and stationed in the churchyard of St. Paul, Covent Garden, in the vicinity of the poll ; and on this being shown to the house of commons, 604 United States v. Quinn. (Congressional l&gislation.) they passed a resolution aflarming "that the presence of a regular body of armed soldiers, at an election of members to serve in parliament, is a high infringement of the liberties of the subject, a manifest violation of the freedom of elections, and an open defiance of the laws and constitu- tion of this kingdom." The high bailiff was taken into custody by order of the house, and the three magistrates who signed the order were brought to the bar and reprimanded by the speaker, upon their knees, as the house had directed ; and after this, the house passed a vote of thanks to the speaker, for his reprimand of the delinquents, and directed the same to be printed. This is the mode in which our ancestors resented such infractions of their political liberties ; it is to be hoped, there is still virtue enough in their descendants to follow their example. As early as the 4th April 1803, the state of Pennsylvania provided by statute that "no body of troops, being regularly employed in the army of the United States or of this state, shall appear and be present, either armed or unarmed, at any place of election within this state, during the time of said election." 4 Smith's Laws 101. And this wholesome pro- vision to secure the political liberties of the people was re-enacted by the act of 3d July 1839, § 95. Purd. Dig. 383. It may well be doubted, whether a violation of this statutory regulation would not vitiate the poll. In 1793, a committee of the House of Representatives reported against the right of a member to his seat, on the ground of the presence of fede- ral troops in the immediate vicinity of the polls, and the interference of some of the soldiers with the freedom of the election. And in conse- quence of this occurrence, a bill was passed by the house "for removing any military force of the United States from the places of holding elec- tions ;" this, however, failed to become a law in consequence of the non-concurrence of the senate. Trigg ■». Preston, 1 Cong. Elect. Cas. 78. Blackstone says, "it is essential to the very being of parliament, that elections should be absolutely free ; therefore, all undue influences upon the electors are illegal and strongly prohibited." 1 Bl. Com. 178. For, Mr. Locke ranks it amiong those breaches of trust in the executive magis- trate, which, according to his notions, amount to a dissolution of the government, "if he employs the force, treasure and ofllces of the so- ciety to corrupt the representatives, or openly to pre-engage the electors and prescribe what manner of persons shall be chosen ; for, thus to regulate candidates and electors, and new-model the ways of election, Mayfield v. Moore. 605 (Fees of office pending a contest. ) what is it," says he, " but to cut up the government by the roots and poison the very fountain of public security?" Locke on Government, p. 2, § 233. Perhaps, there is no better proof of the extent to which the principles of civil and political liberty have passed from the remembrance of the American people, than the fact recorded in the daily newspapers, with- out comment, that at the municipal election of the city of Charleston, held on the 3d August 1871, six years after the close of the civil war, a body of federal troops was stationed at each precinct, to prevent violence. And this, without shadow of authority, and without its ex- ■ citing the slightest emotion in the citizens of what is claimed to be a free country. MATriELD V. MOOBE. In the Supreme Court of Illinois, SEPTEMBER TERM 1870. (Ebpokted 3 Chicago Legal News 114.) l^Fees of office pending a contest.'] The title to an office confers upon the person elected a right to the fees and emoluments thereof, from the commencement of his legal term. An action for money had and received wUl lie by the officer de jure against one who has intruded into the office, by color of a certificate of ' election, to recover the fees received during the time of such intrusion. If the incumbent received his commission, bona fide, he will be allowed,£2 in such action, his reasonable expenses in executing the duties of the office ; otherwise, if his intrusion were without pretence of legal right. Appeal from Morgan county. This was an action of assumpsit brought by Milton Mayfield, in the Morgan circuit court, against Sylvester L. Moore, to recover the fees received by the defendant, as sheriff and collector of the state, county and other revenue. On the 6th Novem- ber 1866, the plaintiff" and defendant were opposing can- didates for the office of sheriff of Morgan county ; on a canvass of the vote, a certificate of election was given to the defendant, who received a commission and entered 606 Mayfield v. Moore. (Fees of office pending a contest.) upon and discharged the duties of the office, from the 17th November 1866 until the 13th January 1868. Soon after the canvass of the vote, the plaintiff gave notice to the defendant that he should contest the election, on the ground that illegal votes had been cast for the defendant, more in number than sufficient to change the result. Jus- tices of the peace were selected in the mode pointed out by law, and a trial was had, which resulted in favor of the plaintiff, finding him, on the evidence, to be entitled to the office. From this decision, the defendant appealed to the circuit court of Morgan county, where a trial was had, with a like result. To reverse the judgment of the circuit court, the defendant sued out a writ of error to the supreme court, which was subsequently dismissed, and the plaintiff was duly commissioned and entered upon the duties of the office. The plaintiff then brought this suit, to recover the fees and emoluments of the office received by the defendant whilst acting as sheriff. A trial was had in the court below, where the plaintiff recovered a judgment for $34.65, the amount of fees received after the rendition of the judgment by the circuit court, and before the office was surrendered to the plaintiff. On the trial, the plaintiff offered to show the amount received by the defendant, whilst he exercised the office, as fees, allowances and emoluments, but the court overruled the offer, and con- fined him to the fees, commissions and profits received by the defendant, after the decision of the case by the circuit court. The plaintiff, thereupon, took his appeal to the supreme court, and assigned such ruling of the circuit court for error. Ketchum and De Leuw, for the appellant. Case and McClure ^ Stryker, for the appellee. Walker, J., delivered the opinion of the court. It is urged by the appellant, that he, being entitled in law to Matfibld v. Mooke. 607 (Fees of ofllce pending a contest.) the office, the fees and emoluments incident to it followed the title and vested in him; and that, on the familiar rule, that where one person has received money which, in eq[uity and good conscience, belongs to another, he may sue for and recover the same, in an action for money had and received. We presume it will not be questioned, that the legal right to an office confers the right to receive and appro- priate the fees and emoluments legally incident to the place; that where such an officer performs the duties of the office, he may demand and receive the compensation allowed by law. It cannot be, that in such a casd, another person can legally claim such compensation; an officer, having rendered services, is as fully entitled to the com- pensation fixed by law, as is any one individual entitled to a reasonably compensation for labor and skill rendered for another; the fees and emoluments are legally his. We also find that the authorities have gone still further and held, that where a person has usurped an office belong- ing to another, and received the accustomed fees of the office, money had and received will lie, at the suit of the person entitled to the office, against the intruder. Arris V. Stukely, 2 Mod. 260 ; 1 Selw. N. P. 68. And the same rule was announced and enforced in the case of Crosbie v. Hurley, 1 Ale. & N'ap. 431 ; in this last case, there was a contest as to the title to the office, and the person recover- ing the title to it, sued the other who had acted, and recovered the fees and emoluments received whilst in pos- session and exercising the duties of the place. The same rule has been adopted in this country, and seems to be based on common law rules. It is said by Blackstone, that "offices are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, and are also incorporeal hereditaments, whether public, as those, of magistrates, or private, as bailiflEs, receivers or the like ; for a man may have an estate in them, either to him and 608 Mayfield v. Moore. (Fees of office pending a contest.) his heirs, or for a term of years, or during pleasure only, save only, that offices of public trust cannot be granted for a term of years, especially if they concern the admin- istration of justice; for then they perhaps might vest in executors or administrators." 2 Bl. Com. 36. Thus, it is seen, that the right to the fees and emoluments is stated to be coextensive with the office ; and this is undoubtedly correct, as it is analogous to every other thing capable of ownership. 'Eo principle of law can be clearer, than that the owner of lands and chattels is entitled to the products, increase or fruits flowing from them ; and the fees of an office are incident to it, as fully as are the rents and profits of lands, the increase of cattle, or the interest on bonds or other securities. A person owning any of these things, is, by virtue of such ownership, equally entitled to the issues and profits thereof, as to the thing itself. If, then, the appellant was the owner of, and held the title to the office of sheriff, he was as clearly invested with the right to receive the fees and emoluments ; they were incident to, and as clearly connected with the office, as are rents and profits to real estate, or interest to bonds or such like securities. Glascock v. Lyons, 20 Ind. 1 ; Petit v. Ros- seau, 15 La. 239 ; People v. Smyth, 28 Cal. 21 ; People v. Tieman, 30 Barb. 193. We think that, on both reason and authority, the appellant is entitled to recover the fees and emoluments arising from the office whilst it was held by the appellee. It is, however, urged, that the appellee surrendered the office as soon as it was finally judicially determined that the appellant was entitled to it, and is, therefore, not liable to account for any fees but those received after the circuit court decided the case on appeal from the three justices of the peace. This is not a question of intention, but a ques- tion of legal title to the sum in dispute. Under the law, so soon as a majority of the votes were cast for the appel- lant, at the election held in pursuance of law, he became legally and fully entitled to the office ; the title was as Mayfield v. Mooue. 609 (Fees of oflSce pending a contest.) compkte then, as it ever was, and no subsequent act lent the least force to the right to the place. The commission was evidence of the title, but not the title; the title was conferred by the people, and the evidence of the right by the law. Ifor can it be successfully claimed, that the ap- pellee was not in the wrong ; he was bound, before entering upon the discharge of the duties of the office and the re- ceipt of the emoluments, to know whether he had title ; his position waa the same as that of a person who, having a defective title to a tract of land, enters into possession and the receipt of the rents and profits; he entered at his peril. Nor do we perceive any hardship ; after the vote was canvassed by the clerk and a justice of the peace, the appellant promptly gave the appellee notice that he would contest the election, and specifically pointed out the grounds ; being thus apprised of the grounds upon which the appellant based his claim, the sources of information were open to him to have learned the facts, and to have acted upon them ; failing to learn them, or, having done so^ not heeding them, he has no reason to complain if he has to respond to the wrong perpetrated upon another. He has. entered into the appellant's office, without right, and has received the profits of it, and like the person entering into the land of another, with a defective title, he must answer for the profits. Inasmuch, however, as the appellee obtained the certifi- cate of election and a commission was issued to him, he was acting in apparent right, and in so far as this record discloses, he resorted to no frauduleiit or improper means to produce that result, he does not occupy the position he would, had he resorted to such a course. He should only be required to account for the fees and emoluments of the office received by him, after deducting reasonable expenses incurred therein. This being an equitable action, it should be governed in this respect by the same rules that would have obtained, had this been a bill for an account, instead of an action for money had and received. He should have 610 Mayfield v. Moore, (Fees of office pending a contest.) only a reasonable allowance for the necessary expenses in earning the fees and emoluments ; had he intruded without pretence of l^gal right, then a different rule would, no doubt, have been applied. In adopting the time when the circuit court decided that the appellant was entitled to the office, as the period from which he was entitled to have the fees and emolu- ments of it, the circuit court erred. That decision was no more potent to confer the right to the office, than was the decision of the three justices of the peace ; it, as we have seen, was not the decision, but the vote of a ma- jority of the electors of the county, that conferred the right ; the court, on the evidence, found and declared the title, but did not confer it. We have seen, that the appel- lant was entitled to the office and its emoluments from the time the appellee entered into it, and he became liable to account for them from that date, until he ceased to act and receive the fees and perquisites of the office. The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. . Judgment reversed. As early as 30 & 31 Car. II., it was ruled by the court of king's bench, that assumpsit for money had and received would lie against a usurper, for the fees receiTed by him, during his occupancy of the office. Howard «. Wood, 2 Lev. 245 ; b. c. 3 Jones 136. And this was followed in Arris v. Stukely, 3 Mod. 260 ; Powell v. Milbank, 1 T. R. 399 n. ; Boyter v. Dodsworth, 6 T. R. 681 ; Lightly v. Clpuston,: 1 Taunt. 114 ; Orosbie v. Hurley, 1 Ale. & Nap. 431. And the same doctrine is fully ■sustained by the American cases. Thus, in People v. Pease, 27 N. Y. 56, it was said by Davies, J., that on a recovery in quo warranto, "the legal consequences follow, that the person usurping the office is ousted, the person legally entitled takes the office and its fees, and recovers from the usurper the fees or emoluments belonging to the office, received by him by means of his usurpation ; if the term of the office should have Mayfield v. Moore. 611 (Fees of office pending a bontest.) expired before the final deteinnination of the question, it follows, that the successful party cannot take the office, but he will be none the less entitled to recover the fees and emoluments to which he was legally en- titled, wUch may have been received by the usurping claimant. So, in People «. Tieman, 30 Barb. 195, it is said, that "the salary and fees are incident to the title, and not to the usurpation and colorable posses- sion of an office. — Possession under color of right may well serve as a shield for defence, but cannot, as against the public, be converted into a weapon of attack, to secure the fruits of the usurpation and the inci- dents of the office." In Indiana, it has been decided, that if a person rightfully in the pos- session of an office to wliich he is entitled, be ousted therefrom by an intruder, an action for money had and received will lie in his favor, against the usurper, to recover the fees, when fixed or customary fees are incident to the office ; and that in such action, the title to the office may be determined. Glascock v. Lyons, 20 Ind. 1 ; Douglass v. State, 31 Ind. 479. In California, it was held, that one having the legal right to an office, but not in possession Of the same, is entitled to the salary for the term for which he was elected ; and that the payment of the salary to one in possession, without title, would not prevent the party having title from recovering the salary. People v. Smyth, 38 Cal. 21 ; People «. Oulton, Ibid. 44 ; Carroll v. Liebenthaler, 19 Am. L. Reg. 448 : and see Petit a. Roussea;u, 15 La. 239. In Pennsylvania, the only case, in which this question has be^n referred to, is that of Ewing «. Thompson, 48 Penn. St. R. 378 (ante §80), where it was said by Mr. Justice Strong, that in the case of a contested election for sheriff', the party found to be legally entitled to the office would be entitled to recover from the usurper the fees and emoluments of the office from the date of his commission ; but this Was not the point in the case, and appears to have been a dictum given without argument upon the question. The right to recover, how- ever, in such cases, appears to rest both on principle and authority. See Hunter «. Chandler, 45 Mo. 453; Philadelphia «. Given, 60 Penn. St. R. 136 J United States ®. Addison, 6 Wall. 391 ; Mott o. Connelly, 50 Barb. 516. 612 Jackson v. "Walker. In the Supreme Court of New York. MAT TEEM 1843. (Repoeted 5' Hill 27.) [^Influencing elections.'] An agreement by the defendant to pay the plaintiff $1000, in considera- tion that the latter, who had huilt a log-cabin, would keep it open for the accommodation of poMtlcal meetings, to further the success of certain per- sons who had been nominated for members of congress, &c., is illegal, and cannot be enforced. Error to the Superior Court of the city of New York. In the court helow, the plaintiff, in his declaration set forth that, in 1840, he erected a building in Broadway, in the city of New York, commonly called a log-cabin, in- tended for public and other meetings of the whig party, and for the sale of refreshments ; that he suffered a loss therein and was about to tear it down ; and that in con- sideration that he would suffer it to remain and be kept open for the benefit of the whig party, until after the elec- tion of members of congress and presidential electors, &c., to be elected in November of that year, the defendant promised to pay him $1000 on the 20th of November. On the trial it was proved, that the plaintiff built the log-cabin, in 1840, at an expense of $1600 to $1800; in August of that year, he said he would take it down, unless a certain sum were raised ; a subscription was opened, and nearly $200 were subscribed; the plaintiff and defendant then met, and the defendant told the plaintiff that "the log-cabin must not be taken down until after the election, that he," the defendant, " would not permit the whig flag across Broadway to be struck," and that he would raise the balance of $1000, or pay it out of his own pocket, by Jackson v. Walker. 613 (Influencing elections.) the 20th of N'ovember ; the plaintiff said, " he wished no ifs and ands about it, but wanted the money to be forth- coming for certain," and requested the defendant to give him his note; the defendant replied, that his "word was his bond," and said to the plaintiff, " I will pay you the $1000, out of my own pocket, on the 20th of November next ;" the plaintiff then agreed to it, and " the log-cabin was kept open until after the election, and was used by the whig party, for political meetings, and was the whig head- quarters, in a measure." It was kept open to promote the election of the electoral ticket in favor of Gen. Harrison, for president; and after the election it was removed. On this evidence, the plaintiff claimed to recover the $1000 ; the defendant moved for a nonsuit, on the ground that the contract was illegal, being a violation of the elec- tion law ; the motion was denied, and an exception taken. The defendant then insisted, that the jury had a right to determine, from the whole evidence, whether the contract was or was not within the meaning of the statute ; the court charged the jury that the contract was not within the statute, to which an exception was taken ; and there was a verdict and judgment for $1000; whereupon the defendant sued out his writ of error. Stevens, for plaintiff in error. Sherwood, for defendant in error. Bronson, J., delivered the opinion of the court. The first section of the act of 1829, "to preserve the purity of elections," is in these words: "It shall not be lawful for any candidate for an elective office, with intent to promote his election, or for any other person, with intent to pro- mote the election of such candidate, either, 1st. To pro- vide or furnish entertainment, at his expense, to any meet- ing of electors, previous to or during the election at which he shall be a candidate: or, 2d. To pay for, procure or 614 Jackson v. Walker. (Influencing elections. ) engage to pay for any such entertainment: or, 3d. To fur- nish any money, or other property, to any person, for the purpose of being expended in procuring the attendance of voters at the polls : or, 4th. To engage to pay any money, or deliver any property, or otherwise compensate any per- son for procuring the attendance of voters at the .polls: or, 5th. To contribute money for any other 'purpose intended to promote an election of any particular person or ticket, ex- cept for defraying the expenses of printing, and the circu- lation of votes, handbills and other papers, previous to any such election." The third section declares, that " every person offending against the provisions of this act shall be deemed guilty of a misdemeanor." Stat. 1829, 565, ch. 373. If, at the time the promise was made, it would have been unlawful for the defendant " to contribute money," for the purpose of preserving and keeping open the log- cabin, it is quite clear, that his promise to pay money for that purpose at a future day cannot be enforced. Now, to what end was the log-cabin to remain? The plaintiff tells us in the declaration, that the building, besides the sale of refreshments, was " intended and calculated/or pwi^ic and other meetings of a certain poUiical party, known and designated by the name of the whig party ;" and the con- sideration of the promise was, that the plaintiff would not tear down or remove the log-cabin, but would suffer the same to remain, and would keep or cause the same to be kept open, '■'■for the benefit of the said, whig party, until after the election" of members of congress, presidential electors, &c. The plaintiff then avers that he performed the agreement on his part; and so is the proof; the witness says, "the log-cabin was kept open until after the election, and was used by the whig party for political meetings, and it was whig headquarters, in a measure ; it was kept open to promote the election of the electoral ticket in favor of Gen. Harrison for president." The statute, after forbidding several things, declares .Jackson v. "Walker. 615 (Influencing elections.) that money shall not be contributed " for any other pur- pose, intended to promote an election of any particular person or ticket." It requires no argument, to prove that this money was to be paid to promote the election of particular persons, to wit, Gen. Harrison, and the whig candidates for congress, &c.; and a particular ticket, to wit, the elec- toral ticket in favor of Gen. Harrison for president, and the ticket for whig members of congress, &c. The parties intended to accomplish the very thing which the statute declares to be illegal ; no one can wink so hard as not to see it. Every contribution of money " intended to pro- mote an election of any particular person or ticket," is forbidden, except "for defraying the expenses of printing, and the circulation of votes, handbills and other papers, previous to any such election ;" there can be little doubt that large sums of money are expended upon elections for other purposes ; but the statute says " it shall not be law- ful" to do so, and the enactment should either be enforced or repealed. It is said, that the statute only forbids the contribution of money for corrupt purposes. But the statute says no- thing about corruption; it declares that the thing shall not be done ; with two specified exceptions, it provides, that money " intended to promote an election," shall not be contributed. The legislature evidently thought, that the most efiectual way "to preserve the purity of elec- tions," was, to keep them free from the contaminating influence of money ; they said, you may contribute money to pay for printing and circulating votes and information, but not for any other purpose. If this contract be void, it is said that money cannot be contributed to hire a room for holding political meetings. That is undoubtedly true, if the object be "to promote an election of any particular person or ticket." I will not discuss the policy of the law; the legislature have said that the thing shall not be done, and that is enough. Judgment reversed. 616 Jackson v. "Walker. (Influencing elections.) Under the Pennsylvania statute forbidding non-voters from appearing at the election for the purpose of distributing tickets, and of influencing the citizens qualified to vote, it has been determined, that the word "in- fluence," means using the party's endeavors, and that it is not neces- sary, in order to incur the penalty of the law, that such effort should have been successful ; for, said the court, in such case, the law would be a dead letter, and no conviction could ever take place, inasmuch as no citizen is compellable to declare how he has given his suffrage. Respublica v. Eay, 3 Yeates 65. In Tennessee, the treating of electors, with a view of obtaining their votes, is an indictable offence. State d. Rutledge, 8 Humph. 33. In Delaware, the statutes make a distinction between offering and promising a reward to an elector. State ». Harker, 4 Harrington 559. In England, the treating of a voter, with a view of influencing the election, renders it void; and in a recent case it was said by Willis, J., that a thimbleful given with that intent, will avoid the election, but such intent, to have that effect, must be clearly shown. 1 Chicago Leg. News 203. It has been held that, to vacate an election on the ground of intimidation and violence at the polls, if the election were not in fact arrested, there must be such a display of force as ought to have intimi- dated men of ordinary firmness. Harrison «. Davis, 2 Cong. Elect. Cas. 341. And see Bruce «. Loan, Ibid. 482. Under the act of congress of the 31st May 1870, § 19, it has been held, that an indictment for "unlawfully preventing certain qualified voters from freely exercising the right of suffrage" could be sustained, by proof that the defendant and others attacked a number of voters, waiting in line for their turn to cast their ballots, and expelled them from the room, though they afterwards returned and actually voted ; the offence was complete by the expulsion of the voters from the polls. United States ». Souders, 2 Abbott U. S. Rep. 456. 617 Lawrence v. Knight. In the Court of Common Pleas of Philadelphia. SEPTEMBER TERM 1861. (Reported 1 Brewster 67.) [^Injunctions.] A court of equity will not restrain, by injunction, a prothonotary from certifying to the board of return judges, election returns which are regular on their face, though averred, and admitted in argument, to be forgeries. This was a bill in equity praying for an injunction to restrain the prothonotary from certifying to the board of return judges certain election returns, purporting to be the returns of votes cast by soldiers in actual service, at a general election held on the second Tuesday of October 1861, for clerk of the orphans' court of Philadelphia, on the ground that they were mere forgeries. Hirst, for the plaintiff. Thayer, for the defendant. Ludlow, J., delivered the opinion of the court. The supreme court of Pennsylvania having to-day decided, at Pittsburgh, to grant the injunction prayed for by the bill filed by Robert Ewing, we cannot do otherwise than grant so much of the prayer of this bill as affects the right of the prothonotary to certify, and return judges to enumerate, the vote contained in a paper, purporting to be a regi- mental return, with the forged signature of "William SchimpfiUer appended thereto. "We are bound by what we consider to be the decision of the supreme court in banc upon this subject, and to that extent (without express- ing any opinion as to that portion of the bill) the prayer 618 Lawrence v. Knight. (Injunctions.) of these complainants is granted, on security being entered in the sum of $1000.* Other returns, on their face regular, being company returns, but asserted, and admitted in argument, to be forged, are also attacked in this bill, and the question now presents itself, whether we can, in such a case, grant relief in this form. As we read the opinion of the supreme court, this point is not touched, and therefore, with a pain- ful sense of the responsibility cast upon us, we proceed, as best we may, to determine that question. This bill, although it prays an injunction, and is filed upon the equity side of the court of common pleas, in efi'ect, desires us, in advance, in a court of equity, to settle a series of contested elections; and to determine, collaterally, the rights of certain persons who claim certain offices by virtue of color of title, as it may be called. Has a court of equity such a jurisdiction ? We think it must be manifest to the considerate and dispassionate reasoner, that this jurisdiction does not exist. 1. Because every point involved in this issue affects questions appertaining to contested elections, and the law declares the method by which such questions shall be settled. The bill declares that an election has been held, that false and fraudulent returns have been transmitted to the prothonotary, that he is about to transmit them to the return judges, and they are about to oast up the same and deliver and certify certain certificates of election. The whole difficulty arises because of an alleged series of frauds which may lead to contests. ISow, the legislature have declared in what method contested elections shall be settled. The prothonotary of the court is merely the agent to send these military returns to the return judges, and they are merely the agents to cast up these returns. It is true, that * The law provided for certifying "company returns," but there was no provision for making regimental returns ; and therefore, an injunction was awarded to restrain the certifying of such return, admitted to he fraudulent. Lawrence v. Knight. 619 (Injunctions.) the burden of the contest ought not, in point of fact, to be cast upon an injured person; but the law does not, and for obTious reasons cannot, provide for a contest until it has arisen ; if injustice be done, if an outrage have been perpetrated, the law then steps in, and by its appropriate tribunals, declares what shall be done. When the juris- diction of a competent tribunal attaches, its power is ample, and sweeps over the whole field of controversy ; if frauds have been perpetrated at any stage of an election, it at once ferrets them out, and having discovered them, destroys their effect ; without special reference to the acts of assembly regulating contested elections, it is enough to say, that in no case can a party be left without a remedy; and therefore, we are brought to the second reason why a court of equity cannot interfere, to wit : 2. Because this court cannot collaterally decide the right of a person or persons claiming an office or offices, under color, as it may be called, of title. To determine, in the present stage of this cause, that this or that return is fraudulent, is undoubtedly to settle now a collateral issue. That this may appear to be a self-evident proposition, look for one instant at the parties defendant in this bill ; here are specified the candidates for county, city, judicial and state officers ; the question presented now is, not which of these candidates shall receive the certificate of election or the commission, as the case may be, but whether certain returns, which may or may not affect the result, shall be sent to the return judges and be by them computed ; can any reasonable man doubt that that issue is purely col- lateral, and if collateral, can any equity lawyer doubt that a court of equity must withhold its powerful intervention? We have searched in vain for either an analogy or a pre- cedent which would justify us in thus acting. That this point may appear in a yet clearer light, let us for a moment look at the tribunails designated by law for the settlement of contested elections. If the seats of the law judges be contested, the assembly of Pennsylvania 620 Lawrence v. Knight. (Injunctions.) must settle the question ; if the seats of the members of the assembly be contested, each house must judge of the qualifications of its own members ; if the seat of the clerk of the orphans' court, or any of the municipal officers, or of the sheriff, be contested, either the court of common pleas or the court of quarter sessions, as the case may be, must determine the result. Suppose, in this condition of affairs, a court of equity steps in, and intercepts a return or returns in the hands of either the prothonotary or the return judges, and hereafter the appropriate tribunals de- clare that this court made a mistake, and in fact reverse ■ its judgment, who will say that the action of this court was not only collateral, but that the tribunal settling the controversy had not a perfect right to disregard its deci- sion ? Thus it will be seen, that we reach an absurd result ; for while this court, sitting in equity (having granted a special injunction), must and is proceeding to determine finally whether certain returns are forgeries, the tribunal fixed by law to settle the contested election decides the question and ends the controversy. 3. This view of the subject leads us to declare, thirdly, that should we assume this jurisdiction, we cannot grant final relief. If this proposition be correctly stated, the question is settled beyond the possibility of a doubt. That this view is sound will appear by a little reflection on the subject; suppose we grant this motion, the case does not end here ; we must go on and determine finally the questions presented, to wit, whether these returns are or are not fraudulent ; and then we must grant what is called the perpetual injunction. Now, how can this deci- sion affect the right of any tribunal having jurisdiction of a contested election, to decide the question? and how, we ask, can this court enforce any decree it may make? Can we declare to the assembly of Pennsylvania, in a contested election, involving the rights of the law judges of this county, that they shall not compute this or that return, even though they should declare the return genuine, when Lawrence v. Knight. 621 (Injunctions.) the law says they shall? Caa we, to the legislature, declare, you shall not decide upon the qualifications of the members of your respective bodies, when the law says you shall? Can we, sitting in equity, declare to the courts of common pleas and quarter sessions of this county, you shall not, in any event, compute these returns in any con- test which may arise before you, when the law says you may ? Can we declare to the select and common councils of this city, you shall not determine the qualifications of your own members, when the law says that you alone shall do it? If, to each of these inquiries, we must answer in the negative, what an improper and unjustifiable exer- cise of power would it not be, for us to do that which, on the further hearing of this cause, must be either undone or rendered entirely useless ! 4. A court of equity cannot entertain this jurisdiction, because it is impracticable, and would lead to a complete overthrow of a system of laws framed for the purpose of settling all controversies of this- nature, and founded upon correct principles of public policy. If the complainant in this bill may have this relief, so may every other citi- zen who supposes his rights have been destroyed, and who may assign any legitimate equitable ground for relief. What then becomes of the duties and responsibilities of the prothonotary and return judges at every election? If one return may be, so to speak, impounded, so may every other ; the court must take time to determine the question presented by every bill, and the return judges must either ' delay action or compute but a part of the vote. G-o one ' step further : the assembly must delay its consideration of a contested election for the law judges, so must the legislature for assemblymen, and the courts of common pleas and quarter sessions for prothonotaries, municipal officers and the sheriff. If these bodies must be thus hin- dered in the performance of their duties, the commissions of the judges will expire by limitation and vacancies will occur, the sitting members of the legislature will continue 622 Lawrence v. Knight, (Injunctions.) in office, tKe sheriff who obtains his commission will con- tinue to serve, and the present clerk of the orphans' court must remain in office until his successor is qualified and commissioned. To state this proposition, with its illus- trations, is to show, not only that the thing is impracti- cable, but that the wildest anarchy will follow, and simply because, by an ingenious method, the whole sub- ject has been withdrawn from a legitimate tribunal, and cast upon another not intended by law to be clothed with any such jurisdiction. If, to all that has been said, it be objected, that a con- test will only protract the strife, and. that the terms of office will expire before it is settled, we answer, in the language of Judge Sergeant, in Hagner v. Heyberger, 7 "W". & S. 107, "it is not for us to be wiser than the laws, and for imiaginary (nor we may add, real) inconveniences, to abrogate or evade the express enactments of our legis- lature." "We have been, for the most obvious reasons, exceedingly anxious to reach and destroy what, in one instance, is alleged to be a palpable fraud. The whole danger has been that, amid what may perhaps be termed a just popular excitement, we would extend our power beyond its legitimate limit; but, upon deliberate reflec- tion, we have determined to close this opinion in the lan- guage of Chancellor Kent, in Attorney-General v. Utica Insurance Co., 2 Johns. Ch. 389 : " The process of injunc- tion is too peremptory and powerftil in its effects-, to be used in such a case as this, without the clearest sanction ; and I shall better consult the stability and utility of the powers of this court by not stretching them beyond the limits presented by the precedents." Injunction refused. The limits of the jurisdiction of courts of equity to interfere by in- junction in election cases can hardly be deemed fully settled, in view of the conflicting decisions, resulting, perhaps, from the great tempta- tion to a partisan judiciary to use this strong arm of the law to further Lawrence v. Knight. 623 (Injunctions.) the views of their own political adherents. In Lawrence v. Knight, the court riefused to enjoin the prothonotary from certifying or the return judges from counting, certain military returns, regular upon their face, but admitted on the argument to be mere forgeries, and this too, though asked for in favor of the candidates of the political party of which the learned judge who delivered the opinion was an honored member. So too, the supreme court .of Pennsylvania, in Hulseman v. Rems, 41 Penn. St. R. 396 (ante 814), refused to enjoin parties holding certificates of election based upon similar returns, which were evidently forged, from making use of the same ; and this decision also, was against the candidates of the party to which a majority of the judges of that court were attached. But in MiUer v. Lowry, 5 Phila. 302, a majority of the same court that had decided Lawrence «. Knight, regardless 6f their former decision, and utterly ignoring the authority of the supreme court in Hulseman v. Rems, enjoined a candidate who had received a certifi- cate of election, regular on its face, from making use thereof, on the ground that it had been fraudulently issued by the return judges, though it was not shown that the party holding the certificate was any party to the alleged fraud; and this injunction was granted in favor of the candidate who was in political accord with the majority of that court. And see Peck «. Weddell, 17 Ohio St. R. 271. An injunction vrill not be granted to restrain the holding of a mnrii- cipal election, directed by statute, on the ground of the unconstitution- ality of the act ; a wrong resulting from an election must be tried before the proper tribunals, or by testing the right of the oflScers elected, by quo warranto. Smith v. McCarthy, 66 Penn. St. R. 359. But an injunc- tion will lie to restrain the receipt of votes from a class of persons who are clearly disqualified. Mcllvain «. Christ Church of Reading, 28 Leg. Int. 126. So, where two bodies of men claimed tO' be the common council of the city of Philadelphia, an injunction was granted in favor of the one having the prima facie title, by virtue of the regular certifi- cates of election, to restrain the other body from interfering with the organization. Kerr ». Trego, 47 Penn. St. R. 392 ; 5 Phila. 229 (post 683) . Where the supreme court on certiorwri has affii'med the decree of the court below in a contested election case, there having been nothing before them but the record, an injunction will not be granted to restrain further proceedings on the merits in the court below, under a petition for a review which was pending and undetermined, when the certiorari was sued out. Gibbons s. Sheppard, 3 Brewst. 118 (ante 558). 624 Lamb v. Ltnd. In the Supreme Court of Pennsylvania. JANUARY TEEM 1863. (Eepoeted 44 PENrfSTiiTANiA State Reports 336.) [^Mandamus to elect.'] A mandamua will lie to compel the select and common councils of a city to assemble in joint convention and elect municipal officers, as required by the charter of the city. It is no valid reason, on the part of the select council, for refusing to meet the common council, that members of the latter body, not legally elected, have been retained, and others, legally elected, have been fraudu- lently excluded, since each body is the sole judge of the election and qualification of its own members. This was a petition of Owen Lamb and others, members of the common council of the city of Philadelphia, for a mandamus to compel the members of the select council to assemble in joint meeting with the common council, at the next stated meeting of councils, and proceed to the election of certain municipal officers required by the charter of the city. The petition set forth that it was provided by the 50th section of the act of 2d February 1854, that it should be the duty of the councils of the said city to provide, by ordinance, for the establishment and regulation of all the departments instituted by that act and other laws in force in said city, and such others as might, from time to time, be needful ; and that by the 28th section thereof it was provided, that the councils should, in joint meeting, and by viva voce vote, appoint all the heads of departments, not elective, who should serve for such periods as might be fixed by ordinance. That by certain ordinances of said city, provision was made for the establishment and regula- tion of the departments of highways, city property and Lamb v. Lynd. 625 (Mandamus to elect.) water; and for the election of a chief commissioner and two commissioners of highways, commissioner of city property, chief engineer of water-works, commissioner of markets, superintendent of city railroads, agent of Girard estate and superintendent of Girard estate ; to which ordi- nances the petitioners craved leave to refer. That by an ordinance passed the 31st January 1862, it was provided, that an election should be held for heads of municipal departments by the select and common councils assembled jointly in convention, on the second Thursday in February in each year ; and that the said officers should hold their respective offices until their successors should be duly elected and qualified; but nothing therein contained should be deemed to extend the terms of such officers beyond the month of February in any year. And that by virtue of the said act of assembly and ordinance, it became the duty of the select and common councils to assemble jointly in convention, for the purpose of electing said officers, on the second Thursday of February 1863. That the common council did, at their stated meeting held on the 5th February 1863, pass a joint resolution providing for the assembling of the said joint convention of councils, according to law, and the same was duly transmitted to the select council, which postponed the consideration thereof until their next stated meeting, which was held on the 12th February, the day on which the elections aforesaid were by law directed to take place ; on which day, the select council further postponed the consideration of said joint resolution^ and adjourned with- out taking further action thereon ; and at the next stated meeting of the said select council, held on the 19th, a joint resolution to meet common council in joint conven- tion for that purpose, was rejected by the votes of the thirteen members thereof named as defendants ; that on the said 19th February, a joint resolution was passed by common council, providing for a joint convention on that day, to be held for the purpose of electing said municipal 40 626 Lamb «. Ltnd. (Mandamus to elect. ) officers, and duly transmitted to select council, and the same was postponed in said select council on the same day ; whereby vacancies had occurred, in the said municipal offices, and it was the duty of councils to meet in joint convention for the purpose of electing- persons to fill the same, before the first day of March ensuing, when the terms of office of the theii incumbents would expire. The petitioners further showed that they were members of the common council of the said city, and also residents and tax-payers thereof, and that the select council con- sisted of twenty-five members. That the said common council were duly organized on the first Monday- of Jan- uary 1863, and had since transacted the public business, and had concurred with select council in passing ordi- nances which had been approved by the mayor, and had assembled in joint convention with the select council for the election of directors of certain railroad corporations, according to law. That a majority of the members of the said select council, to wit, the thirteen defendants, in- tended and had so declared, as the petitioners averred on information and belief, not to assemble in joint convention as aforesaid, to perform the duty imposed upon them by law, and that it was their purpose to prevent the election of said officers as required by law, to the great detriment of the city, and contrary to their plain duty as select coun- cilmen in the premises. They therefore prayed that a writ of mandamus might issue, &c. LowKiE, C. J., delivered the opinion of the court. The performance of official duty may be compelled by the pro- cess of mandamus; this is not disputed. By the corporate law of Philadelphia, it is made the duty of the select and common councils to meet in joint meeting, and appoint the heads of departments, not elected by the people ; and by ordinance, the time for such joint meeting has been fixed. The duty is, therefore, perfectly defined, and ought to be performed ; but a majority of select council have Lamb v. Lynb. 627 (Mandamus to elect.) refused to perform it: why should they not be compelled to obey the law, and do their duty ? Those of the defendants who attempt to excuse them- selves, set up, that it is not their duty to obey the law, because, as they say, three persons, Isaac Leech, "William Meeser and Thomas J. Barger, have been fraudulently retained as members of the common council, though they are not lawfully members thereof, and that the majority have fraudulently excluded two who ought to be mem- bers, McCurdy and Duffield, and this, for the purpose of obtaining a majority in favor of one political party, so as to control the elections that were to take place in the joint meeting, and that the defendants have refused to meet in joint meeting, in order to oppose and overcome the said fraudulent attempts, and to compel the common council to correct their organization. We must, of course, understand the defendants as pre- senting these allegations as a legal justification of their conduct, and therefore, they must be taken as asserting a legal right to decide who are the proper members of the other branch of the council, though no part of the evidence can ever be properly presented to them, and though the very law under which they obtain their own ofiicial posi- tion, tells them plainly that each branch is to be the judge of the qualifications and election of its own members. They have not thought of this properly, or they would not have raised this dispute. We have no rule to judge the conduct of the defendants by, but the law; they can have no other rule than this, to guide their official conduct; in affairs wherein they have no official right or authority to decide, they can have no official right to question ; officially, they must treat as right, what they have no authority to correct ; if this be not true, we have no difference between usurpa- tions and legitimate authority. And this is perfectly con- sistent with true social liberty, for it is the very nature of man in society, to form habits, customs and laws that are to regulate social conduct, and these naturally vary accord- 628 Lamb v. Lynd. (Mandamus to elect.) ing to different degrees and forma of civilization. True and natural social liberty is, therefore, a liberty regulated by law, and law must be the social rule of conduct, though it is very far from applying to all social conduct; we are free under it, because and in so far as it fits us ; and we are free outside of it, in the thousands of acts of our lives, which it does not profess to regulate. But official con- duct is never free from law ; it is always regulated more or less straitly; it must follow the path prescribed to it; the law of society, and not individual will, is the measure of its freedom ; and it is only thus that individual liberty is secured against official arbitrariness. This plea of the defendants shows, that they are at- tempting officially to meddle with functions that do not officially belong to them, and to control the action of others over whom they have no authority. They refuse to join those whom the law has appointed to act with them in a particular business, because they think that the law, as actually carried out, has not rightfully appointed their colleagues in the business ; they refuse to do their duty, because, in their misapplied judgment, others have not done their duty well. Thus, they undertake tq, dic- tate duty to others, and guide their conscience, instead of carefully keeping their own ; this is a very common fajalt, and no doubt will continue to be, until men become better instructed in the law of liberty, and we mean no censure in exposing it. !No doubt, the defendants have satisfied, their conscience in so acting against law, by appealing; to some principle which they suppose to be more obligatory than civil law ; but they ought to know, that it is by civil law only that their official duties can be defined, and by civil law we must judge them. If, therefore, they may appeal from that law, we have no tribunal that can try. their appeal, and there can be no earthly one to try it, except that which is found in wars and revolution — ^human force ; and surely this is not a more intelligent tribunal than those which the law provides, imperfect as they may Lamb v. Lynd. 629 (Mandamus to elect.) be. An appeal from the law of official duty, except to the law-making power, can be nothing else than usurpa- tion or rebellion or revolution; and we are sure the de- fendants mean none of these things. In all cases of usur- pation and rebellion and revolution, and in all partisan disputes and contests, both parties appeal to other prin- ciples than those expressed by the law, and yet the differ- ences continue, until settled by some definite law, very much to the dissatisfaction of men of exitreme views. Let men in and out of office criticise and censure official conduct according to the dictates of their skill and pru- dence ; the law allows this ; but let them not attempt to correct civil disorders, by a revolution of the law of their office. It is not pretended, that there is no common, council known to the defendants, for it has been acting, for a con- siderable time, in concert with the select council, in the passage of ordinances, and even in joint meeting for the election of certain functionaries ; the reason for their stop- ping now may be connected with the outside pressure spoken of in the return. And now we may add, that the excuse we have been considering is guilty of the fault of attacking title to office, in a collateral way, which, it is well known, is never allowed. Again, the defendants seek to excuse themselves for disobeying existing law, by saying, that they are about to propose a change of the law, and they offer some important reasons in favor of the change, with which we have nothing to do. But if, because they propose a change of the law, they cease to be bouiid by it, then the individuals composing the law-making power, may always be exempt from law, because they may always allege a purpose to change, which is absurd; when they actually abrogate it, they are free from it, and not till then ; they may change the law now, and that will free them from its duty; but the law is in force now, and declares their present duty. We cannot sustain either of the excuses offered. 630 Lamb v. Lynd. (Mandamus to elect.) We think, moreover, that the defendants ought to have verified their return by their affidavits ; but that is now an unimportant question in the case. Peremptory mandamus awarded. The doctrine that a municipal body that is authorized by statute to judge of the election and qualification of its own members, is the ex- clusive judge thereof, and that the courts have no jurisdiction in the premises, is re-afflrmed in Commonwealth «. Leech, 44 Penn. St. B. 333; and the same conclusion was arrived at in Commonwealth v. Longhlin, 30 Leg. Int. 100; and Commonwealth v. Barger, Ibid. 101. (And see Commonwealth v. Garrigues, 38 Penn. St. E. 9 ; Commonwealth v. Reed, 18 Pittsburgh Leg. Journal 131.) But in none of these cases is there any reference to the older decision of the supreme court of Pennsylvania, in Commonwealth®. McCloskey, 3 Rawle369 (ante 196), where it was held, that such a grant of power did not oust the jurisdiction of the courts in quo wa/rranto; and the same principle was involved in Commonwealth v. Small, 36 Penn. St. R. 31. The modern decisions appear to be founded on the idea that, as the two branches of the legislature are the judges of the election and qualification of their respective members, to the exclusion of the judicial department, therefore, the grant of a similar power to a municipal corporation, will carry with it a similar exemption from judicial revision ; but it must be remembered, that the power residing In the legislative bodies is granted to them by the con- stitution, and that, being a co-ordinate branch of the government, their decision upon a question clearly within their jurisdiction, must be necessarily exclusive ; a municipal corporation, however, is the mere creature of the law, and to hold that a grant to them of the power to judge of the election and qualification of their own members, necessarily carries with it the constitutional privilege of the legislature of being exempt from the judicial supervision of the courts, would appear to be a strained construction of the law. See Kerr v. Trego, 47 Penn. St. R. 895 (ante 635). And the point can hardly be deemed a settled one, until Commonwealth v. McCloskey be formally overruled. The power of a court of last resort to overrule a solemn decision of their own, made upon full argument, is, at best, of doubtful propriety ; it is well known that, in England, the House of Lords does not possess the power to overrule Lamb v. Ltnd. 631 (Mandamus to elect.) a former decision of the house, the only remedy being the passage of an act of parliament, changing the law ; and it would add much to the respect which ought to be entertained for such a tribunal, if our own courts of last resort were subject to a similar restriction. We have had some lamentable instances, of late years, of the overruling of former solemn decisions, on a change in the political majority of courts, which has much lessened the respect formerly entertained by the people and the profession for their judgments. If the president and board of trustees of an Incorporated town have neglected to give the requisite notice for holding the annual election for the new board, within the year for which they were elected, as required by law, and refuse to do so afterwards, they will be compelled to per- form theirduty, by mandamus. People, v. Town oL Fairbury, 51 111. 149. (f^^^ ^Kjt ^f^-^^^ ^ 632 Kere v. Trego. In the Supreme Court of Pennsylvania. JANUARY TERM 1864. (Repoeted 47 Pennsylvania State Reports 292.) \_Organizati(m of municipal legislative hodies.'\ The test for ascertaining which of two divisions of a municipal legisla- tive body represents the legitimate social succession, is, which of them has maintained the regular forms of organization, according to the laws and usages of the body, or, in the absence of these, in accordance with the laws, customs and usages of similar bodies, in analogous cases. Where an ordinance of the common council of Philadelphia provided that the clerk and assistant-clerk should continue in office until the organi- zation of the new council, and until their successors should be duly ejected ; and at the organization of a new council, there were present twenty-three members whose term of office had not expired, including the president of the preceding year, who with the clerks were in their usual places at the time appointed for the organization of the new council ; it was held, to be the right of the said officers to organize the council by first calling the roll of the members holding over, and then requiring the members elect to present their certificates of election, that their names might be enrolled ; and that any interference therewith was irregular and improper. The certificate of election, sanctioned by law or usage, is primd fMie evidence of title to the office, and can only be set aside by a contest in the forms prescribed by law. Any interference with the due organization, by a division of the body, claiming to be the common council, will be restrained by injunction. This was a bill for an injunction exhibited by Wilson Kerr and others against Charles B. Trego and others, set- ting forth that the complainants had been, since the first Monday of January 1862, members of the common coun- cil of the city of Philadelphia, and that their terms of office would not expire until the month of January 1864 ; that "Wilson Kerr was duly elected president of the said body on the first Monday of January 1862, and had since acted as such. That it was the duty of the said continuing members of council to receive, at the city-hall, on the Kerr v. Trego. 633 (Organization of municipal legislative bodies.) first Monday of January 1863, the new members thereof, with a view to the due organization of the common coun- cil ; and for that purpose the complainants, together with the clerk and assistant-clerk of the preceding year (the said Wilson Kerr acting as president), met at the time and place appointed by law, and admitted and received certain members of the said council, who presented themselves for that purpose, and who had been duly elected as such at the last general election, and with the newly-elected mem- bers, composing a quorum of the whole body, duly organ- ized the said body as the common council of the city of Philadelphia. That ten of the defendants, improperly and illegally acting 'ih concert with the other defendants, by a pre- arranged plan, did, at the time and place appointed for the assembling of the said body, and whilst the said Wilson Kerr was in the chair, and duly acting as president, and whilst the other complainants were duly assembled to re- ceive the newly-elected members, clamorously and illegally interfere with the proceedings of the complainants, com- posing- the said common council, and did, by disorderly and violent outcries, proclaim Charles B. Trego, one of the defendants, president, and Gordon and Stewart clerks of their meeting or assembly ; and did attempt to and did interrupt the regular and orderly transaction of the busi- ness of the said common council, and by such conduct did endeavor to prevent the complainants from duly acting in the matter of deciding upon the qualifications of persons claiming to be members of common council, and of con- sidering and deciding upon the claims of certain contest- ants to seats therein. And at the next stated meeting, the defendants did again intrude themselves into the ■eouncil-chamber, and continue to act as and call them- selves the common council of said city, and intended as such to pass laws and ordinances for the government thereof. And the defendants threatened and intended to continue so to intrude, and to interfere with and prevent 634 Kerr v. Trego. , (Organization of municipal legislative bodies.) the orderly and lawful transaction of the public business. That the defendants threatened and intended, in pursu- ance of their said usurped and illegal action, to pass reso- lutions and ordinances appropriating the public moneys, and to direct their clerk to draw orders upon the city treasurer, and to present such orders to the city controller for allowance and payment out of the city treasury. The complainants moved for a preliminary injunction to restrain the acts complained of in the bill. The motion was heard, on affidavits, the defendants contending that, in consequence of frauds in the election of certain mem- bers, recognised by the complainants, the Kerr branch of the common council had not a quorum of members, and were, therefore, without power to elect officers or transact business ; that Mr. Kerr had no authority to call council together ; and that the printed list of members prepared by the clerk, containing, as it was alleged, the names of at least two persons who were not legally elected, showed an intention to admit them as members of council. Porter and Wharton, for the complainants. Sellers^ Gibbons and Gilpin, for the defendants, LowRiE, C. J., delivered the opinion of the court. On account of the immense importance of this case to the city of Philadelphia, we all consented to sit together at the hearing of this motion for a preliminary injunction, hoping that we might thus bring to a speedy termination this very unpleasant difficulty. We have heard and care- fully considered the case, and now proceed to pronounce the judgment of the law upon it, without expressing any opinion upon the merits or demerits of any of the parties to it, beyond what is necessary to the decision of the very point of the controversy; we shall neither approve nor disapprove here what we have no authority to judge. Some objections were made to some of the minor details Kerr v. Trego. 635 (Organization of municipal legislative bodies.) of the bill, but we say nothing about them, for they may be amended at any 'time, and it is sufficient, on this mo- tion, that the main features of the case are so fully set forth in the bill and affidavits as to justify the motion. It is clearly alleged and shown, that there are two bodies which claim to be regularly organized as the common council of the city, and each is proceeding to act as such, to the great detriment of the public interests; this is the wrong that is to be remedied ; one or the other party must be wrong ; they cannot both be right. 1. Have the courts authority to redress this wrong? We think they have. All bodies, except the supreme legislature, are under law, and therefore, for all transgres- sion 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 cannot 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 sub- ject 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. 2. May the wrongful body be restrained from acting, by 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 coufu- Kerr v. Treso. (Organization of municipal legislative bodies.) sion, affecting all its members and all its creditors, we can think of nia better remedy than this, for staying the con- fusion that would be caused by two opposite parties pre- tending to act as 'the society. It is the very remedy usually adopted, when churches divide 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 pur- pose 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. 3. 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; T)nt 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 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 the interests of the public alleged to be committed to it, shall be protected against the usurpation of the other. We de- cided a similar principle in Mott v. The Railroad, 30 Penn. St. R. 9, and we need say no more about it no'W'. This case is, therefore, regularly before us, and we proceed to the consideration of it, premising that there is no mate- rial 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. 4. In all cases of this kind, iat least, in all bodies that are under law, the law is, that where there has been an authorized election for the office in controversy, the cer- tificate of election, which is sanctioned by law or usage, is the primd facie written title to the office, and can be set aside only by a contest in the form "prescribed by law ; this is not now disputed. No doubt, this gives great power Keek v. Tre«o. 637 (Organization of municipal legislatiye bodies.) to dishonest election officers, but we know no remedy for this, but by the choice of honest men ; when party fealty is a higher qualification than honesty or competency, we must expect fraud and force to rule, and a man must be an Ajax or a Ulysses to be qualified for office. 5. On the division of a body that ought to be a unit, the test of which represents the legitimate social succession is, which of them has maintained the regular forms of organization, according to the laws and usages of the body, or, in the absence of these, according to the laws, customs and usages of similar bodies in like cases, or in analogy to them. This is the uniform rule in such cases ; it is always applied in the case of church divisions, and was so applied, by us three times, last year, in the church cases already alluded to. The courts can never apply it to divisions in the supreme legislature, because that body is sub-, ject to no judicial authority, and cannot be ; they, too,, ought to adhere to this rule, for order and regularity are always worthy of respect, and especially so, in cases where there is no authority that can enforce their claims. But, we need not dwell on this point, for it is admitted, that, this rule is the test of legitimate organization. 6. Judging by this rule, was the Kerr body legitimately organized? We think it was. The undisputed facts are, that there were twenty-three members, including the pre- sident last elected, whose terms had yet a year to run ; that the clerk and assistant-clerk were still, in office, having been elected under a yet existing ordinance of 5th May 1855, § 6, that declares, that they shall continue in office until the organization of a new common council, and until their successors shall be duly elected; that on the day and at the hour appointed by law for the organization of the new council for this year, the president and clerks elected last year were in their usual places, and then and there proceeded first to call the roll of all the members whose terms of office had not yet expired, and then to call on the new members to present their certificates of 638 Kerr v. Trego. (Organization of municipal legislative bodies.) election, that their names might be enrolled. It seems strange to us, that any one should doubt the strict regu- larity of this proceeding. It has the sanction of the common usage of every public body into which only a portion of new members is annually elected ; it is the. periodical form of re-organizing the select council and the senate of the state, and also the form of organizing the senate of the United States on the meeting of a new con- gress, when the vice-president does not appear, and the last president pro tempore does; and we understand this custom to be uniform throughout the United States, though this is not very important. And when there is a president whose term as a member has expired, then the functions of the clerks continue, and they, in all cases, act as the organs of re-organizing the body, and continue to hold office, until their successors are chosen and qualified ; our state and federal houses of representatives are illustra^ tion enough of this. So universal is this mode of organ- izing all sorts of legislative and municipal bodies, that all departures from it can be justified only as founded On special and peculiar usages, or on positive legislation. "Whenever this form is adhered to, a schism of the body becomes impossible, though the process of organization may be very tardy. This council has existed only one year in its present form, and therefore is without any binding usage of its own on this matter. In all cases where part of the public body remains, and is to be completed by the reception of new members, it remains as an organized nucleus, and in its organized form, it receives the new members, and then proceeds to the election of new officers, if any are then to be elected. The old nucleus is not dis- solved by the incoming elements, but these are added to it, and then the whole body proceeds to the exercise of all its functions. 7. It is objected, that a rule that attributes so much power to the officers of the previous year, gives them an advantage which they may use arbitrarily and fraudulently Kerb v. Trego. 639 (Organization of municipal legislative bodies. ) against the new members, so as to secure to themselves an illegitimate majority. 'No doubt, this may be so ; but no law can guard against such frauds, so as to entirely pre- vent them, just as it cannot entirely prevent stealing and perjury and bribery; the people are liable to such frauds at every step in the processes of an election or organization. But so much the more need for order and law in this part of the process ; the law can dictate that, though it cannot furnish honesty and sound judgment to the actors in it. That the law and order which we have announced have existed so long and so generally, is proof, at least, that they are better than no law at all. 8. "Was the Trego body regularly organized? Because both cannot be regular, and the other is, this, of course, cannot be so. But the fact appears clearly and positively, that it was not regularly organized ; as the regular officer was proceeding to organize, some one moved, with a loud voice, that Isaac Sulger should act as clerk, and the same voice put the vote, and it was carried by those who liked the motion, and Isaac Sulger proceeded, as temporary clerk, to organize the party to w^ich he belonged; all the other members treating this proceeding as disorderly ; and so it was: in such matters the race is not to the swift, nor the battle to the strong or loud-voiced, but to the orderly. The proceeding was opposed to their own written law with regard to the clerks, and to common usage otherwise, as we have already explained. This is so much like the disorders that occurred in the house of representatives in 1838, jand produced a dangerous schism there, which lasted several weeks, that it hardly needs an opinion from us to condemn it. The disorderly body in that case was dissolved by the force of public opinion, and the members returned and took their places in the regular body, which, by their own fault, they had no hand in organizing. We allude to the merits of that case only in so far as they relate to the order of the pro- ceeding, which is the point here. 640 Kerr v. Treao. (Organization of municipal legislative bodies.) 9. It is objected, that the plaintiffs have no equity to. support this motion, because, as the defendants believe, they intended to use their power fraudulently, so as to admit persons not elected, and to- exclude some that were ; and the principal evidence of this purpose is, that the clerk had procured printed slips containing a list of all the members, including the disputed members of the Kerr side, and excluding one on the other side, who had been, it is said, wrongfully removed. We cannot say that all this is a bar to the motion ; for the right to it does not depend upon the merits of the nominal parties to this suit, but on the right of the public to have their regular organ- ization protected, so that the public business may proceed with security and certainty. Moreover, we cannot con- demn the course of the clerk ; we suppose it is not unusual for the clerk to prepare such lists for such, an occasion ; and we cannot say that there was any fraud in them, without deciding upon the election of some of the mem- bers, which is beyond our authority* in this proceeding. Possibly, the result of this view of the law will be, that the Kerr body will make an unfair use of their power, in the reception of the other members, as has been sug- gested; for each party charges the other with having ad- mitted members that were not duly elected, and the learned counsel here have not denied this. But we know of no cure for this, but the improvement of our human nature ; this court cannot prevent it, without an unau- thorized interference with and direction of the organiza- tion of the body; we must trust them, where the law trusts them. We declare which body has proceeded in regular form, and having done so, we may not say how it shall act afterwards ; it has a law directing that ; we need not even say how far the act of organization has proceeded; it was regularly commenced and carried on, and no irregular body can be allowed to interfere with it, at any stage of its work. And we can see no pro? priety in our interfering to save those who have initiated Kerr v. Trego. 641 (Organization of municipal legislative bodies.) an abortive revolution, from the temporary loss of power, which may possibly result from their defeat. It may be, that they have passed the time for contesting disputed seats, but we cannot help that ; we did not make their election law, and we cannot alter it ; and equity can hear no one who alleges his own wrong as a ground of relief. It is not possible for us to impose terms wisely, without trying ourselves all the disputed seats, which, as we have said, we cannot do. If there were before us a yet undeter- mined question, the determination of which might change the result, and restore the other party, we would impose terms for speeding the trial of that question, as we did, last fall, in the sheriff's case ; but there is no such ques- tion in reserve here. The efficiency of our action is in the declaration that the Trego organization is without right, and the granting of the injunction is little more than the form of putting this declaration on record. Injunction awarded. Read, J., dissented, 5 Phila. 229. The legislative precedent of 1838, referred to by tbe learned judge in his opinion, constitutes the most remarkable attempt to overthrow the legitimate state government, that has occurred in the political history of Pennsylvania. The facts preceding and growing out of the organi- zation of the house of representatives in that year, are succinctly and plainly stated in a report made to the house, on the 18th June 1839, by a committee of investigation, through their chairman, James Eoss Snowden. From this report we learn that, owing to dissensions in the democratic party, at the election of 1835, Joseph Ritner was elected governor, by a minority of the people of the state ; that in 1838, the party in power sought, by every means, without regard to fairness or honesty, to perpetuate their hold upon the state government; and the general election having demonstrated the fact, that David R. Porter had received a majority of the popular vote for governor, and that the democratic party had elected a majority of the house of repre- 41 642 Keer v. Tbego. (Organization of municipal legislative bodies.) sentatives, a corrupt conspiracy was entered into by certain high offi- cials, to defeat the will of the people, by organizing the house of repre- sentatives with a majority of spurious members, and with the assistance of the senate (which contained an adverse majority), and the concurrence of the governor (who held over for a few weeks after the meeting of the legislature), to contest the election of Governor Porter, to elect Thaddeus Stevens to the office of United States senator, to elect a state treasurer and canal commissioners, and if they could not succeed in so moulding the returns for governor as to declare Joseph Ritner re-elected, then to pass laws by which the patronage of the incoming governor would be, in a great measure, taken away. In pursuance of this conspiracy, Thomas H. Burrowes, secretary of the commonwealth, as chairman of the state central committee, shortly after the general election, issued an address, to the friends of Governor Ritner, in which he exhorted them "to treat the election as if they had not been defeated, and in that attitude abide the result." It was evident, that the organization of the house of representatives depended on the returns from the county of Philadelphia, and to this the conspirators turned their immediate attention ; the grossest frauds had been practised at the election in the district of the Northern Liber- ties (under the registry law then in force), in consequence of which the board of return judges, composed of seventeen members, after a full investigation, rejected the returns from that district, which, however, made no difference in the result of the election, so far as regarded sena- tors and members of the house of representatives, and the majority of the board, consisting of ten members, made out and signed a certificate of election for the persons appearing to have the highest number of votes,, after which they adjourned sine die. During all this time, and up to the adjournment, no disposition was manifested by the minority judges to make out separate returns, and when the adjournment took place,. no such intention was expressed ; but at a subsequent period of the same day, six of these minority judges convened in another part of the build- ing, and having procured the attendance of one of the clerks, made out other returns, in which, however, they did not certify that their can- didates were elected, but that they appeared " to have received the numr ber of votes set opposite their respective names." These returns thus clandestinely and fraudulently made out, were immediately handed to John G. Watmough, the sheriff of the county. Kerr v. Tbego. 643 (Organization of municipal legislative bodies.) and by him forwarded to Thomas H. Burrowes, the secretary of the commonwealth, by a locomotive prepared for the occasion. Though the sheriff affected to consider these the true returns, he acknowledged in his testimony before the committee, that he was cognisant of there having been another return made out by a majority of the judges, in the mode pointed out by law, and also that he knew the fact that the democrats had a majority in the county of Philadelphia. The returns of the majority judges were disposed of as directed by law, one copy being deposited in the prothonotary's office, and another (under a sealed cover, directed to secretary of the commonwealth) deposited in the nearest post-offlce; these returns duly reached ike secretary, by course of mail, and were in his possession previously to the meeting of the legislature. Yet, with a full knowledge of all these facts, Thomas H. Burrowes, the secretary of the commonwealth, at the assembling of the legislature, withheld from both houses the returns of the majority judges of the county of Philadelphia, and sent in the niinority returns only; At the time appointed for the assembling of the legislature, Francis R. Shunk, the clerk of the former house of representatives, proceeded to organize the house, in accordance with the immeniorial usage of the commonwealth, when the persons named in the minority returns from the county of Philadelphia, appeared and claimed their seats as mem- bers of the house ; the minority returns sent in by the secretary of the commonwealth having been read by the clerk, one of the members elect from the county of Philadelphia presented a copy of the returns signed by the majority judges, duly certified by the prothonotary, which was read by the clerk in connection with the minority returns received through the channel of the secretary's office. In the course of these proceedings, Thaddeus Stevens, a member elect from Adams county, who held a similar certificate of election to that presented by the mem- bers from Philadelphia, rose and made a motion (contrary to the prac- tice observed in the organization of the legislature of Pennsylvaiiia, since its existence as a commonwealth) that tellers should be appointed for the purpose of electing a speaker ; a departure from the custom so' long prevalent of calling upon the clerk of the former house to superin- tend the election of speaker, and to announce the result. Mr. Stevens himself put the question, decided his motion to be sustained and named the tellers,, who ascended the platform, and held an irregular and in- formal election ; this was followed by the tellers calling out the names 644 Keke v. Trego. (Organization of municipal legislative bodies. ) of the eight pretended members of the county of Philadelphia, and concluded by the announcemeht that Thomas S. Cunningham had been elected speaker of the house ; Mr. Cunningham then ascended the platform, drew from his pocket a Bible furnished him for the occasion, and after the form of an oath had been administered to him, qualified his associates, when this self-constituted house adjourned. During this time, the democratic members of the house, 56 in number, proceeded, in the mode prescribed by law, to the election of a speaker, who was duly qualified, and after administering the oath of office to the other members, the house adjourned. The spurious house of represen- tatives kept up their organization for several weeks (the senate, which was in political accord with the seceders, refusing to recognise the legitimate organization), and these unprecedented proceedings having naturally called together a great multitude of the citizens of the com- monwealth at the seat of government, the governor made their presence a pretext for calling out the military, ostensibly for preserving the peace, but really for the purpose of overawing the house of representa- tives (from which circumstance, and the fact that orders were issued to the troops by the commanding-general, to load with buckshot, this episode in our history is generally known as the "Buckshot "War") ; this body, however, continued to meet, from day to day, in the hall dedicated to the purposes of legislation, having constantly a quorum, until, on the 17th December, they received an accession to their numbers, in the persons of three of the adherents of the other party, who, under a solemn con- viction of duty, left the seceders who were following in the wake of Thaddeus Stevens, presented themselves to the legitimate house of rep- resentatives and took the oaths required by law. The other members of the seceding body refused to take their seats .or to enter upon the discharge of their duties, until the senate was compelled by public opinion, on the 25th of December, to recognise the legitimate organiza- tion, when they successively returned to the post of duty, with the ex- ception of their leader, Thaddeus Stevens, who returned the trust con- fided to him into the hands of his constituents.* * After a lapse of some weeks, Thaddeus Stevens appeared and claimed his seat, but the house decided, that by his conduct, and especially by his address to his constituents, he had virtually resigned the same ; they there- lore declared his seat vacant, and ordered a new election, at which Mr. Stevens was again returned. Kerr v. Trego. 645 (Organization of municipal legislative bodies.) The committee, from the facts before them, came to the following ' conclusions, which they presented to the house : 1. The difficulties which took place at the seat of government, on the 4th day of December last (the day appointed for the meeting of the legis- lature), had their origin in a fraud concocted by certain federal return judges, in the county of Philadelphia, with the advice and co-operation of William B. Reed, the attorney -general of the commonwealth, and John G. Watmough, the sheriff of the city and county of Philadelphia, by which the regularly-elected members of the house of representatives, were iniquitously attempted to be deprived of their seats ; a fraud which Thomas H. Burrowes, secretary of the commonwealth under Governor Ritner, and Thaddeus Stevens, one of his canal commissioners, and a member of the house from Adams county, attempted to consummate, the former by suppressing the legal election returns of said county, and the latter, by attempting to organize the legislature in a manner un- known to the constitution and laws. 3. No necessity existed, at any period, for calling into service the military ; on the contrary, such call was made by ex- Governor Ritner, in the absence of every semblance of necessity, and was manifestly a stretch of power, in derogation of the plainest dictates of law, justice and humanity. 3. If, in point of fact, there was such a disturbance at the seat of government, as is alleged, then, it was clearly the duty of those in power, to call upon the civil authorities to suppress it ; the law points out the mode, and Governor Bitner's attorney-general advised that course to be taken ; no such application was made, although the courts of justice and ofBcers of the law were in the free and undisturbed exer- cise of their usual duties; the constitution ordains, that "the military shall, in all cases and at all times, be in strict subordination to the civil power;" the order, therefore, calling out the troops, was unconstitu- tional and illegal ; and there being no necessity for their presence at the seat of government, the conclusion is irresistible, that they were called into service, to aid and assist the enemies of republicanism, in organiz- ing a legislature, in violation of the constitution and laws, and contrary to the wishes of tHe people of this commonwealth. An impressive lesson for the people of the present day 1 646 Duitield's Case. In tlie Court of Common Pleas of Philadelphia. DECEMBER TERM 1862. (Unkepoeted.) ^OusterJ] Where a member of a municipal legislative body, has been expelled, without notice or hearing, a mandamus will be granted to restore him, on notice and hearing. But where the council has determined, that the member has incurred a disqualification, by accepting a federal office, the court will not interfere. This was an alternative mandamus at the suit of Thomas J. Duffield, to restore him to his place and office as a mem- ber of the common -council of the city of Philadelphia, from which he had been expelled without notice or hearing. PhilUps (with whom were Cassidy and Wharton) for the respondents, moved to quash, on the ground that there was nothing in the suggestion which justified the issuing of the writ ; that it showed upon its face the relator's in- capacity to hold the office ; and that the court was without jurisdiction, as the council was the sole judge of the quali- fications of its members. Sellers, F. C. Brewster and Gilpin, contr^. Thompson, P. J., delivered the opinion of the court. The writ of mardamus is brought as a writ of right, by a party whose office has been taken from him by the act of the respondents ; and the simple question is, first, whether the court has the power to redress the alle^d injury; and secondly, is this the proper way to do it? The legislature cannot create a body with judicial powers, except under the forms of law, and under the con- Duffibld's Case. 64t (Ouster.) trol of law, else they would have the right to take away the powers of the courts. If the legislature designed (which I do not think they did), to authorize a municipal body to exercise judicial powers outside Of all law, such authority would be judged to be out of the pale of the constitution. In this case, it is alleged, that this power is given to council, to judge without reference to any court, and in the face of any adjudication by any court. -If this be so, I have only to say, that we have advanced considerably since the time of Cromwell; in his time, in the case in Stiles, which has been cited, it was ruled, that a man must be heard before being condemned. I would be sorry if we had failed to do that which, in common justice, seems to have been required as long ago as Crom- well's time; even under his stern rule, he brought his officers into court, to answer why they removed a man without hearing. An act of assembly that says that a body shall try a man, without a hearing, and without giving him a day, would be unconstitutional. The court cannot determine what decision shall be made, and it has never attempted to do so ; nor has the supreme court or any court in this commonwealth attempted to do so ; but the court is bound to protect citizens, by seeing that the law, as applicable to their case, is fairly and properly flrdministered. The supreme court has, in a recent case, decided, that they cannot require this court to decide in any particular way, but they can require the court to go on and decide. There may be no written law which says, that a man may be present in a case like this, but there is a law, written upon the conscience of every man, which dictates to him the principle, that no man shall be de- prived of his life, his liberty, his property or his office, without the opportunity of knowing that he is called upon to defend his rights. Upon this ground, and without attempting to say, at present, whether the council had any reason to act as they did, we do say, that in doing what they did, they 648 Duffield's Case. (Ouster. ) ought to have acted in strict conformity with the law of the land, have given notice to the member that a charge was made against him, and have given him an opportu- nity to come in and defend himself. It is admitted, that no such opportunity was given, and therefore, he had no knowledge of what was going on ; it was done without a hearing, and without a charge being made. This is a case where the court ought to interfere on behalf of the citizen, or we may have a state of things where the citi- zens will defend their rights, not by a mandamus, but by the strong arm. We say you shall not do this, unless you do it in strict accordance with the terms of the consti- tution. The motion to quash is overruled. , The defendants, thereupon, filed a return and answer, setting forth, that Thomas J. Duffield held an incompati- ble office, being inspector of clothing at the United States arsenal, and having received such appointment from a " Head of Department," to wit, the secretary of war ; and that in declaring his seat vacant, they acted in the exer- cise of their legislative duty, as councilmen, fou which they could not lawfully be questioned in any other place ; and they submitted that, if their action was irregular for want of notice to the relator, inasmuch as they were de- sirous of conforming to the decision of the court, and of doing their whole duty in the premises, they were willing forthwith to rescind the resolution complained of, and to proceed to inquire into, judge and determine the question of the alleged disqualification of the relator to be a mem- ber of the said common council. F. C. Brewster, for the relator, upon the presentation of this return, moved for judgment, and the allowance of a peremptory mandamus. Phillips and Wharton, contr^. Duffield's Case. 649 (Ouster.) Thompson, P. J. This case is a peculiar one ; the return sets forth certain facts, and concludes by suggesting that the parties are willing to submit to what is supposed to be the law, as announced by the court ; it presents the case in a double aspect. Upon the coming in of this answer, the relator's counsel have asked for a peremptory writ, in view of the insufficiency of the return ; that, ac- cording to our practice, is not strictly in form; in the case of Commonwealth ex rel. Thomas v. County Commis- sioners, 32 Penn. St. R. 218, it has been ruled, that the practice has been changed by statute, and that "an un- satisfactory return is required to be replied to, by de- murrer, plea or traverse ; under our statute, the case then assumes the form of an ordinary action at law, and all questions properly arising are to be tried in the same manner as was formerly done at common law, in an action for a false return; if judgment be given for the party suing the writ, a peremptory writ of mawcZamMS issues, without delay, as if the return had been adjudged insuffi- cient; at common law, a judgment is not necessary to support the peremptory writ ; under our statute it is. Such, in brief, is the statutory mode of proceeding in suits of mandamus; and because it is expressly enjoined by the act of 14th June 1836, and necessary also for the sake of the symmetry of the record, we shall treat the motion and argument made on behalf of the relator, as a demurrer to the return of the respondents, and proceed to consider the case, as if it had been entered in form." That is precisely the course we intend to pursue here; where a motion is made to disallow, the court will take it to be as if demurred to. The answer does not set out matters which are material to the case ; they are entirely immaterial. It is admitted, that there was no hearing. No demurrer that we can con- ceive of, would better present the case upon that point, and that is the only point that we consider important; and therefore, we determine to consider this as a demurrer, 650 Duffibld's Case. (Ouster.) SO that the record may be correct, and we decide the case upon the sufficiency of the demurrer. If the supreme court has made a mistake in this respect, we but follow their decision. It is admitted upon the face of the answer, that this did take place, when the relator was not present, and when he could not enter his defence.; he was, there- fore, improperly and illegally removed. It is no answer to that, to say, that the facts upon which the motion was made can be established; it is too late to take that posi- tion; the party must be restored to his rights, before there can be any justification; we must restore him by act of law, to which he has appealed. There is another ground upon which the court feel justified in deciding this mo- tion ; we think this answer amounts to a submission to the action of the court; the parties state certain facts, and then say, we admit that we ousted this relator, and we will put him back; that is saying to the court, "we submit ourselves to whatever action the court please to take, although we assert that there are certain facts which would justify our action." They say they will undo that which they have done. If they are actuated by that sense of right which the law has enabled them to com- prehend, and are willing to restore, it is the duty of the court to enforce that restoration. The writ is allowed. Peremptory mandamus awarded.* After the delivery of this opinion, and the restoration of the relator, the council appointed a committee to ex- amine and report whether or not Thomas J. Duffield had not vacated his seat as a member of common council, who, after hearing the case (Mr. Duffield attending with his counsel), reported that inasmuch as Thomas J. Duffield had accepted an office under the government of the United States, incompatible with that of councilman of the city of Philadelphia, he had thereby resigned his seat as coun- cilman and that the same was vacant. This report was accepted on the 31st December 1862, and the seat of the * This judgment was reversed in the supreme court, for irregularity. Duffield's Case. 651 (Ouster.) said Thomas J. Duffield was thereupon declared to have been vacated. The relator thereupon petitioned the court of nisi prius for a writ of mandamus to restore him to his office. LowBiE, C. J., delivered the opinion of the court.* On the 4th of December last, the common council of Phila- delphia declared the seat of Thomas J. Duffield vacated, because he had accepted an office of trust and profit under the "Cnited States, to wit, the office of general superin- tendent of the clothing dep6t of the United States arsenal ; but he was restored by a mandamus from the common pleas, because the common council had proceeded without notice, and perhaps for other reasons ; and afterwards, the judgment of the common pleas was reversed in this court, because of irregularities in the proceeding there, no other question being then decided here. After his restoration, the common council proceeded in more regular order, and removed him again ; he now applies to this court for a mxm- damus to restore him, on the ground that the office held by him is not incompatible with the office of councilman. Along with other matters, raising a question of disputed fapt, not now to .be discussed, the councilmen, in their return, claim that their act in vacating the relator's seat, is not subject to review and correction by the courts, and to this the relator demurs ; and this raises the question of law, whether we have authority to interfere. It is the only question now to be discussed. The common council removed the relator, because, dur- ing his term as councilman, he had accepted an office under the United States, and because they supposed that he had thereby become disqualified to exercise the office of councilman; and they justify the reason assigned, by referring to the charter act of 2d February 1854, § 4, which says, that "the members of the common council sh^ll have the same qualifications as are required by the =» Keported in 20 Leg. Int. 100. 652 Duffibld's Case. (Ouster. ) constitution for members of the house of representatives ;" and to the constitution, Art. I., sect. 19, which says, leav- ing out irrelevant words, that "no person holding any office under the United States, shall be a member of either house (of the assembly) during his continuance in office." Putting these two clauses together, mutatis mutandis, they may read thus, " no person holding any office under the United States, shall be a member of either council during his continuance in such office." This is the law under which the common council acted in removing the relator, and which they applied to his case. We have, therefore, no difficulty in defining the func- tion which the council was exercising when it removed the relator; it was judging of the qualifications of its members. The question of holding an incompatible office (as well as those of age, residence and citizenship), is always a question of qualification, and is everywhere so spoken of; and this question may be raised at any time, as well after the person elected has been sworn into office, as before. In 'nearly all the cases cited in the argu- ment and referred to in the case of Commonwealth v. Binns, 17 S. & R. 219, the question was not raised until after the officer had been inaugurated, and very often the incompatible office is accepted during the continuance of the one in relation to which the question of qualification arises. The case is, therefore, quite distinct from one of contested election, or of expulsion for misbehavior in office or for the commission of some infamous crime. What, then, is the tribunal that is to decide whether a councilman has become disqualified, by the acceptance of an incompatible office? The answer to this question is found in the charter act of 1854, § 35, which declares, that the respective councils "shall, in like manner as each branch of the legislature, judge and determine upon the qualifications of their members." The proper council has judged and determined this question of qualification ; and now the question is raised, what authority have the DtFFiELD's Case. 658 (Ouster.) courts to interfere, so as to review, and, if necessary, cor- rect their decision? No doubt, the functions and autho* rity of the courts do extend to all questions of right aris- ing between private persons, and between private persons and corporations, and in the management of private cor- porations; and this cannot be changed by the legislature, because it is declared by the constitution, in providing for the judicial department, and assuring to every one a remedy by due course of law. It is founded on the prin- ciple, that it is necessary for the order of society, and for the security of persons and property, and that for every wrong, which society recognises as a wrong, there should be a remedy in some regular and established form. But though the courts have this general and indefeasible au- thority, they never feel themselves entitled to exercise it, when the parties to the question have provided a mode of their own for settling their differences, unless that mode prove inadequate, for they could not do it without vio- lence to the proper arrangements of the parties. In other words, society does not need to interfere by its courts and remedies, when the parties have provided a sufficient tri- bunal of their own; and no question for the courts is considered as being properly raised, unless the private remedy has, in some measure, failed in its purpose. Thus, when parties submit their differences to arbi- trators, and an award is made, the courts do not try the case over again; but only enforce the award, if that is necessary. And so in regard to private corporations; if the articles of association, or the charter, provide a mode of settling disputes about the corporate rights of the members, the courts do not feel inclined to interfere, unless where the corporate remedy is inadequate ; and a remedy is not regarded as inadequate, merely because it produces unsatisfactory results, but because it has some inherent inadequacy, or has resulted in some impracticable decision, or has been defeated of its purpose by some fraudulent contrivance; no mere misjudgment, in such cases, is suffi- 654 Duffield's Case. (Ouster.) eient to justify the intervention of the courts, for noi human tribunal can be exsmpt from this, and especially, from the charge of it. Exactly the same is the rule rela- tive to disputes arising in the official organization of public corporations. The constitution does not require any judicial intervention therein, and the legislature may dispense with it ; and whenever the corporate law provides a mode of settling disputes therein, without the inter- vention of the courts, that mode is deemed exclusive of the ordinary remedies, and the judicial authority is dis- pensed with, because adequately supplied. The two poli- tical parties in Philadelphia were in dispute before us twice, on this point, during the first year and the year before, in Hulseman's' case (41 Penn. St. Ri 396), and the sheriff's case (43 Ibid. 884), and both times we decided this principle as we now decide it; we cannot surrender it. In none of these classes of cases, does this rule leave the parties without a remedy ; but it refers them very decidedly to the remedy, public or private, which has been specially provided ; and it is usually, after this remedy has disap- pointed their wishes, that they complain of the want of an adequate remedy. Their meaning, then, ordinarily- is^ that the special remedy has produced an unfavorable or displeasing result, and that there ought to be a remedy for that; an argument that would allow no human tribunal to render a final decision in any cause. And perhaps this rule ought to be regarded as much less subject to equitable exceptions, in its application to public, than in its applica- tion to private causes ; because measures of social organi- zation are not necessarily subject to judicial cognisance^ whilst questions of private right are. Yet we are far from saying, that there can be no case in which the courts would be justified in interfering with the aiiministration of such special remedies, even in public cases. Here, it is clear, that the remedy for the case of a dis- qualified member, is given to the council; it must judge and determine the question, and remove or not, according Duffield's Case. 655 (Ouster. ) to its decision. That remedy sets aside the judicial authority, in such cases, except where it is retained by equitable considerations. "We discover no such equitable reasons here ; we do not even discover that there was any clear misjudgment. The supreme court seems to have had much hesitation in saying, that the designation of Mr. Binns's newspaper, for the publication of the United States laws, was not an appointment of him to .an office (17 S. & R. 219); and probably they would have hesitated much more to say so, in such a case as this, where the person appears in the government Blue Book, as an officer of trust, salary and authority. But the case does not need this consideration ; no sort of equity is pretended to be shown, in order to justify a departure from the remedy specially given by the law ; no equitable remedy is sought ; our case is one of pure law, in the form of a mandamus, and pure law rejects that as a remedy for the case. The point taken in the return is sustained, and the demurrer of the plaintiff is Overruled. Judgment for defendants. That the acceptance of a disqualifying office, after the member has taken his seat, operates as a forfeiture of it, has been repeatedly decided by congress, in the case of members of the house of representatives. Van Ness's Case, 1 Cong. Elect. Cas. 133 ; Zell's Case, 3 Ibid. 93 ; By- ington «. Vandever, Ibid. 395 ; Stanton v. Lane, Ibid. 637. 656 Commonwealth v. Garrigues. In the Supreme Court of Pennsylvania. JANUARY TERM 1857. (Reported 28 Pennsylvania State Reports 9.) [^Quo warranto.} Where a statute prescribes a mode for inquiring into, and determining the regularity and legality of a municipal election, and provides that the decision of the tribunal shall be final, such jurisdiction is exclusive, and a writ of guo warranto will not lie. • This was a writ of quo warranto issued upon the sugges- tion of the attorney-general against William Garrigues, the defendant, to show by what warrant he claimed to exercise the office of alderman of the Twenty-fourth ward of the city of Philadelphia. The defendant pleaded to the jurisdiction, on the ground that under the act of 1854, the election could only be contested by proceedings for that purpose in the court of common pleas of Philadelphia. To this plea the commonwealth demurred. Waite, for the commonwealth. Townsend, for the defendant. Lewis, C. J., delivered the opinion of the court. The act of 2d February 1854, provides that the returns of all municipal elections (with exceptions not material to the present case), " shall be subject to the inquiry and determi- nation of the court of common pleas of the county of Philadelphia, upon the complaint of fifteen or more of the qualified voters of the proper ward or division, which complaint shall be filed in the said court, within twenty days after such election," &c., and "the said court, in judging of such elections, shall proceed upon the merits Commonwealth v. Garrigubs. 657 (Quo warranto.) thereof, and determine finally concerning the same, accord- ing to the laws of the commonwealth." If the election of William Garrigues had been contested in the manner thus prescribed, the judgment of the court of common pleas would have been final ; it would not have been reversed by quo warranto, nor by any other collateral proceeding; even a certiorari would only draw into review in this court the regularity of the proceedings, without reaching the merits of the case, as disclosed in the evidence ; on the merits, the judgment of the common pleas, by the terms of the act of 1854, is final and conclusive. In addition to the provision of the statute to this effect, the principle of the common law produces the same result. It is the interest of the public, that there should be an end of contention; justice to the parties requires, that no one should be twice vexed for the same cause ; for these reasons, the general rule of the common law has been established, that no judgment of a court of competent jurisdiction can be re-examined in a collateral proceeding. If the election had, been contested in the manner pre- scribed by the statute, the decree of the common pleas could not have been re-examined in this form of action ; can the commonwealth gain any advantage by disregard- ing the requirements of the statute? The act of 1806' furnishes an answer to this question; the remedy pre- scribed by the statute must be pursued. But it is argued, that the commonwealth is not bound by the statute. It is true, that the general rule in Eng- land is, that the king is not bound by a statute, if he be not named in it; but this rule has many exceptions. All statutes made to suppress wrong, to take away fraud, to prevent the decay of religion, to prevent tortious usurpa- tions, or to secure to electors the right to make free elec- tion, are excepted out of this rule, in England, and bind the king, although he be not named. 5 Co. 146 ; Dwarris on Stat. 27-8. The act of 1854 comes within the spirit of several of these exceptions. In addition to this, the 42 658 Commonwealth v. Garrigues. (Quo warranto.) subject-matter, being one in which the commonwealth is a chief party in interest, plainly indicates an intention to bind, the state; if this were not the construction, the statute would be almost inoperative. It is, therefore, our opinion, that the remedy prescribed by the act of 1864 excludes all other remedies for matters which might have been investigated in the form prescribed by that act. It is not necessary to determine how far this statute binds Henry Wynkoop ; he is not a party to this suit ; he has carefully avoided becoming the relator or in any way making himself liable for costs. The 13th section of the ?ict of 13th April 1840, applies to writs of quo warranto brought by individuals, in which the controversy is " be- tween persons claiming to be duly elected." It does not, therefore, apply to this case ; if it did, it is repealed by the act of 1854, so far as the former is repugnant to the provisions of the act last mentioned. It follows, that the defendant is entitled to judgment on the demurrer.. Judgment for defendant. 659 Commonwealth v. Meeser. In the Supreme Court of PennsylvatiiEU JANUARY TEEM 1863. (Reported 44 Pennsyltania State Kbpoets 341.) [ Quo warranto^'] A. gwo toarratit9 will lie to test the right of a person to a seat as a mem- ber of a municipal legislative body, though it have power to decide upon the election and qualification of its own members, where the claim rests on an election to fill a vacancy which did not exist ; the court cannot in- quire into the regularity of the election, but it can decide whether there was an offlde or a vacancy to be filled. This was an application by Henry E. Wallace and Ed- mund S. Yard, for a writ of quo warranto, to test the right of the defendant to the office of a member of the common council of the city of Philadelphia. The suggestion set forth that the Fifth ward of the said city, having less than 4000 taxable inhabitants, was entitled to but one member of common council ; that William M. Baird was elected to said office in 1861 for the term of two years, and that his term of office had not expired ; that at the election in 1862, five votes were cast for the defendant, in virtue of which the return judges had fraudulently given him a certificate of election, and that on such certificate he had been admitted to a seat in the common council by the officers thereof. LowRiB, C. J., delivered the opinion of the court. It would be a vicious j-ule of law that would allow all public officers to be annoyed by a quo warranto, at the pleasure of every intermeddler or malicious person, and therefore, we have hesitated in granting this writ at the suit of a pri- vate person ; but it is quite apparent, that the relators here really represent a large and respectable political party, 660 Commonwealth v. Meesee. (Quo warranto.) and are not induced to act by mere personal motives. And we observe that by the act of 24th April 1854, § 3 (not cited to us in arguing these disputes, and not before noticed by us), any tax-payer may obtain an injunction against any violation of the charter-law of the city, and we may take this as a fair analogy for granting this writ, especially, as we can always prevent the abuse of it, by the exercise of the discretion that belongs to all preroga- tive writs. Yet, it is not without some hesitation, that we pass this objection, and come to the essential question of the cause. Is there a reasonable cause shown for disputing the de- fendant's title to the office of common councilman? We think there is : it is denied that there was any vacancy to be filled for the Fifth ward, at the time of the last election, and this appears to be well founded ; for it does not appear that the ward had 4000 taxable inhabitants on the list of taxables of the preceding year, and the sheriff issued no proclamation for an election for the office, and therefore, the people did not understand that there was to be an election for it, and only five of them, out of nearly 4000 taxables, voted. This ward has already one member, and is not entitled to another, unless it had 4000 taxable in- habitants. Here, then, are the regular steps to a valid election ; an official list of taxables of the preceding year, showing 4000 taxable inhabitants ; a proclamation of the sheriff of a vacancy to be filled, which proclamation is expressly required ; and an actual election, in pursuance thereof, conducted by the proper officers and certified as the law directs; if any of these steps be wanting, then the election was irregular, and the defendant's title to the office was, at least, doubtful. But let us be careful here; this court has no authority to judge whether the election was regularly conducted or not, for that duty is assigned by law to the councils; our duty must be confined to the' decision of the question, whether there was an office or vacancy to be filled. Commonwealth v. Mbeser. 661 (Quo warranto.) "Was there a vacancy in the representation of the Fifth ward, that could be lawfully voted for at that election ? was there the competent number of taxable inhabitants? The relator relies on the record to show that there was not, and the defendant appeals to oral evidence that there was ; one sticks to the letter and form of the proceeding, and the other appeals to the spirit and substance of it. How shall we dispose of this appeal? No doubt there are very many cases, in which a strict adherence to the letter of the law would be destructive of justice, and it is quite impossible for the law to define, with pre- cision, all the customary rights of a people, or to express exactly the duties arising from the ever-changing forms of social transactions ; there is a very large field of social relations, wherein the law, whether statutory or custom- ary, must ever remain somewhat indefinite, in order to be adapted to society. But is it so with our election laws? We think not : all our electoral rights depend on written law, and it only can define them. It is true, that written law depends itself on ulterior principles of natural law ; but those principles are subject to very great diversities of application, and lack entirely that definiteness which is an essential quality of law as a rule of common or social conduct ; law is intended to be a definition of those principles, in such a form as to fit them for a ready and ordinary use, and to avoid the disputes that necessarily grow out of more general principles. And nowhere is clear and precise definition more needed, than in the laws that relate to the organization of society, and to the maintenance of its organic forms; form is the sole pur- pose of them, and we must view them formally, and fol- low them strictly, else the whole society is very apt to be disturbed. 'So latitude or looseness of administration of the law is tolerable, when it endangers the peace and order of society ; it ought to be so steady, as not to be at all shaken by partisan excitements. The defendant thinks that his ward is entitled to two 662 Commonwealth v. Meesbr. (Quo warranto.) members of council, if it has, in fact, 4000 taxable inhab- itants. But this is not the law ; it is, that it is so enti- tled, only in case it has so many, " according to the list of taxable inhabitants for the preceding year;" their repre- sentation is, therefore, not according to taxables, but according to the inhabitants actually taxed, and placed on a particular list, as taxed ; a,ll taxables ought to be on that list ; but the right depends not on this, but on the fact that they are so. What is the list of taxables? Under the charter act of 1854, and no doubt, long before, this was no other than what is usually called the assess- ment-book; but in the supplement of 13th May 1856, § 6, this is changed in a way that may cause some uncertainty, unless care be taken ; it requires the assessors to make out, of course, from the assessment-book, " an alphabetical list of all the taxables, to be returned to the commissioners with the assessment-book, to be used for election pur- poses." This, then, is the list by which the representa- tive number is to be ascertained, and we must take it as we find it returned into the commissioners' office by the joint act of the assessors, and by it the sherift" must be guided in proclaiming the number of common councilmen to be elected in each ward ; for election purposes, it is a record. Many names in the tax-list of the ward of the year 1861, are erased, by red lines drawn through them, and they must, for the fixing of the representative num- ber, stand as now written there ; only what a-re left appear to be the joint act of the assessors. If any one has fraudulently erased them, let him be punished for it, by refusing hini all compensation, or by other penalty. The erasure rather seems to have been properly done ; and it is admitted, that the unerased names do not amount to 4000. Without speaking, therefore, of the want of the sheriff's proclamation, or of any real election by the people, we think the relators have shown good cause for the writ. Quo warranto awarded. Commonwealth v. Meeser. 663 (Quo warranto.) The doctrine of Commonwealtli «. Garrigues, that where a statute prescribes a mode for determining a contested election, a quo warranto will not lie, was followed in Pennsylyania, in Commonwealth v. Baxter, 35 Penn. St. R. 263 ; Commonwealth «. Leech, 44 Ibid. 832 ; Common- wealth v. Loughlin, 20 Leg. Int. 100 (ante 651) ; Commonwealth «. Barger, Ibid. 101; and Commonwealth s. Reed, 18 Pittsburgh Leg. Journal 131. And in Ohio, in State «. Marlow, 15 Ohio St. R. 114 ; and Peck V. Weddell, 17 Ohio St. R. 371. (And see Hulseman v. Rems, 41 Penn. St. R. 396, ante 314.) But these decisions are directly in conflict with the earlier judgment of the supreme court of Pennsylvania, in Commonwealth v. McCloskey, 2 Rawle 369 (ante 196), the doctrine of which was followed by the supreme court of California, in People d. Holden, 28 Cal. 123 (ante 480). In this latter case. Chief Justice Sanderson said : " It is first claimed by the appellant, that the district court had no jurisdiction in the premises, and that the only remedy, in cases like the present, is under the statute which prescribes the mode and manner of contesting elections. No proposition could be more untenable. It is true, that the act providing the mode of contesting elections, confers upon any elector of the proper county, the right to contest, at his option, the election of any person who has been declared duly elected to a public office to be exercised in and for Such county. But this grant Of power to the elector, can in no way impair the right of the people, in their sovereign capacity, to in- quire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom, if it be made to appear that he is a usurper, having no legal title thereto. The two remedies are distinct ; the one belonging to the elector, in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty. Title to office comes from the will of the people, as expressed through the ballot-box, and they have a prerogative right to enforce their will, when it has been so expressed, by excluding usurpers and putting in power such as have been chosen by themselves ; to that end, they have authorized an action to be brought in the name of the attorney-general, either upon his own suggestion o?, upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state. It matters not, upon what number of individualfl, a right analogous in its results, when exercised, may 664 Commonwealth v. Mbeser. (Quo warranto.) have been bestowed, for the power in question, none the less, remains in the people, in their sovereign capacity ; it has been shared with the elector, but not parted with altogether." So, in Armstrong v. Miller, where the select council of Philadelphia had refused to receive the report of an election committee, vacating the seat of the defendant, Mr. Justice Strong, in the court of nisi prius, refused to interfere, on a bill for an injunction, mainly on the ground that the law gave a full remedy by writ of quo warranto. 3 January 1864. Where the office is a public one, a quo warranto will not lie at the suggestion of a private relator. Commonwealth v. Burrell, 7 Penn. St. R. 34; Commonwealth v. Cluley, 56 Ibid. 270 (ante 144) ; State o. Boal, 46 Mo. 531. And even where the law permits such action, a mere stranger cannot interfere; the relator must, in such case, show his own right to the office to be superior to that of the defendant. State V. Adams, 3 Stew. 285-6 (ante 289); People v. Lacoste, 37 N.T. 192. Thus, an information in the nature of a quo warranto to determine the right to an office as .between rival claimants, must set forth all the facts which show that the relator is entitled to it ; it is not enough, to show that the incumbent is disqualified. State v. Boal, 46 Mo. 528. In Pennsylvania, the purview of the act of 13th April 1840, is broad enough to cover all questions arising on writs of quo warranto, between rival claimants of elective offices. Commonwealth v. CuUen, 13 Penn. St. R. 133. It is, however, a rule of corporation law, that a person shall not be permitted to impeach a title conferred by an elec^ tion in which he concurred ; but if a person do not know, or have the means of knowing of an objection to an election, at the time it takes place, he will not be deemed to have concurred in it ; and the subse- quent recognition of an election does not, necessarily, and under all circumstances, preclude one so acquiescing from questioning its validity as a relator in a quo warranto; for before one can be charged with acquiescence in, or recognition of, an illegal election, it must appear that he had knowledge, or the means of knowledge, at the time of such recognition. Commonwealth «. McCutchen, 2 Pars. 205. 665 Lewis's Case. In the Supreme Court of Pennsylvania. NOVEMBER TERM 1857. (Repobtbd 29 Pennsylvania State Repoets 518.) [Term of office.'] The commissions of the judges of the supreme court are to be computed from the first Monday of December next succeeding their election, to the first Monday of December in the year of their limitation. "Woodward, J., delivered the opinion of the court. In order that writs out of this court may he tested in the name of the proper officer, and that judgments and decrees may be duly entered, between the Ist and 7th days of De- cember, proximo, it becomes necessary to decide, whether the commission of Chief Justice Lewis will expire on the first day of that month, or continue until the 7th, which will be the first Monday. If we should follow the strict letter of the constitutional amendment of 1850, which first introduced an elective judiciary into our system of government, it would be obvious, that Judge Lewis's com- mission could not extend beyond the first of December, because, elected in 1851, at the first election under the amendment, and the term of six years assigned to him by the lot therein prescribed, he was commissioned on the first Monday, which happened, that year, to be the 1st day of December 1851, for six years, a period that would ex- pire at midnight of the last day of November 1857. He received subsequently a cpmmission as chief justice, which, however, was founded on that granted in 1851, and in no wise superseded it, or afiected the limitation therein ex- pressed. The title to his office was derived, not from the commission which designated him as chief justice, but from the popular election of 1851 and the commission in 666 Lewis's Case. (Term of office.) pursuance thereof; and according to these, upon a literal reading of the constitution, his title would expire with the present month of November. But we are satisfied, that the spirit and true meaning of the amendment are rather to be followed, than its strict letter ; and according to these, the first Monday of Decem- ber is made the terminus a quo and ad quern of judicial commissions ; so that, whether we reckon the special ten- ures assigned to the first five judges elected to this court, or the general tenure of fifteen years assigned to all subse- quently-elected judges, they are to be considered as running from the first Monday of December next succeeding the election, to the first Monday of December in the year of their limitation ; in other words, we hold, that the years mentioned in the amendment are to be counted from Mon- day to Monday, and not from the day of the month to the day of the month. The amendment itself implies that this is a sound construction. It fixed, expressly, the first Monday of December 1851, as the day on which all prior judicial commissions should expire, and of course, indicated that as the day on which the new ones should commence ; and it was the first Monday, without regard to the day of the month on which that day of the week should fall. That year, the first Monday happened to be the first day, but that day was selected, not because it was the first day, but because it was the first Monday of December; the framers of the amendment very well knew, that the first Monday would not always fall on the first day. And so, in the case of a vacancy, it shall be filled, says the amend- ment, by executive appointment, " to continue till the first Monday of December succeeding the next general election." Our brother Armstrong is on the bench by executive ap- pointment, under this clause of the constitution, and his commission, by its own limitation, must extend to the first Monday, this year, the seventh day of December. It is unreasonable to suppose, that the amendment, which was designed to establish an elective judiciary, meant to make Lewis's Case. 667 (Term of office.) a distinction in favor of an executive appointment, and against a popular election, and we should mar the symmetry of the system by so administering it. If both classes of judges, however, those elected for a term of years, and those appointed to fill vacancies, are confined to the same rule, if both hold to the first Monday of December, we have a system that is simple, consistent and harmonious in all its parts. This constitutional amendment originated in and was drafted by the legislature ; a legislative interpretation of the meaning of its terms is, therefore, entitled to peculiar respect. We have a legislative construction of it, in the 11th section of the act of assembly of 15th April 1851, regulating the election of judges, wherein it is provided, that as soon as practicable after the first Tuesday in Ifovember next following any election of judges, "the governor shall grant the persons elected, respectively, commissions as are now required by law, to hold their respective offices, from and after the first Monday of December next following such election, for and during their respective terms of office," &c. The constitutional amendment having failed to fix, in terms, the date at which the commissions of elective judges should take effect, the legislature supplied it in this section, and eup- plied it, of course, according to their understanding of the meaning of the constitution. The gentlemen recently elected, Messrs. Strong and Thompson, will be commissioned under this section, and cannot, of course, come upon the bench before the 7th of December. If Judge Lewis should go out on the first, there would be a vacancy in the office for a week, and vacancies, says the constitutional amendment, happening from whatever cause, are to be filled by executive appoint- ment, to continue till the first Monday of December suc- ceeding the next general election. It is not to be supposed, that the governor would exercise his power of filling this vacancy, but if the constitution be construed according to its letter, the power of appointment would clearly 668 Lewis's Case. (Term of ofBce.) exist; and if exercised, the appointee of the governor would be in possession of the office, by virtue of a consti- tutional grant, whilst the newly-elected judges would claim it only in virtue of a legislative regulation. The inferior law would, of course, have to yield to the superior, and one of the elected judges would have to stand back, for a year; but which of them? the constitution and laws afford no means of determining ; elected at the same time, and for the same term, and to retire necessarily at the same time, a difference of a year would exist in their tenures, and no man could tell 'which was the short one. The constitution was never meant to produce results so absurd and unjust. It provides that the supreme court shall consist of five judges,* and it established the court as a perpetual institution ; it contemplated the possibility of vacancies and provided for filling them, but they were vacancies happening from death, resignation or other cause external to the constitution itself. In its own legiti- mate and necessary operation, it would cause no vacancies ; it would dismiss no one of its servants, until it had pro- vided a qualified successor ; it would not constitute the court, even for a week, with less than five judges, nor give the governor power to displace for a year the judge cho'feen by the people. To give our fundamental law its intended effect, and to prevent confusion and disorder. Chief Justice Lewis's commission must be regarded as extending to the first Monday of December. If it be said, that this is adding a week, by judicial con- struction, to his prescribed term, it must be accepted as a necessary consequence ; and if, fifteen years hence, the first Monday shall fall on the first day of December, the terms of Messrs. Strong and Thompson will be abbreviated a week, but that too must be borne as a necessary result of the indefinite terms in which the constitutional amend- * It provides no such thing ; the supreme court at the time of the adop- tion of the amendment, consisted of five judges, and the amendment pro- vided for the tenure of the first five judges to be elected, which was to be determined by lot. Lewis's Case. 669 (Term of office.) ment was conceived. It is a common fault of our legisla- tion (and the amendment of 1850 shares it largely), that phraseology is not carefully considered. In the amend- ments of 1838, nothing was more anxiously attended to than the language in which comprehensive rules were to be expressed * and the consequence has been, that less doubt and litigation have grown out of those numerous amendments, than have sprung from the single amend- ment of 1850. Eeading it, however, as we have construed it, in respect to the termination of judicial commissions, we avoid vexatious embarrassments, and give effect to its spirit and intention ; and as to the week added to one judi- cial tenure and taken off from another, the maxim must be applied, de minimis non curat lex. The prothonotaries of the several districts will test writs in the name of Chief Justice Lewis until the 7th December 1857. In 1865, a. question arose in Philadelphia as to the election of con- trollers of the public schools ; the act of 22d March 1865 had provided that the directors, at a meeting held on the third Tuesday of December, should elect one of their number to serve as controller for one year, from the first Monday of January next ensuing, and the question was, whether this election was to be held by the directors then in office, some of whose terms would expire on the 1st January, and whose suc- cessors had already been elected, or by the directors holding over and the persons elected as directors, who would hold office for the year during which the controller was to serve. LrDLOw, J., admitting that the statute was clothed in very ambiguous language, came to the con- clusion, that the board as then organized were the electors of the con- trollers of the ensuing year. Case of the School Controllers, 6 Phila. 110. A lilie action by a retiring body was held binding in Hadley v. City of Albany, 33 N. Y. 603 (ante 307). In Missouri, a person elected, at a special election, to fill the office of judge of the St. Louis county court, was adjudged to hold only until the next regular general election. State v. Conrades, 45 Mo. 45. * The learned judge was a distinguished member of the constitutional convention of 1837-8. 670 COMMOJTWEALTH V. HaNLEY. In the Supreme Court of Pennsylvania. JANUARY TERM 1848. (Reported 9 Pennsylvania State Reports 5X3.) [ Vacancy in office."] Where an officer holds for a term of years, and until his successor is duly qualified, the death of the person elected to fill the office, before he has qualified himself according to law, does not create a vacancy that can he filled by executive appointment. This was a quo warranto to inquire by what authority the defendant claimed to exercise the office of clerk of the orphans' court for the county of Philadelphia. It appeared by the pleadings, that the defendant had been elected, at the general election in 1845, and commissioned for the term of three years from the first of December 1845, and until his successor should be duly qualified; that at the general election in 1848, one Oliver Brooks had been duly elected as the defendant's successor in office, but had died on the 5th E'ovember following, before he had been com- missioned or qualified. The governor deeming that this created a vacancy, to be filled by executive appointment, thereupon, commissioned Broom, the relator, to fill the supposed vacancy. Reedy for the relator. J. ^ C. Fallon, for the defendant. Rogers, J., delivered the opinion of the court. The rights of the relator and respondent depend upon the construction of that part of the amended constitution which provides "that prothonotaries of the supreme court shall be ap- Commonwealth v. Hanlet. 671 (Vacancy in office.)' pointed by the court, for the term of three years, if they so long behave themselves well; prothonotaries and clerks of the several other courts, recorders of deeds and registers of wills, shall, at the time and place of election of representa- tives, be elected by the qualified electors of each county or district over which the said courts extend, and shall be commissioned by the governor ; they shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified; va- cancies in any of the said offices shall be filled by appoint- ments, to be made by the governor, to continue until the next general election, and until their successors shall be elected and qualified as aforesaid." The cardinal rule in the construction of the constitution is, the spirit and intention of its framers; and this intention we have endeavored to carry out in Commonwealth v: Swift, 4 Whart. 186, in Commonwealth v. Collins, 8 Watts 344, and in other cases. The respondent was elected clerk of the orphans' court for this city and county, the second Tuesday of October 1845, and being so elected, the then governor of the csmmon- wealth' issued a commission to him, in due form, dated the 9th November 1845, whereby the respondent was commis- sioned, in the language of the constitution, to be clerk of the orphans' court for the term of three years, to be com- puted from the first day of December 1845, and until a successor shall be duly qualified. The respondent took the oath of office, gave bond, with sureties, as required by law, was in all respects duly qualified, entered on the duties of his office the 1st December 1845, behaved himself well, and has since used and continued to use and execute the same. The second Tuesday of October 1848, Oliver Brooks was elected successor to the same office, but having died the 7th November 1848, within thirty days (the time pre- scribed by the act of 2d July 1839) from the day of election, he never was, nor could be, qualified to fill the office, by taking the necessary oath or by giving bond as 672 Commonwealth v. Hanlby, (Vacancy in office.) the law requires. In this position, the governor, reciting that a vacancy had occurred in the office, issued his com- mission to the relator. The relator contends that, according to the spirit of the constitution, the tenure of county officers is strictly lim- ited as to time, viz : three years ; that any extension of the time arises only from the exigency of the case, and must be strictly construed ; that the holding over of the incumbent is confined to the single instance of failure to qualify (a failure resulting from the act or omission of the successor); that there can be no holding over, when a vacancy occurs which is to be filled, for a limited time, by executive appointment ; that, if neither the death of the successor, before his commission takes effect, nor the expiration of the term of three years for which the re- spondent was elected and commissioned, create a vacancy, the incumbent necessarily holds over for three years, and a popular election next year is defeated ; that the office, so far as to create a vacancy by death, is filled by election, and that, at- the expiration of the term of three years for which an incumbent is elected and commissioned, a va- cancy occurs, even though there be no election by the people, as, in case of a tie ; such incumbent continues under a provisional tenure, being only a temporary officer, until his successor shall be duly qualified. The respondent denies and avoids the several propositions of the relator, and insists, that sedulous care is taken, in the amended constitution, to restrict, as far as possible, the patronage of the executive, and to give him the power of appointing to the office in question only when the public necessity requires it; that the governor has the right of appoint- ment in the single case, where a vacancy has occurred, and then only, because public convenience demands that there should be some actual incumbent competent to fulfil the duties of the office. The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that, Commonwealth v, Hanlet. 673 (Vacancy in oflace. ) according to the spirit of the constitiation, the tenure of county officers is strictly limitied as to time, viz: three years ; and that any extension of the time arises only from the exigency of the case, and must be strictly construed. The relator assumes that the respondent was elected and commissioned only for thr^e years ; but this is a mistaken view of the constitution, and is only plausible, by oblite- rating several important words from that instrument. The constitution reads thus: "they shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified" The obvious meaning of this clause is, that they cannot hold office for less than three years, if they so long behave them- selves well ; arlth'ough, on the happening of certain contin- gencies, they may hold office for a longer period. It is, therefore, of no consequence that, according to the respon- dent's construction, he holds office for six, instead of three years. "Without intimating an opinion as to the term of his office, or that, if, as the relator contends, it would be a great misfortune, we think there is nothing in the argument which can overrule the plain words of the constitution. That question does not directly, although it may incident tally arise, and may be, and has been, considered by the court, and due weight aittached to it, without, however, altering the conclusion to which we have felt ourselves bound to come. Besides, it will be for the legislature to determine, whether this result, so much deprecated by the relator, may not be removed by legislative enactment. That the respondent is entitled to hold until his succes- sor is duly qualified, are the words of the constitution. "Was a successor duly qualified within its spirit? is the point, on which the question mainly, if not entirely de- pends. Being duly qualified, in the constitutional sense, and in the ordinary acceptation of the words, unques- tionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite, before entering on the duties of his office;, 43 674 Commonwealth v. Hanley, (Vacancy in office.) that, in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation (see 8th article of the constitution) to support the constitution of the commonwealth, and to perform the duties of the office with fidelity. Until all these pre- requisites are complied with by his successor (if you can dispense with one, you can dispense with all), the re- spondent is de jure, as well as de facto, the clerk of the orphans' court. The words are emphatic and full of meaning ; the successor must not only be .qualified, but didy qualified; and qualification for office, as defined by the most approved lexicographer, is, endowment or accom- plishment that fits for an office ; having the legal requisites ; endowed with qualities fit or suitable for the purpose. In this sense it is used in the same section of the constitu- tion (Art. VI., sect. 3), as respects electors; "qualified elec- tors " clearly meaning citizens, either native or naturalized, who have paid taxes, and who are, in all respects, entitled to vote. In the same connection it is used in other parts of tihe constitution, and in various acts of assembly, which it would be a work of supererogation particularly to enu- merate. Even in ^its direct, restricted, popular sense, it means he shall have taken an oath or affirmation. The constitution provides, not only that the officer shall be elected, but that he shall be commissioned by the gover- nor; this is conclusive proof, that the election alone does not constitute him an officer, in a constitutional sense; for there may be cases, where the governor would be bound, by an imperious sense of duty, to withhold the commission from a person duly elected by the qualified electors, as, for example, in case of insanity developed since the election, or the conviction of some high crime or misdemeanor ; where this occurs (and it is possible, though not probable), no person will venture to contend, that the office is filled by election, as the relator contends, so as to create a vacancy by death. It is said, and this is the Commonwealth v. Hanley. 675 (Vacancy in ofHce.) strength of the relator's case, that the holding over of the incumbent is confined to the single instance of failure to qualify, a failure resulting from the act or omission of the successor. But, for this distinction, we see no warrant in the constitution, or in the reason of the thing; for, of what consequence is it, in principle, whether the oflicer elect is prevented from qualifying himself by an inability or unwillingness to give the necessary security, by neglect or refusal to take the required oath or afiirmation, by in- sanity or crime, or by the contingency of death? It is enough for the incumbent, who holds the office by a con- stitutional tenure, that, for some cause, with which he has nothing to do, the requirements of the constitution and laws have not been complied with. The only inquiry is, has a successor been duly qualified ? if he has not, we are not at liberty to inquire whether it has arisen from his own act or omission, or has been caused by death, or by other causes over which the successor may have had no control. The 10th October 1848, Brooks was elected to be the respondent's successor, and never could be qualified, for he died the 7th November 1848, within thirty days from the day of his election, and before his commission could be legally issued. Did the case rest here, the title of the respondent would be clear and unquestionable ; but the relator contends, that the facts presented a case of vacancy, which the governor had the right to fill, and this brings us to the considera- tion of that question. Vacancies of the offices enumerated in the preceding part of this section (so reads the consti- tution) shall be filled by appointments to be made by the governor, to continue until the next general election and until successors shall be elected and qualified as aforesaid. To sustain the proposition, that in this case, the governor has the right of appointment, as a case of vacancy, it is necessary for the commonwealth to establish, that the office, so far as to create a vacancy by death, is filled by election. On this point, several remarks have already 676 Commonwealth v. Hanley. (Vacancy in office.) been made pertinent to the question, whicli it would be useless to repeat. That the framers of the constitution did not look to an election merely, as conferring office, is very evident, because, otherwise, we must strike out the important words, that before a person who has been regu- larly elected, commissioned, given bond and sworn, can be suspended, his successor must be qualified in like manner. That there is a diiference between the election and qualification of an officer, is too apparent to need the aid of argument. The successor must not only be elected, but he must be qualified, are the words of the constitu- tion, showing, beyond all question, that the election and qualification do not mean one and the same thing. It will be observed, that the terms, on which alone the governor can appoint, are a vacancy in the office ; and that there can be a vacancy in an office when there is a person in possession, whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and dvities of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms, to say, that at the time the governor issued his commission to the relator, the office was vacant, for no person can plausibly deny that the respondent was the rightful possessor of the office, at that time. The pri- mary object of the framers of the amended constitution (whether wisely or not, it would be unbecoming in me to say), was^ to diminish, as far as practicable, executive patronage; and in accordance with this policy, it was thought proper, to confine the power of appointment to the single case of a vacancy in office. What, then, is meant by a vacancy in the office? Surely, an office cannot be vacant, when it is filled by a person in the legitimate exercise of all its functions, in the lawful enjoyment of all its emoluments. It would be a waste of time, to enter into an elaborate argument to prove a proposition so plain. But disguise it as you may, this is the case here ; at the time the go- Commonwealth v. Hanley. 677 (Vacancy in office. ) vernor issued his commission to the relator, the present incumbent, beyond all' controversy, was the legal officer of the court, his time had not expired, nor could he be replaced except by a person fulfilling all the constitutional and legal requirements. The relator's proposition involves the legal absurdity, that two persons can be the lawful officer of the same office, at one and the same time. In this case, we have to choose between the elect of the people and the a,ppointee of the governor, and we think we cannot assail the intention of the constitution, by inclining to the former rather than to the latter ; the re- spondent was elepted by the people, and we see nothing by which his title to the qffice has been affected or impaired. Judgment for defendant. In Pennsylyania, if a vacancy occur in the office of judge, within three months of the general election, it is not competent for the electors to fill the same at that election ; the appointee of the goyernor, how- ever, only holds until the first Monday of December in the same year, when another vacancy in the office occurs, which may be again filled by executive appointment. Commonwealth v. Maxwell, 37 Penn. St. R. 444. And the law is the same in Kansas. State v. Cobb, 3 Kansas 32. If an office be, in fact, full, though by an irregular election, wbich has not been contested, the electors cannot treat it as vacant, and proceed tp fill it by a new election. Commonwealth v. Baxter, 35 Penn. St. R. 368, In Missouri, the courts have decided, in accordance with Common- wealth V. Hanley, that an officer who holds for a limited term and until his successor is duly elected and qualified, can only be displaced by one elected by the people, at an election held at the proper time. State v. Jenkins, 43 Mo. 361 ; and see State v. Robinson, 1 Kansas 17 ; State ®. Benedict, 15 Minn. 199. In California, in case of a vacancy in the office of judge by the resignation of the incumbent, the governor's ap- pointee only holds until the qualification of the person duly elected by the people. People v. Rosborough, 14 Oal. 180. See State v. Taylor, 15 Ohio St. R. 137. There can be no appointment to fill a vacancy, until the office has once been full. ExparteDodd, 6 Eng. 153. In that case, Johnson, C. J., 678 Commonwealth v. Hanley. (Vacancy in office.) said, "we consider it perfectly clear, that the vacancies contemplated necessarily presupposed that the offices had been once filled, and that the provision for filling those vacancies was solely designed to embrace the unexpired portion of the term that might remain after the happen- ing of such vacancy." And see Johnston v. Wilson, 2 N. H. 802. This question has been the subject of discussion in the senate of the United States, and the doctrine of Ex parte Dodd, is that held by them. In the year 1814, President Madison granted commissions to ministers to negotiate the treaty of Ghent, in the recess of the senate. The prin- ciple acted upon in this case, however, was- not acquiesced in, but pro- tested against, by the senate, at their succeeding session ; and on a sub- sequent occasion (20th April 1822), during the pendency of the bill for an appropriation to defray the expenses of missions to the South Ame- rican states, it seemed distinctly understood to be the sense of the senate, that it is only in offices that iDecome vacant during the recess, the pre- sident is authorized to exercise the right of appointing to office, and that, in original vacancies, where there has not been an incumbent of the office, such a power, under the constitution, does not attach to the executive. And in a report of a committee of the senate, made on the 25th April 1822, it is declared, that the words, "all vacancies that may happen during the recess of the senate," mean vacancies occurring from death, resignation, promotion or removal. Sergeant Const. Law 873. The same point was decided by Caldwell, J., in the circuit court of the United States for the eastern district of Arkansas, at the April term 1868, in the case of Schenck «. Peay; and by the supreme court of Illinois, in People v. Forquer, Breese 68. And see Story Const. § 1559 ; contra, Clarke v. Irwin, 5 Nevada 112. 679 Foster v. Soarpf. In the Supreme Court of Ohio. DECEMBER TERM 1864. (Reported 15 Ohio Statb Reports 532.) l^Elections to fill vacancies.] If the sheriff neglect to give notice to the electors, prior to the day of election, of a vacancy in a particular office, which is to be filled by them, in consequence vyhereof the great body of the voters have no notice of the vacancy, but a small number of them cast then- votes for a single candidate and no votes are cast for any other, such election is irregular and invalid. Error to the court of Common Pleas of Logan county. The facts are stated in the opinion of the court. Thurman, Shelby and Kernan, for the plaintiff in error. Stanton and Allison, for the defendant in error. Brinkerhopf, C. J., delivered the opinion of the court. On the second Tuesday of October 1860, Anthony Casad was properly elected probate judge of Logan county, for the full term of three years, and was duly qualified and commissioned ; having held the office until the 11th Octo- ber 1861, less than thirty days prior to the time of the next annual election for that year, he died, leaving a vacancy in the office, which, on the next day, was filled by the governor, by the appointment of Samuel B. Taylor to the office, until a successor should be elected and qualified. On the second Tuesday of October 1862, Tay- lor was regularly elected to the office ; but the governor, instead of commissioning him for the unexpired term of Casad, as he ought to have done, commissioned him for the full term of three years ; see State v. Taylor, 15 Ohio 6t, E. 137. This was done, doubtless, under a mistaken 680 Foster v. Scarff. (Elections to fill vacancies.) apprehension of the provisions of the constitution on the subject, and the same mistake seems to have been and to have continued general in the minds of the electors and officials of that county. Accordingly, in the fall of 1868, when the general elec- tion of that year was approaching, at which an election of probate judge, for the full term of three years, to succeed the full term to which Oasad had been elected, and then temporarily filled by Taylor, was, by law, re- quired to be holden, the sheriff of the county published, in conformity to law, his proclamation to the electors of the county, for the election, at the ensuing second Tuesday of October, of a governor, lieutenant-goveruor, judge of the supreme court, auditor of state, treasurer of state, member of the board of public works, senator, member of the house of representatives, county treasurer, surveyor, infirmary directors and county commissioner, but he omitted to make any mention therein of the election of a county judge. Antagonistic nominations of candidates for all the offices named in the sheriff's proclamation, were openly made and published, in good time before the election, by the different parties, but none was made or published for the office of probate judge ; and the great mass of the electors of the county, of every grade of intelligence, remained in actual iguorance of the fact, that the office was being balloted for, and that a probate judge ought, under the law, to be chosen at that election, until about three o'clock in the afternoon of the day of election, when it beeanie known in some, perhaps, in naost of the townships, that the plaintiff in error, Sidney B. Foster, had been and was being voted for as a candidate for the office of probate judge. The whole number of votes in the coiinty oast at that election, was 4339 ; 913 votes, less than one-fourth of the whole number, were cast for the plaintiff in error, for the office of probate judge; and no other votes were oast for that office, In four out of seventeen townships in all, no Foster v. Sgarff. 681 (Elections to fill vacancies.) votes were east for probate judge ; and in one other town- ship, only two votes. Foster was, by the county canvas- sers, declared to be duly elected; and the defendant in error, 'William D. Scarff", an elector of the county, having proceeded in the court of common pleas to contest the va- lidity of the election of Foster, according to the statute, that court, upon the state of facts substantially as above given, adjudged the election of Foster to be invalid ; and the facts and evidence having been brought upon the re- cord, by bill of exceptions, this petition in error is prose- cuted for the reversal of that judgment. The question is, whether the court below erred in holding the election of Foster to be invalid. The term "election" implies a ehoiee by an electoral body, at the time, and substantially in the manner and with the safeguards, provided by law, of a qualified person to an office. A vacancy may exist, or may be about to occur, in an office, which vacancy a given electoral body may have the unquestionable right to fill by election ; and that electoral body may manifest its choice in a manner which leaves no doubt of the fact of choice, but by means unknown to our laws, as, by a vivd voce vote, or by a vote at times and places not recognised by law ; and yet no one would contend for the validity of such an election. The act of choice must be made, the election must be conducted, as prescribed hj law, and under the safeguards which the law affi3rds; without the existence of these, at least, in substance, however unmistakable the fact of choice, there is no election in law ; the act of election derives all its force and validity from its substantial conformity to the constitution and laws, I^Tow, among the material provir sions of our constitution and laws, in respect to elections, and not the least important among them, are the safe- guards which they prescribe, by means of notice, against surprise upon the electoral body. The importance of this safeguard is distinctly recognised in the constitution, where, in the 13th section of the 4th 682 Foster v. Scarfp. ^ (Elections to fill vacancies.) article, it is provided, that "in case the office of any judge shall become vacant, before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, until a successor is elected and qualified ; and such successor shall be elected, for the unexpired term, at the first annual election that occurs more than ihirty days after the vacancy shall have happened." From this, the implication is manifest, that the constitu- tion intends that, in respect to elections to fill vacancies in the office of judge; at least thirty days' time for notice of the election shall be affi^rded. And the 4th section of the act of 3d May 1852, "to regulate the election of state and county officers" (3 Curwen's Stat. 1920), provides, that it shall be the duty of the sheriff, and he is hereby required, fifteen days, at least, before the holding of any special election, to give public notice, by proclamation, throughout his county, of the time of holding such elec- tions, and the number of officers, at that time, to be chosen ; one copy of which shall be posted up at each of the places where the elections are appointed to be holden, and inserted in one newspaper published in the county, if any be published therein." If this legislation, intended to guard the elector against surprise, be complied with, every elector finds posted up, at his place of voting, an enumeration of the offices to be voted for, and is forewarned by public proclamation in the newspapers. If it be not complied with, the case before us shows, that the great body of the electors of a county may go to the polls, vote and return to their homes, in ignorance of existing or impending vacancies in office to be filled. But it is said, the law presumes that every man knows the law, or is bound by it, whether he actually knows it or not, and one man is not to be deprived of his rights, through his neighbor's ignorance of the law. No one denies these general principles ; but they, like other gene- ral legal principles, are not procrustean in their application, The constitution and the legislation under it recognise Foster v. Scaefp. 683 (Elections to fill vacancies.) the policy of notice to electors, other than that which arises from mere legal presumption; and the right of no man is hereby invaded, for no man has a right to filch an office through the medium of a surprise upon the great body of the electors.* Moreover, a knowledge of what vacancies in office exist or impend, is not a matter of law merely ; if is quite as much a matter of local history as of law ; and the statute supposes that, with this history, the body of electors cannot be expected to be, at all times, familiar; and in the case before us, the circumstances show, that the mistake, out of which the whole matter originated, involved the governor of the state as well as the electors of Logan county, and does no discredit to their character for intelligence ; and the sheriff's procla- mation, by embracing many other offices, but omitting that of probate judge, was calculated to mislead instead of enlightening them. Here, then, was an election held without notice to the body of the electors of Logan county, without notice such as the laws prescribe, and without notice in fact from any other source whatsoever; and for this reason, and irre- spective of any circumstances of concealment and strata- gem, on the part of the few electors who did vote,t which appear in the record, we are of opinion, that the election, as to probate judge, was irregular and invalid. In deciding this case, however, we do not intend to go beyond the case before us, as presented by its own peculiar facts, We do not intend to hold, nor are we of opinion, that the notice by proclamation, as prescribed by law, is per se, and in all supposable cases, necessary to the validity of an election ; if such were the law, it would always be in the power of a ministerial officer, by his misfeasance, to prevent a legal election. "We have no doubt that, where * To appreciate the value of this argument, the reader ought to under- stand whether Foster was in political accord with the court. Upon this question the author is uninformed. t 913 votes were cast for Foster. 684 Foster v. Scarff. (Elections to flU vacancies.) an election is held, in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid. But where, as in this case, there was no notice, either by official proclamation, or in fact, and it is obvious, that the great body of the electors was misled, for want of the official proclamation, its ab- sence becomes such an irregularity as to prevent an actual choice by the electors, prevents an actual election, in the primary sense of that word, and renders invalid any sem- blance of an election which may have been attempted by a few, and which must operg,te, if it be allowed to operate at all, as a surprise and fraud upon the rights of the many. Judgment affirmed. There is some conflict of decision as to the validity pf a special election to fill a vacancy, which is held without notice to the electors. In New York, it has been determined, that where the office of a justice of th^ supreme court became vacant by the death of the incumbent on the 23d October, when it was too late for the secretary of state to give notice thereof, it was competent for the electors of the district to elect a person to fill the vacancy, at the ensuing election on the 6th November following, and that such election was valid notwithstanding the want of notice. People v. Cpwles, 13 N. Y. 850. So, in Michigan, it was held, that where a city charter requires a vacancy in a city office to be filled, at the next annual election, and directs the clerk to give notice thereof, and of the offices to be filled, and the notice makes no mention of an existing vacancy, the default of the clerk will not invalidate the elec- tion ; the electors are presumed to have notice of the vacancy from the publication of the prpceedings qf the city council. People v. Hartwell, 12 Mich. 508. The same point has been ruled in Wisconsin ; Stq,te v. Orvis, 20 Wis. 235 ; States. Goetze, 22 Ibid. 363: and in Iowa; Dishon V. Smith, 10 Iowa 218. In Indiana, it was decided, that an election for county auditor was not void by reason of want of notice. State v. Jones, 19 Ind. 356. But in the same state, it was held, that an election to fill a Commonwealth v. Conyngham. 685 (Election of judges.) vacancy cannot be held, where it did not occur long enough before the election, to enable the proper notice to be given. Beal v. Ray, 17 Ind. 554. And in California, it is said that the governor's proclamation is essential to the validity of a special election to fill a vacancy. People ». Porter, 6 Cal. 36 ; People v. Weller, 11 Ibid. 49 ; People v. Martin, 13 Ibid. 409 ; People «. Rosborough, 14 Ibid. 180. COMMOlSrWEALTH V. CoNTNaHAM. In the Supreme Court of Pennsylvania. OCTOBER term 1870. (RJEPOBTED 3 Brewstek 214.) [^Election of judges^] The constitution having provided that judges shall be elective by the people, it is not in the power of .the legislature to create a new court, within part of the territorial jurisdiction of an old one, and to provide that the judge of the old court shall hold the new one ; the judge of the itew court must be chosen by the people of his district. This was a quo warranto issued, on the suggestion of the attorney-general, against John 'E. Conyngham, to inquire by what right he claimed to exercise the office of recorder of the mayor's court of the city of 8'cranton. By the act of 23d April 1866, incorporating the city of Scranton, there was created a mayor's court for the said city, and it was provided that the president judge of the eleventh judicial district should be recorder of the said city, and should be the president judge of the said mayor's court. The respondent was elected president judge of the eleventh judicial district at the general election in 1851, and was duly commissioned; and by virtue of the said act he claimed to exercise the office of recorder of the said city. To an answer setting forth these facts, the attorney- 686 Commonwealth v. Conynsham. (Election of judges.) general demurred, on the ground that the constitution requires all judges to be elected by the people. Brewster, attorney-general, Ward and Handley, for the commonwealth. Hand and Willard, for the respondent. Thompson, C. J., delivered the opinion of the court. The writ in this case was issued upon the relation of the attorney-general, to test the right of the respondent to exercise the office of recorder of the mayor's court of the city of Scranton, in Luzerne county, under the provision's of an act incorporating said city, passed the 23d of April 1866,. and the supplement thereto of the 30th of March 1867. At our sitting in July last, in the eastern district, having heard the arguments in the case previously, we entered judgment on the issue made, in favor of the com- monwealth, and consequently, _ of ouster against the re- spondent, and reserved to the present time the announce- ment of our reasons for the judgment so entered, some of which we propose now briefly to state. By the first of the above-mentioned acts, the inhabi- tants embraced and residing within the territorial limits of the township of Providence, the borough of Scranton, the borough of Hyde Park and the borough of Provi- dence, in the county of Luzerne, are constituted a corpo- ration by the name and style of the City of Scranton, and divided into twelve wards. In addition to the usual powers conferred on such municipal corporations, a mayor's court is established by the act, to be h olden quar- terly by the mayor, recorder and aldermen, or any three of them, the mayor or recorder being one, "with full power," says the act, "to hold and keep a court of record within said city, four times in each year, to continue one week each," and longer, by adjournment, if necessary. The criminal jurisdiction of this court is, by the act, to Commonwealth v. CoNYNaHAM. 687 (Election of judges.) extend to " all such offences, committed or arising within the limits embraced by the city, as are triable in other courts of quarter sessions in the commonwealth," with the power to forfeit and issue process for the recovery of all recognisances forfeited therein, and " generally," says the act, "to do all such matters and things within the said city, as any court of quarter sessions of the peace of and for any county within this commonwealth, may or can do within such county." Thus, there is established, within the city, a court of quarter sessions of general jurisdiction, as fully and clearly as any other court is or can be estab- lished within any county of the commonwealth. In addition to this general criminal jurisdiction, it is provided in the 15th section of the act, as follows: "That the mayor's court for the city of Scranton shall have original civil jurisdiction to the same extent as is con- ferred by law upon the court of common pleas of Luzerne county, in all cases where the defendant shall reside within the limits of said city, and also of all amicable actions where the parties shall, by writing, institute the same in said county ; and the remedies, processes, plead- ings and costs shall be similar to like proceedings in the court of common pleas in said county ; and the said mayor's court shall also have the same chancery powers and juris- diction, within the said city, as is now by law vested in the courts of common pleas ; and shall also haVe the same power and jurisdiction, within the said city, as is now conferred by law upon the orphans' court of Luzerne county." Jurisdiction of divorce cases was afterwards conferred by the supplement to the act of incorporation; power is also given to this court to issue writs of certiorari to judgments of the aldermen of the said city as other courts of common pleas do. It possesses all the machinery and officers of other courts of record, viz: a clerk, seal and records, and its judgments are revisible on appeal and writ of error from this court, as are the judgments of other courts of general jurisdiction. It is, therefore, a court of 688 Commonwealth v. Conynoham. (Eleetion of judge's.) record of general civil and criminal jurisdiction, within its territorial boundaries, beyond a question, and is so ex- pressly declared ; even without this express declaration, it would, from its constitution and powers, be a court of record. Furthermore, the 19th section of the act provides for the removal of all actions, prosecutions and appeals, at the election of the parties or either of them, from the judg- ments of justices of the peace, pending in the common pleas and quarter sessions of Luzerne county, having arisen within the limits of the city of Seranton, into the mayor's court for determination ; and the arbitration laws of the commonwealth are extended to the said court. These facts illustrate most clearly what we have already said, that the court in qutestion is a court of record of general jurisdiction^ as well as a municipal court; and it follows, that its judges are required by the constitution of the commonwealth, to be elected by the qualified electors included in the boundaries of the city, and cannot be designated and appointed by an act of the legislature. The respondent claims to hold and exercise the office of judge of the mayor's court of the city of Seranton, thus established, under and by virtue of the 30th section of the act, which provides " that the president judge of the eleventh judicial district of the commonwealth, or of that district of which the county of Luzerne shall form a part, shall be the recorder of the said, city," and shall receive an annual salary of |500 for his services, payable one half by the state and the other half by the city. This is the commission relied upon as the authority for exercising the office of recorder of the city, by the respond-enti We have shown that the mayor's court is not only a municipal court, but a court of general civil and criminal jurisdiction — is, in fact, a court of an independent judicial district. Now, in such a case, the constitution expresses itself in no ambiguous terms ; it says, in Art. VI., sect. 2 (amendment of 1850): "The judges of the supreme court, of the several courts of common pleas, and of such other courts of record Commonwealth v. Conyngham. 689 (Election of judges.) as are or shall be established by law, shall be elected by the qualified electors of the commonwealth, in the manner following, to wit, the judges of the supreme court by the qualified electors of the commonwealth at large ; the presi- dent judges of the several courts of common pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside, or to act as judges." Here is a distinct mandate of the constitution, requiring the election of the recorder of this court by the people of the district or city ; and whatever the constitution enjoins to be done in a particular way, amounts to a prohibition of all other modes and methods of doing the same thing. Page V. Allen, 58 Penn, St. R. 338. We have shown this mayor's court of Scranton to be a court of record, not only from its nature and necessary inherent powers, in view of its jurisdiction, but by the express words of the act creat- ing it. The constitution requires the judges of "such courts of record as are or shall be established by law, and all other judges required to be learned in the law, (to be elected) by the qualified electors of the respective districts over which they are to preside, or act as judges." That the recorder is a judge, all text-writers, who speak of the office, affirm ; the references in the argument of the attorney-general, clearly establish this. In 1 Bac. Abr. 657, it is said, that in the court of Hustings, at G-uild- Hall, before the lord mayor and sherift's, "when any matter is to be argued and determined, the recorder sits as judge with the mayor and sheriffs, and gives rules and judgments therein." In Respublica v. Dallas, 3 Yeates 314, Shippen, C. J., said, "in the strict legal sense of the word, the recorder is a judge ; he is a justice of the peace, and a constituent and principal member of a court of record." In a constitutional view, the name is nothing; if it be the recorder's duty to act as judge of a court, as it certainly is under the act of incorporation, the consti- 44 690 Commonwealth v. Conyngham. (Election of judges.) tution requires that lie be elected by the qualified citizens over whom he is to judge. In this state, the recorders of the naayors' courts have always been appointed from per- sons learned in the law, and have ever been recognised as judges, with fixed salaries and specified terms of office. The act in question, by indirection, recognises this as a necessary qualification; no one can be recorder, by its terms, who is not the president judge of the court of com- mon pleas of the judicial district, for the time being, in which the county of Luzerne shall be ; as such president judge is required by the constitution to be learned in the law, it follows, that the recorder's office being filled by that incumbent, he will be learned in the law also. "Whe- ther, therefore, we regard this mayor's court as within the constitutional category of " such other courts of record as shall be established by law," or, that the recorder is to be regarded as a judge, or that he is required to be learned in the law, in either and all of these contingencies, he, by the constitution, must be elected. These requisites all co- exist in the constitution of this court, the provision, there- fore, to confer the office of recorder upon the respondent directly by an act of assembly,, was a clear violation of the constitutional mandate for an election ; he could only fill that office by the choice of the people of the city at the polls. Nov would he have been eligible, by election, to have filled the office, holding, as he did, the office of president judge of the common pleas of Luzerne county. Art. V., sect. 2 of the constitution. prohibits judges holding "any other office of profit, under the commonwealth," during their continuance in office ; and we have seen that a salary is attached to the office of recorder in this case. But it was contended in argument, that the respondent having been elected president judge of the common pleas of Luzerne county, by the electors of the territory em- braced in the city of Scranton, in common with the other portions of the county, he was, therefore, an elected re- Commonwealth v. Conyngham. 691 (Election of judges.) corder, in the sense of the constitution. This argument concedes the necessity of an election ; but how, by one election, he could hold two distinct and independent offices, such as president judge of the common pleas and recorder of the mayor's court, is not so clear; we think the position totally inadmissible in its application to the question in hand and needs no argument to refute it. By such a process, every township in the county might be included in mayors' courts, and the judicial business, diverted from its legal centre, come to be administered in isolated portions of the county. "We should not fully protect and conserve the constitution of our common- wealth, as we are bound to do, were we capable of yield- ing to such suggestions ; nor ought we to be deterred from giving full scope to every one of its provisions, by appeals to consequences arising from misinterpretation and conse- quent violation; were such considerations to prevail, the instrument, in time, would disappear altogether, by attri- tion of repeated encroachments, and its very existence become traditionary. But we, by no means, concede the consequences anticipated and deprecated in the argument of the respondent's counsel; what they may be, is not before us ; it is time enough to treat of them when they come before us. In nothing said in this opinion is it, in the least,' in- tended to reflect on the learned and able president of the common pleas who acted as recorder of the mayor's court of Scranton; that he was mistaken in assuming the dis- charge of those duties, we believe, but we fully accord to him the utmost conscientiousness in so doing. Thus we have given some of the reasons inducing the entry of judgment in this case, in July last; more might be added, but we regard further elaboration unnecessary. "We feel ourselves constrained to decide that the respondent was not legally the recorder of the mayor's court of the city of Scranton, and enter judgment accordingly. Judgment for the commonwealth. 692 Commonwealth v. Contngham, (Election of judges. ) Perhaps the greatest defect In our political system, is an electire judiciary, holding office for a limited term, and entrusted with exten- sive discretionary powers for the determination of political questions, especially those arising in cases of contested elections. Our British ancestors considered it a great triumph of free principles when, by the act of settlement, the judges were made independent, by the granting of commissions during good behavior, instead of holding, as formerly, at the pleasure of the crown. And at the date of the American revolu- tion, this was considered one of the most precious of the liberties which the early colonists had brought with them from the mother-country. So excellent was this provision esteemed, that it has been incorporated into most of the reforms of modern Europe, whilst the American people, not having, until recently, experienced the evils of the opposite system, have abandoned it, at the instigation of demagogues who court the favor of the people by pandering to their worst passions. Chancellor Kent says that "in monarchical governments, the inde- pendence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics, it is equally salutary, in protecting the constitution and laws from the encroachments and the tyranny of faction." 1 Kent Com. 293-4. "The organization of the judicial department is not so essential, as the supply of intelligent, learned and honest judges to administer the laws. The danger to be apprehended, as all past history teaches us, in governments resting, in all their parts, on universal suffrage, is the spirit of faction, and the influence of active, ambitious, reckless and unprincipled demagogues, combining, controlling and abusing the popular voice for their own selfish purposes. Much more grievous would be such results, when applied to the election of judges, for that would tend to break down and destroy the independence and integrity of the administration of justice." Ibid. 295 note. Since this innovation upon the earlier and wiser policy, of the republic, the unwelcome truth is forcing itself upon the attention of every culti- vated mind, that the standard of judicial ability is steadily decreasing ; the truly learned lawyer (with a few notable exceptions which only prove the rule) stands no chance of elevation to the bench ; the man to whom Coke and Feame have been familiar from his student-days, is not the one selected to decide upon questions affecting the life, liberty and property of his fellow-citizens ; but, as a general rule, it is the half- Commonwealth v. Conyngham. 693 (Election of judges.) educated pretender, who knows just enough law to try a quarter ses- sions case, in a decent manner, and who has little enough self-respect to play the demagogue, and court the suffrages of the dear people, who is chosen to administer our laws in the courts of justice. We do not expect superhuman acts of heroic virtue from frail men, but so unmitigated have become the evils of the present system, that men of sense have ceased to expect honesty or impartiality in our judges in the decision of political questions. Indeed, so far has this spirit of partisanship been carried upon the bench, that we have seen grave constitutional questions, involving the most sacred rights of the people, after having been solemnly decided by courts of last resort, deliberately overruled on a change in the political complexion of the court, resulting from a popular election. The system has degraded the judiciary, ren- dered them the slaves of party, and lost for them that respect which was, in happier times, cheerfully accordedby the people. The decision in Commonwealth «. Conyngham, clearly renders un- constitutional the holding of the mayor's court of Carbondale ; Purd. Dig. 703 ; and its effect upon the recorder of the city of Philadelphia, is a subject of grave consideration; though not now a judge of a court of record, he is still a judge, with power to issue the writ of habeas corpus; and above all, he is a justice of the peace, ex officio, and the constitution is as explicit in regard to the election of justices of the peace, as it is with respect to the election of judges ; its evident purpose was, that no man should pass upon the rights of his fellow-citizens, either civilly or criminally, who did not derive his authority from the votes of the people of his district. It is to be hoped that the attorney -general will test the right of this officer, as he has done that of Judge Conyngham. See Rhoads v. Commonwealth, 15 Penn. St. R. 277; Schumann v. Schu- mann, 6 Phila. 318 ; Gibbons v. Sheppard, 65 Penn. St. R. 32. These cases do not settle the question, as it is evident that the validity of the recorder's commission could not be brought into question collaterally. The point decided in Commonwealth v. Conyngham, has been before the supreme court of California on several occasions; in People v. Hastings, 29 Cal. 449, it was decided that, under a constitutional pro- vision, that assessors and collectors "of town, county and state taxes should be elected by the qualified electors of the district, county or town in which the property taxed for state, county or town purposes is situated, a tax was invalid which had been assessed by an officer 694 Commonwealth v. Conyngham. (Election of judges.) elected for a district embracing a more extended area of territory than that in which the property in question was located. In People v. Kelsey, 34 Cal. 470, the same court determined, that it was not com- petent for the legislature to transfer the powers of an office which the constitution requires to be filled by election, to the incumbent of an- other office. And in Christy v. Supervisors of Sacramento County, 39 Cal. 3, that when the constitution declares an office to be elective, it cannot be filled in any other manner. But in this last case it was de- teimined, that where an office has been filled by election, it is competent for the legislature, to extend the term of the incumbent, provided the whole term, when extended, do not exceed the time limited by the constitution. A similar question arose in Connecticut, in the case of Brown v. O'Connell, 36 Conn. 433. The constitution of that state provides that judges " shall be appointed by the general assembly, in such manner as shall, by law, be prescribed ;" the legislature erected a police court for the city of Hartford, and provided for the appointment of a judge of that court by the common council of the city ; but it was held by the supreme court of errors, that such appointment was void, that the power of appointment was in the general assembly, required for its exercise the direct action of that body, and that its functions could not be delegated to the common council. And the doctrine is fully recog- nised in New York, in People v. Raymond, 37 N. Y. 438; Peopte v. Acton, 48 Barb. 534 ; and People v. Blake, 49 Barb. 9. Commonwealth v. Aglab. In the Municipal Court of the City of Boston. JANUARY TERM 1835. (Eeported Teacher's Criminal Oases 412.) l^Griminal prosecutions for illegal voting.] A defendant is not liable, criminally, for illegal voting, unless he knew, at the time, that he was not a qualified voter, and that he was doing or attempting to doan illegal act ; if he honestly believed that he had a right to vote, it is not a wilful act, punishable by iBdictment. To constitute a wilful aider and abettor of such offence, the party must have known, at the time, that the principal was not a qualified voter ; and with such knowledge, must have said or done something designed and calculated to encourage him to vote. The inspectors may refuse the vote of a disqualified person, though his name be on the registry list. This was an indictment charging Francis Aglar with having illegally attempted to vote at an election in the city of Boston, on the second Monday of !N'ovember 1834, and Ralph Huntingdon with having aided and abetted him in so doing. The defence of Aglar rested on the ground, that he acted innocently, and under a mistake of right; that of Huntingdon, that he assisted Aglar, and encouraged him to vote, finding his name on the list of qualified voters, and supposing that^to be conclusive evi- dence of his right. Parker, for the commonwealth. Hallett, James and Park, for the defendants, Thacher, J., delivered the following charge to the jury. The defendants are on trial for several violations of the law of 1813, ch. 68, which was intended effectually to secure to the people of this commonwealth the right of 696 Commonwealth v. Aglar. (Criminal prosecutions for illegal voting.) suffrage. The accusation against Francis Aglar is, that he, knowingly, designedly, wilfully and fraudulently at- tempted to vote, and give in a ballot of persons voted for, at the election of a representative to the congress of the United States from the first district, and for governor, lieutenant-governor, counsellors and senators, and for representatives to the general court of this common- wealth, on the second Monday of ]!fovember 1834, in the city of Boston, said Aglar being an alien born, and not having been naturalized, and so not, having a right to vote at that election, and well knowing himself not to be legally qualified to vote at said meeting. The charge as to E.alph Huntingdon is contained in the same indict- ment, and accuses him of the offence of wilfully aiding and abetting the said Francis Aglar in attempting so to vote illegally as aforesaid. As the case relates to the freedom and purity of elections, the court has deemed it important, and has not felt disposed to restrain the counsel in the examination of witnesses, or in their arguments. The indictment is founded on the third section of the act of 1813, ch. 68, which is in these words: "If any per- son, knowing himself not to be legally qualified to vote, at any meeting for the choice of governor, lieutenant- governor, senators and counsellors, representatives to the general court, or representatives to congress, shall wilfully give in, or attempt to give in, a vote or ballot for any of the same, then voted for at any such meeting, every per- son so offending shall forfeit and pay a fine therefor, not exceeding the sum of fifty dollars; and any person who shall wilfully aid or abet any person, not legally qualified as aforesaid, in voting or attempting to vote, contrary to the provisions of this act, shall forfeit and pay a fine, not exceeding thirty dollars, for each and every such offence." Upon you rests the responsibility of the verdict ; and that you may correctly perform your duty, you should understand the nature of the offence. The party voting Commonwealth v. Aglak. 697 (Criminal prosecutions for illegal voting.) or attempting to' vote, must know, at the time, that he is not a qualified voter, and that he is doing or attempting to do an unlawful act ; if he voluntarily give in a vote, with this knowledge, at the time, his offence is consum- mated ; it is done wilfully, and he incurs the penalty.* To constitute a wilful aider and abettor in such an act, he too must know, at the time, that the person was an un- qualified voter, and had no right to vote; and with such full knowledge, he must have done or said something which, in the opinion of the jury, was designed and cal- culated to encourage the party to vote or to attempt to vote. If the person charged as an abettor should honestly, though erroneously, believe, at the time, that the party voting or attempting to vote, had a right to do so, he will not be within the statute; for the offence, both of the principal and the abettor, is made, by the statute, to con- sist in having the guilty knowledge of the lack of legal qualifications, and the wilful intent to do the unlawful act ; therefore it is, that knowledge is not to be presumed in such case, but is to be alleged and proved like any other fact. To make a person guilty of harboring a traitor or a felon, he must have, at the time, a full knowledge that the treason or felony has been committed ; without this knowledge, no guilt can possibly be imputed to an indi- vidual who shall extend to the traitor or felon the common offices of humanity. I consider that a free people ought to be jealous of their rights ; it is the only way to presierve them.f Foreigners, * "By wilful," says Wilson, J., 1 East 563, n., " I understand, contrary to a man's conviction." t The American people appear to have lost much of that sturdy spirit of freedom that animated their ancestors, at the period of the Kevolution ; they were then, in the main, a nation of unmixed blood, and imbued with all that jealousy of any encroachment on their rights, that ever pervaded the ranks of their Anglo-Saxon forefathers ; now they appear to be almost a different race of people, and the true idea of political freedom is fast disappearing from among them ; but unless this be revived, the inevitable result must be anarchy or despotism. Even their dread of a bastard public opinion, and the readiness with which they submit to encroach- 698 Commonwealth v. Aglar. (Criminal prosecutions for illegal voting.) not naturalized, who shall presume to intrude into elec- tions, should be indignantly resisted; for the sovereign power actually resides in the people ; they elect their rulers to administer the government, according to the constitu- tion ; when an alien, not naturalized, presumes to vote at an election of our rulers, it is a wrong done to every citi- zen. It is the nature, perhaps, the life of free govern- ments, to generate parties ; but when a foreigner, or other unqualified voter, gives in a ballot at an election, it is a wrong to the voters of every party, without reference to the candidate for whom he votes ; if one party should, by such means, gain an unlawful victory, at one election, their antagonists will perhaps prevail, by like means, at the next. The state will become corrupt, and gradually lose its free character ; elections will come to be decided by illegal votes, and the people will, in time, find them- selves governed by rulers not of their choice.* I say, therefore, that it is a common injury ; and I hope that, while any virtue remains in the people, they will be watchful over each other, and so preserve the foundation of the free body politic, .If any citizen should become so recreant to duty, and to the principles of free govern- ment, as wilfully to aid and abet foreigners in attempting to vote at our elections, before they shall have been natu- ralized, he ought to be made to suffer the penalty of the law. But I am bound to add, that there has been, I believe, a neglect of caution, in times past, which may have led many well-disposed foreigners to consider themselves legal voters, when they were not, in fact, entitled to that privi- lege ; having resided here for years and paid taxes, finding also their names on the lists of voters, they have been per- ments upon their politloal rights by the overgrown corporations that exist among them, should convince the candid observer of this unwelcome truth. The individual is lost in the community. * The learned judge has graphically described the state of the nation, In the year of grace 1871. Commonwealth v. Aglar. 699 (Criminal prosecutions for illegal voting.) mitted to vote and serve as jurors, without distrusting their own right or having it questioned by others. But until an alien has been naturalized, he is not a citizen, and is not entitled either to vote or to serve on a jury; the payment of taxes is a return for the protection of the government ; neither length of residence nor payment of taxes will constitute citizenship. If he was not born in the country, or, if born abroad, if his parents were not citizens of the United States, not having renounced or forfeited their allegiance, he is a foreigner, and must con- form to the laws which regulate naturalization, before he can hold real estate, or exercise the freedom of election, as a citizen of the country. It follows, from these views of the law, that if a for- eigner, who has not been naturalized, should vote at an election, his vote not being legal, yet, if he honestly be- lieved, at the time, that he had a right to vote, it would not amount to that wilful act which is forbidden in the statute. And so also, if a person should aid and abet such foreigner in attempting to vote, if it should appear to the jury, that he honestly believed that the foreigner had a right to vote, they ought to acquit him of the offence. "Whether a person is a qualified voter, is a question com- pounded of law and fact; those who prepare the lists may inadvertently err in their judgment and lead others into error. If an alien, having resided in the country for many years, and finding his name on the list of voters, should use the privilege without question, it would be for the jury to consider, whether he might not naturally be led to believe that he was a qualified voter; but if, presenting himself at the polls, and being interrogated, he should falsely assert, that he had conformed to the laws of natu- ralization, a jury might reasonably infer from that false- hood, that he knew, at the time, that he was not a legally qualified voter. Even a citizen may be ignorant of the law, and may innocently believe that, if the mayor and aldermen have placed the name of a person on the list of 700 Commonwealth v. Aglar. (Criminal prosecutions for illegal voting.) voters, it is conclusive evidence of his right, not to be questioned by the ward officers; whether such citizen acted wilfully, in aiding and encouraging an unqualified alien to vote or to attempt to vote, must be decided by the jury, under all the circumstances of the case. It has been argued, that the ward inspectors in this city may not question the right of one whose name is borne on the list of qualified voters, nor refuse to receive his vote ; on this point, I have been requested to state my view of the law. 'No person, although a qualified voter, is per- mitted to vote at an election, unless his name is borne on the list ; although the name of an unqualified person may be borne on the list, by mistake, it would not authorize him to vote ; he would do so at his peril. The name on the list will justify the inspectors in receiving his vote, be- cause it is not declared to be their duty to institute an in- quiry ; they may, however, lawfully refuse the vote of one who is not a legal voter, though his name be borne on the list, when that fact has come to their knowledge, by the confession of the individual himself, or otherwise. In refusing to receive an illegal vote from an unqualified person, they do no injury to him, they prevent fraud, and they perform a meritorious act to the public, since it tends to keep elections pure, and to perpetuate our government and laws in pristine health and vigor. It is part of the ministerial office of the inspectors, to prevent " all frauds and mistakes in elections," and to place a check against the name of each voter. In refusing the vote of one whose name is on the list, they would act upon their own risk, and would, undoubtedly, be liable to the action of the party, if he were a legal voter; just as the mayor and aldermen would be liable to the action of a qualified citi- zen, whose name they should wrongfully refuse to insert on the list, whereby he should lose his privilege ; still, if the party had no right to vote, at the time, he would sus- tain no wrong in either case, and therefore, he would be entitled to no redress. Commonwealth v. Aglar. 701 (Criminal prosecutions for illegal voting.) The first fact to be settled by you is, whether Francis Aglar attempted to give in a vote, at the election held on the second Monday of Ifovember 1834. If you should not be satisfied that he made this attempt, he must be ac- quitted ; and it would then follow, that Ralph Huntingdon must be acquitted also, because his offence is charged as accessory to that of Aglar. But it may be, that Aglar did attempt to vote at that meeting, in which case, it will be necessary for the jury to inquire further, whether it was done wilfully, he having, at the time, the knowledge that he was not a qualified voter ; if they are not satisfied that he acted wilfully, he must be acquitted. But even if Aglar should be acquitted for this cause, if he made the attempt to vote through the wilful persuasion of Hunting- don, knowing, at the time, that Aglar was not qualified to vote, then, though Aglar should be acquitted, it would be the duty of the jury, to find Huntingdon guilty; it would amount to a substantive offence in Huntingdon; and it is not necessary, like the case of an accessory in the commission of a felony at common law, that the conviction of the principal should precede that of the accessory.* Therefore, if Aglar did not attempt to vote, Huntingdon must also be acquitted, whatever feeling or zeal he may have manifested at the time ; if Huntingdon advised Aglar to vote, and promised .to stand by him, in case he would vote, still, if Aglar did nothing in consequence of this advice and tender of protection, the offence was not con- summated. It is not made an offence, under this statute, to advise an unqualified person to give in a ballot, not even if such advice be accompanied with an offer of protection ; it may have been very improper, and contrary to the duty of a good citizen, to give such advice to an unqualified person, but that is not declared to be an offence, and that is not the charge for which Huntingdon is on trial. * Sed guere, whether it would not be necessary that Huntingdon should be separately indicted for a substantive offence ? 702 Commonwealth v. Aglar. (Criminal prosecutions for illegal voting.) It does not appear, that there was any previous concert between Aglar and Huntingdon ; they were strangers to each other; all occurred in the ward-room, during the heat of the election. Aglar came to the polls, with a -C-ote in his hand, undoubtedly intending to vote ; as soon as he appeared, and before he tendered his vote, one of the in- spectors asked him, whether he was a naturalized citizen ; he immediately answered that he was not ; he was then told, that an alien, not naturalized, was not a legal voter, and that if he voted, it would be at his peril ; he said, he had been in the country for 24 years, had paid taxes, his name was on the list of qualified voters, and that he had voted at former elections, without question ; he was told by the inspectors, that his name was indeed on the list, and that they would receive his vote, but that, if he was not a naturalized citizen, he would be liable to prosecution. While this conversation was proceed- ing, Huntingdon came forward, and having learned that Aglar's name was on the list, insisted that that was conclusive evidence of his right and qualification, and urged him to vote, promising, at the time, to hold him harmless from the consequences ; Aglar said that, if he was entitled to vote, he should be glad to do so ; but if he was not authorized, he would not vote. After a very animated contest, in which the inspectors offered the ballot-box to Aglar to receive his vote, but without any attempt on his part to give it in, he and Huntingdon left the room, in order to obtain legal advice dn the subject. They went to Samuel Dexter, Esq., and from him to Andrew Dunlap, Esq., by whom they were advised, that an alien, not naturalized, could not lawfully vote at that election; Aglar did not return to the polls ; but Huntingdon came back, asked the names of the inspectors and threatened to institute a prosecution against them for refusing the vote. The warmth on both sides led to further inquiry and resulted in this prosecution. It is not politic to attempt to restrain, by severe regulations, the freedom of Commonwealth v. Aglar. 703 (Criminal prosecutions for Illegal voting.) elections. It is well, that the people should be alive on these occasions ; it is proof that they love their country, and take an interest in the government; apathy is the worst state into which a free people can fall ; all parties should stand for their rights. Errors committed by indi- viduals, in the fervor of the moment, ought not to be severely criticised ; but it is for the best interests of the people, that wilful violations of the law should be punished. Verdict for defendants. In Rhode Island, the principal point decided in Commonwealth v, Aglar, has been affirmed by the supreme court ; it was there decided, in State v. Macomber, 7 Rhode Island 349, that to warrant a conviction for illegal voting, the ballot must be fraudulently cast, that is, with knowledge by the voter of his disqualification ; and that an honest mis- take by a voter, as to his right, though with knowledge of all the facts, and an assertion of it by voting, would not render him liable to a crim- inal prosecution. Whether the offence was wilfully committed is a question for the jury. Commonwealth v. Wallace, Thach. Cr. Gas. 592. In Tennessee, however, it is held, that ignorance of the law will not excuse illegal voting, but tiat, in order to convict, it must appear that the voter knew of a state of facts which would, in point of law, dis- qualify him. McGuire v. State, 7 Humph. 54. In California, the law is held to be, that where an unlawful act is proved to have been done by the accused, the law, in the first instance, presumes it to have been in- tended, and the proof of justification or excuse lies on the defendant. People «. Harris, 39 Cal. 678. In Massachusetts, evidence that the defendant consulted counsel as to his right to vote, and submitted to them the facts of his case, and was advised by them that he had the right, is admissible in his favor, on the trial of an indictment for illegal voting, but is not held to be conclusive. Commonwealth v. Bradford, 9 Met. 268. In North Carolina, the un- lawful purpose, is held, prima facie, to attach to the act, and that the opinions of others, who believed the vote lawful, including that of the judges of the election, does not amount to a justification or excuse. State V. Hart, 6 Jones (Law) 389. And in the same state, it was deter- mined, that where a defendant indicted for illegal voting, offered to 704 Commonwealth v. Aglar. (Criminal prosecutions for illegal Toting.) prove that he -was advised by a respectable gentleman, though not a member of the bar, that he had a right to vote, such evidence was inad- missible, and fraud was to be presumed from the act of voting, as there was no excuse for ignorance of the law. State «. Boyett, 10 Ired. 336. On such indictment, the defendant's statements, made at the polls, on being challenged, are not admissible evidence in his favor ; nor is the decision of the election officers, in favor of his right to vote, any de- fence. Morris V. State, 7 Blackf. 607. In Alabama, it is held, that the act of voting is not complete, until the ballot is put into the box, and the name of the voter is registered by the clerks. Blackwell «. Thomp- son, 3 Stew. & Port. 348. But in Tennessee, the supreme court deter- mined, that when a voter presents himself before the judges, hands his ticket to the ofBcer, and his name is announced and registered, the act of voting is complete ; it is not necessary that the ballot should have actually been put into the box. Steinwehr v. State, 5 Sneed 586. Irregularities in the manner of holding the election, constitute no defence to an indictment for illegal voting. State v. Cohoon, 12 Ired. 178. But the election must have been legally held. State v. Williams, 85 Maine 561. 705 State v. Mooee. In the Supreme Court of Judicature of New Jersey. JUNE TERM 1858. (Reported 3 Dutchbk 105.) IBeqmsites of indictment for illegal voting.} An indictment for iUegal voting must specify the particular disability that disqualifies the defendant. In an indictment for illegal voting, it is not necessary to charge that the defendant fraudiHenUy voted ; but in one for illegally offering to vote, it must be averred that the vote was frofudukntly offered. This was an indictment charging "William J. Moore, the defendant, with having voted illegally, at the li^'ovem- ber election 1856 ; the defendant having been found guilty, a motion was made to arrest the judgment, on the ground of the insufficiency of the indictment; whereupon the court of oyer and terminer certified the case to the supreme court for its opinion. The substance of the indictment is set forth in the opinion of the court. Stockton, for the defendant. Dayton, attorney-general, for the state. GrRBBN, C. J., delivered the opinion of the court. This indictment charges that the defendant, at an election held,, pursuant to the statute, for electors of president, &c., did wilfully and unlawfully give in his vote for the officers aforesaid, being the officers to be chosen, he, the said Wil- liam J. Moore, then and there not being duly qualified to vote at said election for said officers, and then and there well knowing himself not to be duly qualified to vote at said election for said officers, against the form of the^ 45 706 State v. Moore. (Requisites of indictment for illegal voting.) statute, &c. The indictment is founded on the 50th sec- tion of the act to regulate elections (Ifixon's Dig. 223), which enacts as follows: "any person who shall vote, or shall fraudulently offer to vote, at any election held under this act, or at any township or ward election, who shall not have been a resident of this state for one year, and of the county in which he votes five months next before the election, or who, at the time of the election, is not twenty- one years of age, knowing that he is not twenty-one years of age, or who is not a citizen of the United States, know- ing that he is not such a citizen, or who, by reason of any disability, is not duly qualified to vote at the place where and time when his vote is given or offered, knowing that he is not duly qualified, shall be deemed guilty of a mis- demeanor," &c. The offence created by the statute, and for which the defendant is indicted, may be defined to be, " voting at an election, held under the act to regulate elections, by a per- son who, by reason of some disability, is not duly quali- fied to vote at such election, knowing that he is not duly qualified." It is objected, first, that the indictment does not follow the words of the statute, nor charge the offence therein described ; the charge is not, in the language of the act, that the defendant did vote, but that he did " wilfully and unlawfully give in his vote." But voting and giving in a vote are precisely synonymous terms ; they are so used in the very section on which the indictment is founded ; its language is "any person who shall vote, or offer to vote, knowing that he is not duly qualified to vote, at the place where, and time when, his vote is given or offered ;" giving the vote is voting, not offering to vote. The indictment, therefore, is not open to the objection urged upon the argument, that it is equivocal, and may mean, either giv- ing the vote into the ballot-box, that is, voting, or giving it into the hands of the officer, that is, offering to vote. Again, it is objected, that the indictment does not charge State v. Moore. 707 (Requisites of indictment for illegal voting.) that the defendant fraudulently voted. The statute does not require it; its language is, "any person who shall vote, or shall fraudulently offer to vote;" the objection requires the statute to be read thus, " any person who shall fraudulently vote or offer to vote ;" but such, is neither the phraseology nor the intent of the statute. A person who vot£S, knowing that he is disqualified, acts, of neces- sity, in fraud of the act ; but a person may offer to vote, knowing that he is disqualified, in jest or banter, with no serious intention of voting, and therefore, such act is not, necessarily, fraudulent or criminal. It is further objected, that the indictment does not charge, that the vote was given at an election held under the act to regulate elections, which is an essential part of the description of the offence. The charge is, that the vote was given "at an election held, pursuant to the statute in such case made and provided, for electors of president and vice-president of the United States, for a member of the house of representatives of the United States for the first district of the said state of Kew Jersey, for a governor of said state, for a member of the general assembly for the third assembly district of said county, for a sheriff and three coroners for said county." There is but one statute in the state, pursuant to which the elec- tion of these officers can he held, namely, the act to regu- late elections ; there is, therefore, in substance, an averment that the election was held under that act. In this and other particulars alluded to, the indictment lacks that technical precision and strict conformity to the phraseology of the statute constituting the offence, which is eminently desirable, but it is not thereby rendered fatally defective. But the indictment is fatally defective in not specifying the particular disability which is relied on, as a disqualifi- cation of the defendant as a voter. It lacks, in this par- ticular, the first essential of a valid indictment, inasmuch as it does not apprise the defendant of the precise nature of the offence with which he is charged, so as to enable 708 State v. Moore. (Requisites of indictment for illegal voting.) him to prepare his defence. It charges, indeed, that the defendant was not duly qualified to vote ; hut that is tan- tamount to charging that he labors under one or more of the numerous disabilities imposed by the constitution and the law. Under what disability does he labor? Tbut specific charge the state must establish upon the trial; that charge the defendant may repel by his evidence; and that, by every principle of good pleading, the defendant is en- titled to know from the face of the indictment itself. But how can he know, from this indictment, the particu- lar charge upon which the state means to rely, or the evi- dence necessary to make good his defence? Under this indictment, the state may prove that the defendant is not white, or that he is not a citizen of the United States, or not a resident of this state one year, or of the county in which his vote was cast five months before the election, or that he was a pauper or a convict, or any other consti- tutional, or legal disqualification. The defendant must come prepared to prove his color, his age, his citizenship, his residence, to rebut evidence of his being a pauper or a convict, or, if convicted, to prove a pardon. A charge so general and so indefinite is inconsistent with the well- settled rules of criminal pleading, and must, of necessity, embarrass, if not fatally prejudice, the defendant in mak- ing his defence. But, aside from the general rules of criminal pleading, it is clear, that the statute itself indicates, and by implica- tion, at least, requires a more specific charge. It does not enact generally that, if a person votes, not being duly qualified, he is guilty of a misdemeanor; but the provision is, that if a person laboring under one of diverse disabili- ties, some of which are particularly enumerated, votes, knowing of such disability, he shall be deemed guilty of a misdemeanor. Thus, if a person votes who, at the time of the election, is not twenty-one years of age, knowing that he is not twenty-one years of age, or who is not a citizen of the United States, knowing that he is not such State v. Moore. 709 (Requisites of indictment for illegal voting.) citizen, or who, by reason of any other disability which disqualifies him from voting, knowing that he is not duly qualified, that is, knowing of such disability, he is guilty of a misdemeanor. The provision of the statute is tanta- mount to an enactment, that if any person laboring under any disability which disqualifies him from voting, and knowing of such disability, shall vote, he shall be deemed guilty of a misdemeanor; the indictment must specify what the disability is, under which the defendant labors. In an information or indictment under the game laws of England, it has been uniformly held, that it is not sufiicient to aver that the person charged was not " duly qualified," or that he had not the legal qualifications for killing game ; but every legal qualification must be speci- fically traversed. Thus, under the 22 & 23 Car. II., ch. 25, § 2, it must be averred, that the party complained of had not an estate of inheritance of £100 per annum, nor a leasehold estate for ninety-nine years of the yearly value of £150, nor was the son and heir-apparent of an esquire or person of higher degree, nor the owner and keeper of a park, &c. Rex v. Hill, 2 Ld. Raym. 1415 ; Rex v. Jarvis, 1 Burr. 148, 154 ; Rex v. Wheatman, 1 Dougl. 331 ; Crown C. C. 400. The necessity for a specification under our statute is much greater ; for if a defendant, in an indict- ment under the game laws, shows that he possesses any one qualification, the existence of which must be within his own knowledge, his defence is complete, though he be destitute of every other qualification; he is able, there- fore, to prepare his defence, however general may be the averment of disqualification. But under the election law, if it be proved, that the defendant labors under any one legal disability, he is guilty, though he possess every other qualification; unless, therefore, the particular disability, intended to be relied on, be specified, the indictment furnishes the defendant no guide to the preparation of his defence. The precedent in Wharton, from which the present 710 State v. Moorb. (Requisites of indictment for illegal voting.) indictment has been framed, affords no support to its validity. That indictment was framed upon the peculiar phraseology and adopts the language of the Massachu- setts statute, which is totally dissimilar to our own ; nor does it seem certain that it would be regarded as a valid indictment by the courts of that state. Wliarton's Prece- dents § 1019; Commonwealth v. Shaw, 7 Met. 52; Com- monwealth V. Bradford, 9 Ibid. 268 ; Davis's Justice 226. However that may be, it is perfectly clear that, under our statute, the indictment is fatally defective. The court of oyer and terminer should be advised accordingly. The doctrine of the principal case equally applies to an indictment for unlawfully counselling and advising a disqualified person to vote ; in such indictment the particular disability must he specified. State ®. Tweed, 3 Dutch. 111. The law is held to be the same in Tennessee, where it has been determined, that an indictment that the defendant unlawfully and knowingly voted, not being a qualified voter in and for the county, is bad, though in the words of the statute ; being a "qualified voter," is a legal result; there are various disqualifications, and the indictment must show which of them existed. Pearce v. State, 1 Sneed 637. But directly the contrary has been decided by the supreme court of Iowa ; it is there held, that an indictment for voting at a legal election, the party knowing that he was not qualified, need not show how the defendant was disqualified ; and that, under it, any disability may be shown, or the state may prove from the admissions of the de- fendant, or otherwise, that he knew he was disqualified, and that he was in fact disqualified, without proving in what the disqualification consisted. State «. Douglass, 7 Clarke 413. So, in TJnited States «. Quinn, 12 Int. R. Rec. 151, it was held by the circuit court for the southern district of New York, that an indictment charging a fraudu- lent registration under the act of congress of the 31st May 1870, is sufficient, if it. charge the offence in the words of the statute. And see TJnited States ». Ballard, 13 Int. R. Rec. 195. Being a local offence, it is necessary that an indictment for illegal voting should state with precision where the illegal vote was cast. State V. Fitzpatrick, 4 Rhode Island 269. But in Tennessee, it is unnecessary Commonwealth v. Miller. 711 (Indictments against election officers.) to aver that the offence was committed knowingly ; the party is charge- able with knowledge of the facts which render his vote illegal. State v. Haynorth, 3 Sneed 64. And see State «. Sheeley, 15 Iowa 404. It is sufficient to state that the defendant voted at an election which was duly holden, without showing how, or by what authority, it was called. State B. Marshall, 45 N. H. 381. So, an allegation that certain persons were judges of the election, is a sufficient averment that they were duly made and appointed judges. State v. Handles, 7 Humph. 9. And see Com- monwealth v. Shaw, 7 Met. 53 ; State «. Douglass, 7 Clarke 413 ; State «. Bailey, S.Shep. 63. It is enough, that they were officers de facto. People v. Cook, 8 N. T. 69. In Iowa, in such indictment it is unneces- sary to aver that candidates for any particular office were voted for, or the names of the persons voted for. State v. Minnick, 15 Iowa 123. Commonwealth v. Miller. In the Court of Quarter Sessions of Philadelphia. JUNE SESSIONS 1849. (Reported 2 Parsons 480.) \_Indiotm,ents against election officers.'] An indictment charging, generally, that the election officers "did commit wilful fraud in the discharge of their duties," is fatally defective ; the par- ticular acts must be specifically set forth. The inspectors, judges and clerks cannot be joined as defendants in one indictment, their offices being different, and their duties distinct and separate. These were two indictments against the election officers of the district of Penn, for a violation of their duties, at the general and presidential elections of 1848. To each of the indictments there was a general demurrer; the case was argued before the four judges, in ^>anc, and the opinion, in which the pleadings are fully stated, was the unani- mous one of the court. S. M. Phillips and Read, for the defendants. Clarkson and Heed, for the commonwealth. 712 Commonwealth v. Millek. (Indictments against election officers.) Parsons, J., delivered the opinion of the court. This is an indictment against five defendants, the officers of the election in Penn district, charging them with a viola- tion of the election law of 1839, in the discharge of their various and respective duties as inspectors, judges and clerks of the election held last fall. There are two bills charging the same oft'ences as having been committed at the general and presidential elections ; in each there are six counts. 1. The first count charges that John Miller, being and acting as judge of said election, John C. Senderling and George "W". Morrison, being and acting as inspectors thereof, and John E.. Hyneman and Thomas H. Palmer, being and acting as clerks thereof, having each been duly qualified to act as such officers, yet, being persons of evil- disposed minds, and wholly regardless of their duties as such, did commit wilful fraud in the discharge of their duties. 2. The second count charges that, being officers of said election as aforesaid, they did commit wilful fraud in the discharge of their duties in this, that they (naming them) did wilfully, fraudulently and unlawfully procure and cause to be written on the list of voters kept at such election, a large number, to wit, one hundred and fifty names of persons as having lawfully voted at such elec- tion, whereas, in truth and in fact, no such persons voted at the same, &c. 3. The third count charges, in the same way, that being officers, they did commit wilful fraud in the discharge of their duties, in this, that they did wilfully, fraudu- lently and unlawfully procure and cause to be counted and enumerated and marked on the tally-papers of said election, a large number, to wit, one hundred and fifty votes, as having been polled and received at such election, whereas, in truth and in fact, no such votes were .polled and received. 4. The fourth count charges that, being officers of said Commonwealth v. Miller. 713 (Indictments against election officers.) election, thej did wilfully, fraudulently and unlawfully cause to be placed in the ballot-box provided at the elec- tion, a large number, to wit, one hundred and fifty tickets, as having been voted and received at such election, whereas, in truth and in fact, no such tickets were received from the voters at such election. 5. The fifth count charges that, being oflicers of said election, they did unlawfully, wilfully and designedly alter and change the lists of voters required to be kept at such election, and did interpolate therein, a large number, to wit, one hundred and fifty names of persons as having voted, whereas, in truth and in fact, no suck persons voted at such election. 6. The sixth count charges that, being officers of said election, they did unlawfully, wilfully and designedly de- stroy the list of voters kept and made at such election, and did unlawfully substitute therefor, false and simulated lists of voters, purporting to have been made at such elec- tion. To this indictment there is a general demurrer. The defendants object to this record, first, in detail, alleging that each count is defective and insufficient on which to found a judgment: it is then objected to in general; their counsel alleging that the joinder of all these defendants in one bill, cannot be sustained, under any rule which ob- tains in criminal pleading. I will consider these objec- tions in their order. The first count in this bill charges that the defendants did commit wilful fraud in the discharge of their duties at the election, without setting forth any facts which constitute the alleged fraud, or averring in what respect it was perpetrated, or any ground on which the accusation is made. The prosecution claims to sustain this indict- ment under § 102 of the election law of 1839, which de- clares that, "if any inspector, judge or clerk shall be con- victed of any wilful fraud in the discharge of his duties, he shall undergo an imprisonment," &c.; and contends that 71-4 (Commonwealth v. Miller. (Indictments against election officers.) merely charging the crime in the language of the statute creating the offence, is sufficient. But it is objected by the defendants' counsel, that such a general charge in the bill, is not in accordance with the law relative to pleading in criminal cases, and that the want of specification as to any facts which indicate the fraud, renders this count bad ; therefore, on that ground, the demurrer must be sus- tained. This is now the point for consideration. In order that the rules which apply to this subject may be clearly comprehended, we will first inquire, what state- ment of facts is required to be set forth in bills of in-, dictment charging offences, at. common law, and what, under statutes which create or define offences not known to the common law. In the former, it, is a familiar prin- ciple, that the indictment must state the facts which con- stitute the crime, with as much certainty as the nature of the case will admit ; that the allegations in the bill ought to be certain to every intent, and without any intendment to the contrary. 1 Chit. C. L. 140-2 ; 2 T. R. 586. Hence, it is laid down as a general rule, that all indictments ought to charge a man with a particular specified offence, and not an offence in general; for no one can know what defence to make to a charge thus uncertain; it cannot be pleaded in bar or abatement of a subsequent prosecu- tion, nor can it appear that the facts given in evideuce against a defendant on such a general accusation, are the same of which the indictors have accused him ; nor will it judicially appear to the court, what punishment is proper on conviction. 1 Chit, 0. L. 188 ; 2 Hawk. P. C. 320. It is said by Hawkins, " that in the indictment, the special manner of the whole, fact ought to be set forth with such certainty, that it may judicially appear to the court, that the indictors have not gone upon insufficient premises." Therefore, an indictment for burglary, which does not state the breaking to have been in the night-time, is bad; so, to state that one feloniously broke prison, withoul; averring the cause of imprisonment, is insufficient; nor Commonwealth v. Millbe. 715 (Indictments against election ofBcers.) could it be seriously contended for one moment, that an indictment charging one with stealing, without averring what was stolen, could be sustained ; nor can any prece- dent be found for an indictment in a case of homicide, which does not show the means by which the offence was perpetrated. If, then, we were to apply the rule which almost invariably governs in cases of indictments for offences at common law, this first count will be found defective. But it was contended on the argument, that the same ■fitrictness in pleading, where the offence is created by statute, is not required ; and therefore, if the indictment lay the crime in the words of the statute, it is sufficient, without averring the facts or circumstances attending the transaction, which made the acts, alleged to have been done, criminal. But upon a careful examination of the authorities, I think it will be found, that the rule^ in re- lation to indictments charging offences created by statute, are the same that govern in cases of crimes at common law, with, perhaps, one exception. Therefore, we find it asserted by most of the law writers, as an elementary rule, that the principles which govern in relation to indictments at common law, generally, apply to offences created by statute ; whatever precision is required in the one, is also necessary in the other ; and it is often instifficient, merely to pursue the description of the offence given in the statute. 1 Chit. C. L. 227; 2 Hawk. P. C. 254. Hence, it is said by Hawkins, "neither doth it seem always sufficient to pursue the very words of the statute, unless, by so doing, you fully, directly and expressly allege the fact, in the doing or not doing whereof, the offence consists, without the least uncertainty or ambiguity." "We find that in an indictment for obtaining goods by false tokens, or under false pretences, the means by which the offence was accom- plished, must appear on the face of the record ; 1 Hale P. C. 517, 626; 2 Ibid. 170; for, it is not enough to allege, generally, that the cheat was effected by means of certain 716 Commonwealth v. Miller. (Indictments against election officers.) false tokens or false pretences ; and the reason given by Grrose, J., in his opinion in Fuller's case, is, that there may be some false pretences not within the statute, and therefore, they must be set out, that the court may see what they were. 2 East P. C. 831; 11 Mass. 136; Mart. & Yerg. 137. 2^umerous other cases of statutory offences might be cited, to illustrate the application of the rule, many of which will be found collected in 2 Hawk. P. C. 321, 364-5. To the same point is Rex v. Mallinson, 2 Burr. 679; 2.Stra. 1127. Nor does this principle in relation to criminal pleading,* in cases of offences created by statute, rest solely on English authority ; such was held to be the law, by the circuit court of the United States for the eastern district of Pennsylvania, in the case of United States v. Almeida, tried at February Term 1849 ; an able and well-written opinion was delivered by Judge Kane, and is to be found in a note to Wharton's Precedents § 1061. That was a case in which the prosecution charged the defendant with a revolt on board a ship, under an act of congress making it an offence for any one of the crew of any ship, upon the high seas, to be guilty of a revolt ; the indictment charged the prisoner with a revolt, in the language of the law, without stating any of the facts or acts done by the pris- oner, to show the revolt ; on that ground, the court ar- rested the judgment, and held that merely charging an offence in the language of the statute, was not sufficient, as a general rule. The limitation in the application of the rule, which will be presently noticed, was recognised by that court. This case would seem to settle the question now under consideration ; and when we reflect upon the high character of the court from which it emanates, per- haps, should be deemed conclusive upon the point. But the soundness of the doctrine does not rest on these authori- ties alone ; the question has been definitively settled by our supreme court in the cases of Commonwealth v. Gilles- pie, 7 S. & R. 469 ; Stewart v. Commonwealth, 4 S. & R. 194 ; Commonwealth v. Miller. 717 (Indictments against election officers.) and Dock v. Chief Burgess, 7 "Watts 181, In this last case, the court say, "it is not sufficient in an indictment or popular action, to lay the offence in the very words of the statute, unless they expressly serve to allege the very fact, with all the necessary additions, and without a grain of uncertainty or ambiguity; the special circumstances ne- cessary to individuate the offence must be stated." To the general rule we have stated, there are, undoubt- edly, exceptions ; but, in our opinion, this case does not come within any of them. The exceptions, or perhaps, limits to the application of this principle, arise from the peculiar character of the offence charged ; thus, an indict- ment against a common barrator, or one for keeping a common gaming-house, is good, without a specification of the acts; for the essence of the offence, in these cases, consists in its habitual character, or arises from a series of transgressions ; so, an indictment under our act of as- sembly, for selling vinous or spirituous liquors by a less measure than one quart, is good, without alleging to whom the sale is made, for the essential ingredient of the crime is the sale. But a conviction, under the statute of 43 Eliz. ch. 7, for cutting down divers lime-trees, was quashed for uncertainty. Regina v. Burnaby, 2 Ld. Raym. 900. This rule, which seems to be so well established, is not arbitrary in its nature, but is founded upon the plainest principles of reason and common sense. Nothing can be more reasonable, than that the prosecution, in a criminal case, should state the facts specifically which, it is sup- posed, constitute the offence, with as much certainty as the nature of the crime will admit. It should be done, in order that the court may see that the case comes within the statute; for there may be alleged frauds perpetrated, which would not always render those who are acting as officers of the election liable under the 102d section of the law already cited. There may be acts done by them as individuals, which had no connection with their official 718 Commonwealth v. Milleb. (Indictments against election officers.) duties, and independently of any connection with their conduct of the election ; for such acts, they could not he held amenable under this section. Tor aught the court can know from this record, such may have been the wrongs complained of. Another reason why the specific acts, which constitute the alleged fraud, should be stated, is, in order that the accused may know what they must prepare to answer. This count alleges tha,t they " did commit wilful fraud in the discharge of their duties." Is such a general alle- gation as this sufficient? are they not entitled to some notice in what the prosecutors assert this fraud to consist? should there not be some specification, an averment of some one fact, which would admonish them of what will be the accusation they must answer on the trial? They vere officers, acting under the sanction of an oath, enjoy- ing the confidence of their fellow-citizens, as manifested by their election to the stations which they held ; surely, it would have been but fair and reasonable, that the com- monwealth should specify upon the record something, some act, which would individuate the alleged fraud. In our opinion, the law requires it should be done ; it is the law of England, of the United States and of Pennsyl- vania ; a right to seek a simple and intelligible statement of what one shall be called upon to answer, is what the citizen may demand. It is given in all similar accusa- tions for crimes ; and the want of such averment renders this first count bad, and therefore, as to that, judgment must be entered for the defendants on the demurrer. To the nex^t four counts there are two objections ; first, that although these counts contain an allegation of acts which constitute the fraud complained of, yet, the facts are not stated with that precision and certainty which the rules of pleading require. The law is clear, that the spe- cific acts alleged to have been done by the accused, which bring his conduct within the prohibitions of the statute, must be stated with as much certainty as the nature and Commonwealth v. Miller. 719 (Indictments against election officers.) circumstances of the case will admit ; without such speci- fication of facts, the record cannot sustain a verdict. In prosecutions for larceny, the indictment must describe the property stolen with reasonable certainty, not only what the property was, but its nature and character; so, in burglary, there must be an allegation what premises were entered, and who was the owner or possessor when the breaking occurred ; in homicide, the means by which the deed was done must be stated on the record. So with regard to offences created by statute ; therefore, an in- dictment charging the defendant with obtaining money by false pretences, without stating what the particular pretences were, is bad ; and not only so, but the property of which the prosecutor was defrauded, must also be de- scribed with reasonable certainty. 1 Chit, C, L, 140 ; 2 Hawk. P. C. 321; 2 Stra. 1127; 8 Penn. St. E. 260; 2 Whart. C. L. § 2155. The indictment must also state the goods to be the property of some person named, and when no name is laid, the indictment will be. quashed. E-egina V. Parker, 3 Ad. & Ellis 292;, 8 C. &. P. 196. So also, an indictment for procuring money by false tokens, under the 21 Hen. VIII., must aver what the tokens were; likewise, an indictment for words spoken of a magistrate, in the execution of his office, must set forth the words; and nothing is better settled than that, in a prosecution for perjury, the pleader must state upon the record the language used by the accused when he committed the offence. Let us apply this settled rule of law to the seeondcount of this indictment, which charges that the defendants "did fraudulently procure and cause to. be written on the list of voters kept at such election, a large number, to wit, one hundred and fifty names of persons, as having lawfully voted at such election, whereas, in truth and in fact, no such persons voted at the same." Is, then, this specifica- tion of the acts stated with that certainty which the nature of the case admits? The criminal pleader is 720 Commonwealth v. Miller. (Indictments against election officers. ) always presumed to be acquainted with the facts of the case, before he prepares a record statement of them, there- fore, he must have known the names of, at least, some one, among this one hundred and fifty, if not all of them. It seems to us, that it is not requiring too much of the prosecution, when we say, they ought to set forth the names of some of them upon the record. It must be proved, on the trial, what are the names of the persons which, it is alleged, were fraudulently written on the list of voters kept at the election; it is the material point to be established before a jury ; without establishing the fact of the names, thus entered on the list, of the indi- viduals who did not vote at the election, as charged in the bill, the prosecution must fail ; for it will not do to make the charge, without indicating who such persons were, by name. If so, why not give the. names in the bill ? Why should the prosecution be suffered to withhold or suppress them? In our opinion, a fair administration of the criminal law demands that it should be done, in order that the defendants may be apprised of what they must be prepared to meet on the trial. To them it is a matter of infinite importance ; there may be a thousand names on the tally-list ; under this bill, how can the de- fendants know which name, out of this one thousand, the prosecution will select, as an individual who did not vote, whose name is recorded? Must they be put to the trouble and expense to subpoena those thousand voters to defend themselves against this charge, if they are innocent? without so doing, how can they, with safety, go to trial ? And even then, more might be required, for some of those who voted may have left the state, and other proof may be necessary. It appears to us, that no charge ought to be tolerated in an indictment, which would thus embarrass the accused, who are always presumed to be innocent until their guilt is established. The rules of pleading are not arbitrary, but are founded upon the soundest reason, when they re- Commonwealth v. Miller. 721 (Indictments against election oflBcers.) quire that a prosecutor shall state the accusation with as much certainty as can be admitted by its nature and character. In this count, it has not been done ; the names of the persons which, it is averred, were put upon the tally-list, but who never voted, could have been stated in the bill, yet they are not. "We think the law requires such a statement (justice and fairness to the accused demand it) ; and that there is no such precision in the averment of facts which constitute the crime, as is usual in similar cases, where offences have been prohibited by statute. It is difficult, nay, impossible, to see why this case should form an exception to the general rule, particularly, when it was so easy to have made the statement with that pre- cision which would have given full and fair notice to the accused., These remarks apply, with equal force, to the 3d and 5th counts ; but I do not think, the 4th and 6th counts are embraced within this principle, nor can this objection be made to them. Yet, it is contended that, if the first count be bad, and judgment be given for the defendants on the demurrer, as to that count, and it fall, all the others must necessarily fall with it, because there is no allegation in either of the other counts, that the defendants were inspectors, judge and clerks, but all the subsequent counts refer to the first count, as their antecedent, for this averment. That the' indictment must state the particular office which each held at the election, and their various stations be designated, when prosecuted for official misconduct, I think, is clearly settled in the case of Commonwealth v. Rupp, 9 Watts 114. But whilst we pronounce the first count defective, and rule that we must give judgment for the defendants on the de- murrer, as to that count, I do not think it so clear, that where the first count is referred to, as for the "day and year aforesaid," "the county aforesaid," and "being offi- cers as aforesaid," all the subsequent counts should be pro- nounced bad, because there is not a repetition of the dis- tinct office which each held ; for, it seems to be well settled, 46 722 Common-wealth v. Miller. (Indictments against election officers.) that the defect of some of the counts in, an indictment, will not affect the validity of the remainder; judgment may be given against the defendant upon those which are valid. 1 Bos. & Pul. 187; 1 Chit. C. L. 205. Therefore, it is held, although every count should appear, upon its face, to chai'ge the defendant with a distinct offence, yet, one count may refer to matter in any other count, so as to avoid unnecessary repetition, as for instance, to de- scribe the defendant as "the said," &c.; and though the first count be defective, or be rejected by the grand jury, this circijmstance will not vitiate the residue. 2 H. Bl. 131; 1 Chit. C. L. 205. And it was said by Gould, J., in the case cited from H. BL, "that he remembered a case of an indictment for forgery, in which there were three counts for the forgery, and three for the utterance ; in the first count, the prisoner was particularly described, and the grand jury rejected the first three counts; an objection was raised, that the remaining counts described him ' the said A. B.,' by reference to the first, but the judges held that the description was good, and that the latter counts might refer to the former." This principle seems to be repeated by most of the best writers on criminal law. I^o reason is given in any of the cases, for this seeming paradox, in relation to various 'counts in indictments, for all say, that every separate count should charge the defendant as if he had committed a distinct offence. But I apprehend the true reason is this : while the court rule that the offence is not described with suflicient legal precision, and on that ground, refuse to give judgment for the prosecution, for the alleged crime thus defectively stated, they hold that the description of the defendant, the time, place and venue are laid with suf- ficient precision, and therefore, that this part of the first or previous counts may be referred to, for that is not pro- nounced invalid.* It is upon this ground that I conceive * And see Commonwealth ®. Kaas, 3 Brewst. 422. Commonwealth v. Miller. 723 (Indictments against election officers.) the constant practice of the courts in this country has been recognised, to arrest the judgment on one or more of the counts, and to sentence on others, which are determined to be good; such, we know, is the practice in this state, and has been ruled to be the law by the supreme court of the United States. United States v. Furlong, 5 Wheat, 184; 8S. &Ii. 420. The case of Rose v. State, Minor 28, seems to be in opposition to this principle ; in that case, one count in the indictment was quashed, and it was held, that this set aside the whole indictment ; but upon what principle of previous decision this opinion is based, it seems rather difficult to determine. Still, I do not think it would be safe for us now, to disturb a practice which has been pur- sued by the courts in this state, following the English decisions, which date back as far as the year 1792 and before. Because we say, that the first count does not state the offence with that legal precision which would justify a verdict and judgment, we do not decide, that the. parties are not sufficiently described, nor that all the other matters set forth in the same are not averred with suffi- cient certainty. And if there were no other objection, we should be disposed to hold, that the 4th and 6th counts, perhaps, might be sustained. But there is one general objection to the whole bill which, if well taken, must dispose of the entire case, and it is this: the inspectors, judge and clerks are all joined in the same indictment. Can there legally be such a joinder, for an offence alleged to have been perpetrated under the 102d section of the election law? particularly, when. the offices are different, when the duties are distinct and sep- arate, and when an election may be held, and the judge not be called upon to perform a single official act in rela- tion to the receiving or registering the votes? We will first consider this question on authority, and then upon principle. The rule of law seems to.be this: where the offence 724 Commonwealth v. Miller. (Indictments against election officers.) arises wholly from any joint act, which, in itself, is crim- inal, without regard to any particular personal defend- ant, the indictment may charge the defendants either jointly or severally. But where the offence charged does not wholly arise from the joint act of all the defendants, but from such act, joined with some personal and particu- lar defect or omission of each defendant, without which it would be no offence, the indictment must charge them severally and not jointly ; for, Hawkins says, " it is absurd to charge them jointly, because the offence of each arises from a defect peculiar to himself." 2 Hawk. P. 0. 342 ; 1 Chit. C. L. 220. Hence, it was decided, in the case of Eex V. "W^eston, 1 Stra. 623, that an indictment against six, jointly and severally, for exercising a trade, should be quashed, because there ought to have been distinct indict- ments. In the case of Rex v. Philips, 2 Stra. 921, six were charged in an indictment with perjury, and four of them pleading, were convicted ; it was moved in arrest of judgment, that they could not be joined, and on that ground the court arrested the judgment. A case is re- ported in 6 Mod. 210, where there was an indictment against several for the neglect of a day of fasting by pro- clamation, which was quashed, because the indictment was joint and should have been several. 2 Hawk. P. C. 343. It appears to us, that there never was a case where the rule, which has just been stated, could be more properly applied than in the present. In the first place, the duties of the inspectors are different from those of the other officers mentioned in the bill ; they receive the votes and decide upon the qualifications of the electors who tender them ; and it is only when the inspectors differ in opinion, in any particular case, that the judge is called upon to act ; hence, an entire election may pass off without he, who is stationed there as judge, being' called upon to perform any official act as to the reception of votes. The clerks have nothing to say about the reception or rejection of a vote; Commonwealth v. Miller. 725 (Indictments against election officers.) it is their duty simply to record the names of those who, their superiors determine, are legal voters, when the tickets are received; the clerks never receive a ticket, nor can they put one in the ballot-box, or count them when told off; their duties are purely clerical. The acts and doings of these defendants, on this occasion, were not necessarily criminal in themselves, but were legal; and could only become criminal, by a violation of their duty. The two inspectors might have committed most of the acts charged in the bill, and the judge and clerks have been entirely innocent of any participation in the trans- action; hence, we say, in the language of the law, "the offence charged doth not arise from the joint act of all the defendants, but from such, joined with some personal or particular defect or omission of each defendant (or a part of them), without which it would be no offence ; when such is the state of the case, the indictment must charge them severally and not jointly." Nothing, then, can be more clear, than that it is a manifest error in law, to join all these defendants in the same indictment ; and such a joinder of the parties necessarily entitles them to judg- ment on the demurrer as to the whole bill. There are a few considerations which, it seems to me, will strike the common sense of every one, as to the pro- priety of the rule just stated and of its application to the present case. "We know that the inspectors and judge are elected by the people, the clerks are not ; a particular form of oath is prescribed by law for the inspectors ; another and different one for the judge; and still another, varying in form and substance, is to be taken by the clerks, before they enter upon the duties of their office. Each of these three classes of officers moves in a different sphere ; each has different and distinct functions to perform ; and then to say, that all shall be charged in the same indictment for a highly penal offence, when, from the nature of some of the acts charged, some of the officers could not have participated in doing the act, or have prevented the same. 726 Commonwealth v. Miller. (Indictments against election officers.) had they attempted, must convince the judgment of every fair-minded man that it is wrong. Now, many of the acts alleged to have been done, might and must have been committed by the two inspectors alone, or by one inspector and the judge; how unreasonable to join the clerks and judge in the same bill, and thereby deprive them of the testimony of those who, if permitted to testify, would perhaps establish, beyond all doubt, their entire innocence, and show that some of them, at least, did not participate in the transaction. And what injury can be done to the commonwealth, by preferring several bills against them? If the two inspectors united in plac- ing in the ballot-box the names of individuals who never voted, and required the clerks to enter them upon the tally-list, why not indict those who did the act, separately and alone, and call the judge and clerks to prove the fact? By such a severance of the charges, no injury can possibly be done to the prosecution, in the elucidation of the truth, and presenting the cause as the facts really transpired, which is the real design of every criminal prosecution ; on the contrary, great good may be thereby accomplished. Under the system of pleading above indicated, and which the law has wisely prescribed, no injury will be done to the cause of public justice or to the defendants, and no one will have just ground of complaint; the accused will then have a fair chance to present their defence, in its true and legitimate form, and the prosecution can command the testimony of all persons who, it is supposed, could be cognisant of the transaction. Any bill of indictment which does not contain these important elements, is not in accordance with the great and fundamental principles of pleading in criminal cases, nor sanctioned in judicial proceedings. The law has no meshes in which to catch the unsuspect- ing or unwary ; its main design is, when an individual is called to the bar of public justice to answer for alleged misconduct, to hold him responsible,- personally, for his Commonwealth v. Miller. 727 (Indictments against election officers.) own misdeeds, and not for the defects or omissions of another ; and to present him with a plain, tinambiguous statement of the accusation against him; this he has a right to demand, and such a presentment no honest man will fear to meet. It is this which the defendants claim, in the legal issue which has been raised upon this re- cord ; and this, the court, in an upright and conscientious performance of duty, are bound to accord to them, as they are to the humblest man that appears in court. Guarded as we are by the law, and the wisdom of long-established principles, solemnly settled, our judgment must be ren- dered in favor of the defendants on this demurrer. Judgment for defendants. In Commonwealth v. Gray, 3 Duvall 373, it was ruled by the court of appeals of Kentucky, that an indictment charging the defendant, as one of the judges of an election, with knowingly and unlawfully receiv- ing the vote of an unqualified person, was sufficient, without showing whether the sheriff or the other judge was in favor of, or opposed to, allowing the illegal vote to be cast. And it was said by Robertson, J., in delivering the opinion of the court, that ''prima facie both judges concurred, or the appellee and the sheriff co-operated in receiving the unlawful vote; and if there was such co-operation, the other concurring officer or officers may have been ignorant of the illegality, and there- fore, innocent; or, if guilty, that cumulative guilt could not exculpate the appellee, who should be personally and severally liable for his own unlawful act, in receiving, as charged, the illegal vote ; it was not at all necessary, therefore, to show how the other officers acted." And see Commonwealth v. Ayer, Cush. Elect. Cas. 674. 728 Laval v. Myers. In the Court of Appeals of South Carolina. APRIL TERM 1830. (Reported 1 Bailey 486.) [ Wagers upon elections.'] A wager upon the result of the election for President of the United States, Is contrary to public policy, and no action can be maintained for its recovery. This was a summary process, tried in the city court of Charleston, at iN^ovemher term 1829, for the recovery of a wager on the result of the last election for president of the United States. The wager was laid after the election by the people for members of the legislature, but before the college of electors had been chosen by the legislature. The defendant demurred, and the plaintiff joined in de- murrer. The Recorder delivered the following opinion in the court below. The old cases upon the subject of wagers have been subsequently declared, by different judges, to be of little or no value ; their legality was not made a ques- tion at the trial, but was always assumed, and the courts have since said, that were such cases now to be brought, they would be differently decided. Lord EUenborough, in Grilbert v. Sykes, 16 East 157, said, "it is no new prin- ciple in the law, that if a contract have a tendency to a mischievous and pernicious consequence, it is void ; I am aware, that in old cases (precedents of which are to be found in Hearne's Pleader), actions have been maintained upon wagers open to an objection of this sort, but not de- cided upon that ground, which was not adverted to ; the first of those reported is Andrews v. Heme, 1 Lev. 33, Laval v. Myers. 729 (Wagers upon elections. ) where the bet was upon the life of one who was held to be king de jure; and yet no point was made as to the validity of the contract, on the ground of its impolicy."* Le Blanc, J., speaking of this case of Andrews v. Heme, remarked, " I have no hesitation in saying, that that bet would never have been sustained in these days." 16 Bast 162. Lord Ellenborough further observed, in reference to the case of Da Costa v. Jones, Cowp. 729, which was upon a wager as to the sex of the person who passed under the name of the Chevalier D'Eon, " that it was brought several times before the court, before any objection was taken on the ground of its immoral tendency." 16 East 158. And in reference to Lord March v. Pigot, 5 Burr. 2802, which arose out of a conversation between two sons, as to which of their respective fathers would live the longest, upon which a third person had stepped in and taken up the bet with one of the young gentlemen, Le Blanc, J., said, " that case was considered chiefly on the doubt, whether or not it was a bubble bet, as one of the fathers happened to be then dead." 16 East 162. The great case, however, in which the legality of wagers, in England, is said to have been first fully argued and de- cided, is that of Da Costa v. Jones, in 1778, Cowp. 729. Before that time there was one, reported in 1 "W. Bl. 19, by the title of Walkhouse v. Derwent, which was deserv- ing of more attention than it received; and which, if fol- lowed, would have saved a great deal of subsequent regret and embarrassment. A wager had been laid, that the court of king's bench would quash an order of two jus- tices, in a certain cause; and articles were drawn, by which the defendants agreed to bring a certiorari to try it, which they never did; on their default, a suit was * In point of fact, the plaintiff, in Andrews v. Heme, laid a wager of £20, that Charles Stuart (who was then in exile) would he king of Eng- land, within twelve months ; and the defence was, that there was no con- sideration, as he was king dejure at the time of the promise; hut the plaintiff recovered. 1 Lev. 33. 730 Laval v. Myers. (Wagers upon, elections.) inBtituted on the articles, on which the defendants moved that the proceedings might be stayed and the articles delivered up ; the court declined to hear it, using these words: "we desire the gentlemen would make an end of it between themselves, and let us hear no more of it, it being a very improper thing." In the marginal note. Sir William Blackstone gives his understanding of the case • thus: "the court will not decide wagers." ISTo notice appears to have been taken of this case in Da Costa v. Jones. In Good v. Elliott, 3 T. R. 702, Ashhurst, J., said, " as to the general ground, namely, whether an action will lie on any wager, that question does not now appear to be open to argument ; it having been settled by so many authorities, both ancient and modern, and particularly in the case of Da Costa v. Jones, where Lord Mansfield, though he expressed a strong wish, that the practice of laying wagers might be abolished, said, that indifferent wagers upon indifferent matters, without interest to either of the parties, are certainly allowed by the law of this country, in so far as they have not been restrained by any particular act of parliament ; and the restraints imposed in particular cases support the general rule." The decision of the court conformed to this opinion; but BuUer, J., dissented toto coslo, and was opposed to wagers being coun- tenanced by the courts at all. The later opinions of the bench have approximated to his, as closely as they could, with a due respect to this de- cided case. The following is the strong language of the judges, in the case of Gilbert v. Sykes, 16 East 150, al- ready referred to, which was decided in 1812 ; Lord Ellen- borough, C. J., after showing that the old cases had been ruled, without considering the impolicy of the practice, said, " upon the whole, therefore, not without some degree of doubt, whether Mr. Justice Buller was not right, in saying that no wagers ought to be sustained, where the parties have no special interest in the subject-matter ; at any rate, where the subject-matter of the wager has a ten- Laval v. Myers. 731 (Wagers upon elections.) dency injurious to the interests of mankind, I have no doubt in saying, that it ought not to be sustained." 16 East 159. Le Blanc, J., said, " it has been often lamented that actions upon idle wagers should ever have been sus- tained in courts of justice; the practice seems to have prevailed, before that full consideration of the subject which has been had in modern times ; but the frequent discussion of it, in these times, has so far satisfied the minds of most lawyers, that they are now agreed, that objections would have lain in many cases of wagers, that have formerly been maintained without noticing such objections ; and it is now clearly settled, that the subject- matter of a wager must, at least, be perfectly innocent in itself, and must not tend to immorality or impolicy." Ibid. 161. Bayley, J., said, "the discussion which has been had of this case, has strongly illustrated the incon- venience of countenancing idle wagers in courts of justice; it occupies the time of the court, and diverts their atten- tion from causes of real interest and concern to the suitors ; and I think it would be a good rule, to postpone the trial of every action upon idle wagers, until the court had nothing else to do." Ibid. 162. In Henkin v. G-uerss, 12 East 247, the court expressed itself with unusual warmth on the subject; the bet was, whether a person could be lawfully held to bail, on a special original, for a debt under £40 ; there was nothing immoral in this; but what said the court? "Courts of justice were constituted for the purpose of deciding really existing questions of right between the parties; and were not bound to answer whatever impertinent questions per- sons thought proper to ask them, in the form of an action upon a wager; and although there was nothing immoral in the subject of this wager, they considered it an ex- tremely impudent attempt to compel the court to give an opinion upon an abstract question of law, not arising out of pre-existing circumstances in which the parties had an interest." The court refused to hear the case. So, a 732 Laval v. Mtees. (Wagers upon elections.) cause coming on to be tried before Lord Loughborough, in which the plaintiff declared upon a wager, "whether there are more ways than six, of nicking seven on the dice, allow- ing seven to be the main, and eleven a nick to seven," his lordship ordered it to be struck out of the paper ; and the court of common pleas afterwards refused leave to restore it. Brown v. Leeson, 2 H. Bl. 43. So too, in Squires v. Whisken, 3 Camp. 140, which was upon a wager on a cock-fight, not prohibited by any statute. Lord EUenbo- rough refused to hear the case ; first, because " cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice ;" and secondly, because such wagers " tend to the degradation of courts of justice; for it was impossible to be engaged in ludicrous inquiries of this sort, consistently with that dig- nity, which it is essential to the public welfare, that a court of justice should always preserve." These cases show the strong leaning of the courts in Great Britain, at the present day, to get rid of a rule transmitted to them through the inadvertence of their predecessors, and which has trammelled and fettered them, whenever they have been called upon to apply it. Their universal regret, with the various reasons for it, has satisfied my mind, that when the courts entertained actions upon wagers, which were unconnected with the ends of justice, they mistook the common law ; for it does appear to be an extraordinary proposition, that courts of justice, established to determine on the applicability of the law to the acts and contracts of mankind, should be at the disposal of all persons who may think proper to submit to them the decision of idle bets upon indifferent subjects, and thereby also be made to sanction the practice of gambling. This point has never yet been ruled in this state, that I am aware of, and I shall not be the first to recognise such a doctrine; I take the rule of law to be, that no action for a wager can be maintained, unless it be Laval v. Myers. 733 (Wagers upon elections.) upon a feigned issue, ordered by a court, in furtherance of justice. But even according to the law now prevalent in England, the present action cannot be maintained. The subject- matter of the bet must be perfectly innocent, and not tend to immorality or impolicy; to this all the English judges agree. The present wager is between two citizens of this state, on the event of the late presidential election; they had, before betting, both voted for members of the state legislature, whose office it was to choose the electors of president; but such choice had not yet been made. Had the bet been made prior to the election for members of that legislature, it would have been within the prin- ciple of Allen V. Hearn, 1 T. R. 56, where it was decided, that a wager between two voters, with respect to the elec- tion of a member of parliament, laid before the poll began, was illegal ; because it created a pecuniary influence inter- fering with the voter's giving his vote freely, and afford- ing a color for bribery. This, to be sure, implies that the influence should be such as would affect the voter himself, and not a third person merely ; and such was the principle of the case of Jones v. Randall, Cowp. 37 ; but I take the general principle ;. that the wager must be innocent, and have no improper tendency, however remote. Can that be said in the present case ? It gives each bettor a pecuniary, and there- fore, improper interest in the election or defeat of a presi- dential candidate ; it is true, that neither of the parties had a voice in it ; but the country has a deep interest in pre- serving the purity of this election, and whatever, gives a citizen an improper motive to promote or obstruct the elevation of a candidate, tends to affect that purity. " No matter," to use the language of Lord Ellenborough, in Gilbert v. Sykes, "how infinitely remote the probability of any mischief in fact arising from it, it is deemed void, on account of its tendency." 16 East 158. It is admitted by the plaintiff's counsel, that if the bet had been made by a member of the legislature, who had a 734 Laval v. Myers. (Wagers upon elections.) vote in the choice of electors, it •would have been void ; but let it only be imagined, that a large body of citizens should create in themselves a deep pecuniary interest in such a question, and it cannot be denied, that its tendency would be, to influence that small body of voters in their choice of electors; and indeed, the electors themselves might be imperceptibly effected by it. But another mis- chievous tendency of this practice, is the aggravation of party spirit; this, at all times of election, runs high enough already for the safety of the public peace ; add to it the stimulus of a high wager, and you throw gunpowder into the flames ; you will create hostilities and feuds of the most deadly character, and set up a man's interest against his public virtue. But it is needless to dwell on this topic ; for no one can deny, that whatever tends to excite one class of citizens violently against another, at elections in this country, has an impolitic tendency, and should be avoided ; and it seems to me, that giving a pecu- niary loss or gain in the event, would be the readiest mode of raising this excitement. In New York, it has been decided, in the case of Bunn V. Riker, 4 Johns. 426, and Lansing v. Lansing, 8 Johns. 454, that a bet involving an inquiry into the validity of the election of governor of the state, whether made before or after the closing of the poll, was void, on principles of public policy. And in Yischer v. Yates, 11 Johns. 28, Kent, C. J., after recognising the authority of these cases, said, "and when we consider the importance of popular elections to the constitution and liberties of this country, and that the value of the right depends upon the indepen- dence, moderation, discretion and purity with which it is exercised, we cannot but be disposed to cherish a decision, which declares gambling upon such elections to be illegal, as being founded in the clearest and most incontestable principles of public policy." It has also been decided in Pennsylvania, in the case of Smyth v. McMasters, 2 P. A. Browne 182, that "wagers upon the result of an election. Laval v. Myers. 735 (Wagers upon elections.) whether laid before or after the election, are illegal and void." Not having the book, but taking this note from "Wharton's Digest, I do not know the nature of the elec- tion spoken of, nor by whom the bet was made. Upon every view, then, wbich I have been able to take of this ease, I am of opinion, that the wager is illegal, and that the action ought not to be maintained. The case is, therefore, stricken from the docket. The plaintiff moved the court of appeals, that the case might be ordered to be restored to the docket. Axson, for the motion, cited Hasket v. Wootan, 1 !N". & M. 180; Allen v. Hearn, 1 T. R. 56; Jones v. Eandall, Cowp. 37; and the dissenting opinion of Spencer, J., in Bunn V. Eiker, 4 Johns. 437. Seymour, contrsi. CoLCOCK, J., delivered the opinion of the court. "We concur with the Recorder, in the sound and elaborate view which he has taken of the doctrine on this subject, as applicable to the present case ; and the motion is, there- fore, dismissed. Motion refused. It was decided, in New York, as early as 1809, tiat a wager between two electors, upon the result of tlie gubernatorial election, was Toid, on the ground of public policy, and that no action was maintainable thereon. Bunn V. Eiker, 4 Johns. 426. This was followed, in that state, by Lansing «. Lansing, 8 Johns. 454, where it was determined that, even if the loser had.given his negotiable note for the amount of the wager, the invalidity of the contract was a good defence as against an endorsee of the note. And in Vischer v. Yates, 11 Johns. 23, it was held by Kent, C. J., that although the amount of the bet had been deposited with a stakeholder, an action would lie against him, by the loser, to re- 736 Laval v. Myers. (Wagers upon elections.) cover back the amount of his deposit. In Pennsylvania, the same point was ruled in Smyth v. McMasters, 3 P. A. Browne 182, where it was de- cided, that a wager on the result of the election for governor was illegal and void; in that case it was said by Rush, P. J., that the elector "having divested himself of his own independence, was a fit instrument of corruption to fasten the chains of slavery upon all around him." And now, under the statute of that state, all contracts or promises de- pending upon a bet on the result of an election, are null and void. Lloyd V. Leisenring, 7 Watts 294 ; Wagonseller v. Snyder, Ibid. 343. The law is the same in California, where it is held, that wagers upon the result of elections are against public policy, and therefore void. Johnston «. Russell, 37 Cal. 670. So also, in the state of Kansas, Reynolds v. McKinney, 4 Kansas 94 ; Jennings v. Reynolds, Ibid. 110 ; and in Illinois, Gregory «. King, 3 Chicago Leg. News 349. Different opinions, however, exist as to the eifect of the deposit of a wager in the hands of a stakeholder, upon the rights of the parties. In Pennsylvania, by statute, money bet on an election is forfeited to the use of the overseers of the poor, who may recover the amount, by action, either from the stakeholder, or from the winning party, if it have been paid over, provided suit be brought within two years. Purd. Dig. 380. But if the overseers do not sue within the two years, then, the losing party may recover back his money from the stakeholder, if it still remain in the hands of the latter. Forscht v. Green, 53 Penn. St. R. 188. If, however, the money have been paid over to the winner, it cannot be recovered back by the loser, or attached by his creditors. Speise v. McCoy, 6 W. & S. 485. The statute does not avoid a loan made in another state for the purpose of betting upon the presidential election ; such loan is recoverable in Pennsylvania. Scott v. Duflfy, 14 Penn. St. R. 18. A notice to the stakeholder not to pay over money deposited in his hands upon an illegal wager, must come from the owner of the money. Reichly v. Maclay, 2 W. & S. 59. And a joint action will not lie by the depositors to recover back the same. Mytinger v. Springer, 8 W. & S. 405. In California, money deposited with a stakeholder, may be recovered back, provided the wager be repudiated and a return of the money demanded, before the election has taken place, and the result become generally known, but not afterwards. Johnston v. Russell, 37 Cal. 670. Whilst in Kansas, the amount may be recovered back, or attached by a Laval v. Myers. 737 (Wagers upon elections.) creditor of tlie depositor, at any time before it is paid over. Reynolds «. McKinney, 4 Kansas 94 ; Jennings v. Reynolds, Ibid. 110. In Illi- nois, if a negotiable note be given for an illegal wager, the illegality of the consideration, is no defence in a suit by an endorsee for value. Adams ■». Wooldridge, 4 111. 255 ; Shirley v. Howard, 3 Chicago Leg. News 230. And see Gregory «. King, Ibid. 349. A wager as to who will be the president of the United States, is a wager upon the result of an election within the state, because the elec- tion in the state contributes to the result, and the election of presidential electors is meant, when the wager is made upon the election of presi- dent. Commonwealth v. Davis, 2 Leg. & Ins. Rep. 18. For the form of an indictment for betting on an election, see Sherban v. Common- wealth, 8 Watts 212. 47 APPENDIX CUMULATIVE VOTING. The following remarks on cumnlative voting, a subject wliicli is attracting much attention,, both in England and America, are taken from a report made to the senate of the United States, on the 2d March 1869, by the Hon. Charles R. Buckalew, from a select committee on repre- sentative reform, and from a speech of the same learned gentleman delivered in Philadelphia on the 19th iN'ovem- ber 1867. Ours is said to be a government of the people, meaning, by that term, the whole electoral body with whom the right of suffrage is lodged by our constitution. The peo- ple, considered in this sense, are said to rule themselves, and our system is, therefore, described as one of self- government; those who are bound by the laws are to enact them. Power is, in the first instance, exerted by them, and obedience yielded afterwards ; all rests upon their voluntary assent and upon their free action. But, as it is impossible, that the whole mass of the political community should assemble together, for the purpose of enacting or agreeing upon those rules of conduct which are to bind the citizen, and as it would be impossible for such an enormous body, even if convened, to act with convenience, or to act at all, we, like the people of other countries, have resorted to what is known as the repre- sentative system. 740 Appendix. (Cumulative voting.) From the impossibility of convening ourselves together to determine those great questions which pertain to the political and social bodies, and about which government is employed, we have determined to select from among ourselves a certain number of persons, with whom shall be lodged all our powers connected with legislation and with government, and whatsoever they shall determine shall be to us, and to all men within bur borders, the law of individual conduct. In carrying on this system of representative government, the manner in which the agents of the people shall be selected, becomes in the highest degree important. Although by our theory, although by our fundamental principle of self-government, all the people are to be represented in the making of laws, and in the administration of government, in point of fact, we have not attained to this result. We have fallen short of it in our arrangements, and hence it is, that men of intelligence and sagacity, driven to their conclusions by thorough examination and full inquiry, have been com- pelled to declare that our system is imperfect, and imper- fect to such an extent, that the quality of our government is affected and many pernicious things have place in its administration. Instead of there being, under the representative system, as it is known among us, a representation of the entire electoral body, of all the individuals who compose it, there is, in fact, a representation of a part only. In other words, representation, instead of being complete and co- extensive with all. those who are to be represented, and who are to be bound by the action of the government, is partial and restricted to a part only of the political body. In the infancy or in the early stages of a government, an imperfection of this kind may be permitted or overlooked. The affairs of society, when they are not complicated, before the community has become rich, before its affairs, social and political, become involved and intricate, may , admit of very rude and imperfect arrangements ; and yet Appendix, 741 (Cumulative voting.) the people may be well governed, the laws may be just and wholesome, and administered in the proper spirit and with complete success. But as wealth accumulates, as population becomes dense, and great cities grow up, as vices are spread through the social body, and as widely- extended and complicated political action becomes neces- sary, those earlier and simpler arrangements (imperfect always), become positively pernicious and hurtful; and the necessity arises for their correction, and that the sys- tem of government shall be purified and invigorated by amendment. In popular elections which are held or taken under the majority, or rather under the plurality rule (which ordi- narily amounts to the same thing), the smaller number of , voices which are spoken in the election of representatives are stricken from the count. When the officers charged with the duty of collecting the voices of the people come to make up the count and declare the result, they strike from the poll or the return all those who, when numbered, are the smaller quantity or the smaller political force. Then, after representatives selected in this manner by a majority merely (by a part of the community), are con- vened together, when they come to act in the business of government — to enact laws — ^they again act by a similar rule ; the majority in the representative body pronounce the opinion and decree of that body, and what they pro- nounce becomes the law, binding upon all the people. Now, what is observable in this statement of facts? In the first place,, in selecting representatives, we strike off a part of the political body; then again, in representative action, we strike off the minority of the representative body, who represent another portion or mass of the popu- lar electors; and the result is, that our laws may be made by men who represent a minority of the people who are to be bound by the laws so made. A representative majority may not be, in point of fact, and often is not, a represent- ative of the majority of the people. Is it not then evi-' 742 Appendix. (Cumulative voting.) dent that, instead of our representative system being what we originally intended it to be, and what we had supposed it would be, it is, in its practical action, characterized by imperfections which must arrest universal attention, when the facts are examined, and provoke a cry for some mea- sure of amendment and reform. Formerly, when elections of representatives in congress were had by general ticket, a great inconvenience resulted, which became at last offensive and intolerable ; for a politi- cal majority in a state, organized as a party, and casting its votes under a majority or plurality rule, secured, in ordinary cases, the entire representation from the state, and the minority were wholly excluded from representa- tion. To avoid this inconvenience and evil, which had become general throughout the country, congress inter- posed and, by statute, required the states to select their representatives by single districts, that is, to divide their territory into districts, each of which should elect one member. This contrivance, dictated by congressional power, ameliorated our electoral system, mitigated the evil of which general complaint had been made, and was an unquestionable advance in the art of government amongst us. But, retaining the majority or plurality rule for elections, and restricting the power and free action of the elector, it was imperfect in its design, and has been unsatisfactory in practice ; it has not secured fair representation of political interests, and it has continued in existence, in a somewhat mitigated form, the evils of the plan of election by general ticket, which it superseded; still, one body of organized electors vote down another; electoral corruption is not effectually checked; and the general result is, unfair representation of political inter- ests in the popular house of congress. Besides, the single district plan has called into exist- ence inconveniences peculiar to itself, and which did not attach to the former plans. It excludes from congress men of ability and merit, whose election was possible before, Appendix. 743 (Cumulative voting.) and thus exerts a baneful influence upon the constitution of the house. Two causes operate to this end ; in the first place, no man who adheres to a minority party, in any particular district, can be returned; and next, great ra- pidity of change is produced by fluctuation of party power in the districts. . Again, the single district system gives rise to gerrymandering in the states, in the formation of districts ; single districts will almost always be unfairly made ; they will be formed in the interest of party, and to secure an unjust measure of power to their authors, and it may be expected that each successive district apportion- ment will be more unjust than its predecessor. Parties will retaliate upon each other, whenever possible ; the dis- franchisement suffered, through one decade, by a political party, may be repeated upon it in the next, with increased severity, but if it shall happen to have power in the legis- lature, when the new apportionment for the state is to be made, it will take signal vengeance for its wrongs, and in its turn indulge in the luxury of persecution. The manner in which the right of suffrage shall be ex- ercised, always a question of high importance, is one of difficulty also. It has been regulated in various ways in our states and in foreign countries, but must be considered, in many respects, as still open to debate. We have pretty generally adopted the vote by secret ballot, for popular elections, but whether votes be given by secret or open ballot, a question will remain, as to the manner in which they shall be bestowed upon or distributed among candi- dates. Where but one representative, or other official, is to be chosen by a constituency, it is readily understood, that a single vote is to be given by each elector to the candidate of his choice ; and such is the uniform regula- tion. But where more than one person is to be chosen by a constituency, the manner of bestowing votes upon candidates, is a question of more difficulty, and various regulations have been made or proposed concerning it. By the general-ticket plan of distributive voting, the 744 Appendix. (Cumulative voting.) elector has assigned to him a number of votes equal to the whole number of persons to be chosen, and is authorized to bestow them singly upon a like number of candidates ; upon this plan, presidential electors are chosen in all the states, except Florida. By the single district plan, the general constituency is divided into parts, by territorial lines, and each part constituted a sub-constituency, to vote separately and choose one person ; the voter casts a single- vote for his candidate, and has no participation in the action of the general constituency, beyond the giving of his district vote; upon this plan, prescribed by statute, representatives in congress are now chosen. The limited vote obtains, where the voter is forbidden to vote for the whole number of persons to be chosen by the constituency, but is authorized to give single votes to each of a less number, or a single vote to one. Upon this plan, inspectors of election are chosen in Pennsylvania; each elector votes for one inspector, and yet two are chosen; here is a limitation upon the voter; instead of voting for both, the law says, that he shall vote but for one. "What is the practical result throughout the state, under this law? Why, that one inspector belongs to the majority party, in each election district, and the other belongs to an opposing one; in other words, both the parties into which our political society is ordinarily di- vided, are represented in the election boards. Thus we secure representation of the entire mass of the electors, and yet we secure it by a limitation upon the votes of individual electors. What has been the practical result of this arrangement, which is found in the state election law of 1839? has the result been good or bad? Why, there is not an intelligent, honorable citizen in the com- monwealth, who would not cry " shame," if that law were repealed. It is a law by which elections are kept compar- atively pure, by which fraud is prevented, and fairness is secured to the citizen in polling his vote. A notable in- stance of the application of the limited vote is found in Appendix. 745 (Cumulative voting.) the act of the British parliament, passed in 1867, whereby it is provided that " at a contested election for any county or borough represented by three members, no person should vote for more than two candidates," and henceforth, in the election of members of the popular house of parliament, where a constituency select three members, two will be given to the majority, and one to the minority of the electors, assuming that the latter constitute so large a mass as one-third of the whole number. The cumiilative vote is the concentration of two or more votes upon one candidate, or upon each of a greater number; it may obtain whenever the voter has assigned to him more votes than one, and is permitted to cast them otherwise than singly among candidates. The unre- stricted or free vote obtains where the voter has assigned to him a number of votes equal to the whole number of persons to be chosen by the constituency, and is permitted to cast them according to his own discretion and choice, without legal restraint; in such cases, he may bestow them all upon one candidate, or cumulate them upon more candidates than one, or cast a part of them singly, and a part of them upon the principle of cumulation, precisely as his judgment may direct him and the possi- bilities of the case may permit. The plan of cumulative voting was, in the first instance, proposed, explained and advocated by James Garth Mar- shall, a subject of Great Britain; and by his proposition and his advocacy of it, he has given his name to the political history of his country, and to the political his- tory of representative institutions everywhere, in future times; for no one previously had mastered this subject with such grasp; no one had looked into it with such intuitive perception of all its characteristics, and was able to strike precisely the point where reform could be most safely and effectually introduced. It is preferable, in- finitely preferable, to all propositions for securing the 746 Appendix, (Cumulative voting.) representation of all interests in society, by any limita- tion upon the elector's vote. This system or plan of cumulative voting has been en- dorsed by John Stuart Mill, in his work on Parliamentary Reform, and in that on Representative Government, and since ably supported by him in the House of Commons. It has been recommended also by JEarl Grey, in his work on Parliamentary Reform'; it was proposed, during the consideration of the reform bill in the House of Commons, by Mr. Lowe, on the 5th July 1867, and after debate, received the very respectable support of 173 votes. It is beginning to attract, in this country, that degree of atten- tion which it merits, and which is naturally provoked by the inquiry which has taken place abroad. Mr. Mill, in his work on Representative Government, p. 59, after speaking of the advantages of the system of cumulative voting, says, " the natural tendency of repre- sentative government, as of modern civilization, is toward collective mediocrity ; and this tendency is increased by all reductions and extensions of the franchise, the effect being to place the principal power in the hands of classes more and more below the highest level of instruction in the community ; but, though the superior intellects and characters will necessarily be outnumbered, it makes a great difference whether or not they are heard; in the false democracy which, instead of giving representation to all, gives it only to the local majorities,. the voice of the instructed minority may have no organs at all in the representative body. In the American democracy, which is constructed on this faulty model, the highly-cultivated members of the community, except such of them as are willing to sacrifice their own opinions and modes of judgment, and become the servile mouth-pieces of their inferiors in knowledge, do not even offer themselves for congress or the state legislatures, so certain is it, that they would have no chance of being returned." It will be seen, that the unrestricted or free vote is more Appendix. 747 (Cumulative voting.) compreliensive and flexible than the others, and that it includes many of their features, and may be used to ac- complish their objects. It involves or includes the vote by general ticket, without the restriction that but one vote shall, in any case, be given to a candidate ; it may be used to accomplish the purposes of the limited vote, and of single district voting, in a just, eflectual and popular manner; and it includes completely the cumulative vote, with which it is, in character, closely allied. In brief, it -Combines the advantages of other plans, without their imperfections, while it is not open to any strong objection peculiar to itself. The ingredient, however, of greatest value and importance contained in it, and the one par- ticularly fitted to regenerate and give credit to elections, is, the principle of the concentration of votes. In fact, for practical purposes, in dissertation or argument upon the question of electoral reform, the terms " cumulative vote" and "free vote" may be interchangeably used (though the latter is most appropriate and accurate), to indicate a plan which commonly involves distribution as well as concen- tration of votes, and sometimes even the giving of single votes to particular candidates. The first consideration to be taken into account is, the simplicity and convenience of this plan of reform. It is easily understood, convenient of application, and will readily adapt itself to all new or changed conditions of political society; it is self-adjusting, and requires no law whatever to enforce it or afford it a sanction, beyond the act which shall simply call it into existence. The number of representatives to which a state shall be entitled being first ascertained, under the rule of distribution contained in the constitution, the law will simply declare that each voter of the state shall have as many votes as there are representatives to be chosen from his state, and at that point will stop, leaving the voter perfectly free to cast his votes according to his own judgment and discretion. The voter then may exercise his right according to any of the 748 Appendix. (Cumulative voting.) plans relating to the distribution or concentration of votes, which have heretofore been the subject of discussion, in- cluding those which have and those which have not been prescribed by legal enactment. But inasmuch as our po- litical communities will always be divided into political parties (or so long as free institutions remain to us), it must happen, that the voter will exercise his right with direct reference to his party associations — to the interests of the party to which he shall belong. He will vote (as he votes now) as a party man, and for candidates who have been selected by some form of nomination, by some agreement or concert of action among men of common views and common interests. The inevitable result will be, that political parties and the voters who compose them, will obtain fair and complete representation, by distribut- ing or concentrating their votes, in such manner as to se- cure it, and nothing can be more certain, than that they will be better judges of their own interests than the law- maker possibly can be ; for they will act with a full know- ledge of all the facts which pertain to an election, of the relative strength of parties at the time, the probable amount of the aggregate vote to be polled, and generally, of the effect of their voting in any particular manner. Of these matters the law-maker must be profoundly ignorant, or must conjecture or assume them at random; he cannot foreknow the future, nor adapt his arrangements to the ever-changing conditions of political society. It is for this reason, that imperfection will always attach to the limited vote, as a general plan to be applied to popular elections. The law-maker cannot know that his arbitrary limitation will operate justly, and secure his object at some future time. If he could know the exact relative strength of parties, in future years, he might apply his limitation to a constituency, with confidence ; adjusting it to the facts, he could obtain a proper result ; as this cannot be, the limited vote can be but partially applied to elections, and must, in most cases, be unsatisfactory ; it Appendix. 749 (Cumulative voting.) has rarely been applied to constituencies selecting more than three representatives, and can never be accepted as a plan for extensive use and application. The unrestricted or free vote, however, is not open to these objections; it will adjust itself to all cases, and it will have the most important and efiectual sanction ; for it will be put under the guardianship of party interest, always active and energetic, which will give it direction and complete effect to the full and just representation of the people. The unrestricted or free vote is in strict conformity with democratic principles, and realizes more perfectly our ideas of popular government ; for, by it, the whole mass of electors are brought into direct relations with government, and particularly with that department or branch of government (the principal one in power, if not in dignity) which makes the laws. All will participate really in choosing representatives, and all will be repre- sented in fact. "Now, the beaten body of electors choose nothing, unless it be mortification, and are not represented at all ; for the theory that they are represented by the suc- cessful candidates against whom they have voted — that those candidates, when installed in office, represent them — is plainly false. An elected official represents the opinions and the will of those who choose him, and not those who oppose his election ; as to the latter, he is an antagonist and not a representative ; for his opinions are opposed to theirs, and their will he will not execute. And this must always be the case where political parties act upon elec- tions, and a majority or plurality rule assigns to one party the whole representation of the constituency. Our present system of representation is, therefore, essentially partial and imperfect, and our great object in reforming it must be, to make it full and complete; if we cannot secure this object perfectly, it will be our duty to approach it as nearly as possible. Inasmuch as by extending to the elec- tor that freedom of choice and of selection which the law has heretofore forbidden, we can strike from our system of 750 Appendix. (Cumulative voting.) representative elections, almost entirely, the element of disfranchisement, and bring the whole electoral body into direct and useful relations with the representative body, we may congratulate ourselves, that this reform, while it will be rich and fruitful of results, in the purification of elections, in imparting energy and wisdom' to government, and contentment to the people, will also be strictly repub- lican in character, and democratic in principle, and will apply, more perfectly than ever before, those ideas of self- government which inspired our ancestors, when they established our political institutions. The unrestricted or free vote should be permitted be- cause it is just. That this quality pertains to it in a high degree, and constitutes one of its main characteristics, is beyond question. It gives an equal voice to every elector of a state, secures the elector from the peril of utter dis- franchisement, and affords to him also that freedom of choice which is indispensable to his complete and useful exercise of his right ; a vote at any point or place in the state is precisely as valuable and as important as at any other point or place ; location of the voter is immaterial, as affecting his right, or his consequence in the electoral body, and no preference in privilege or power is given, or advantage allowed, to one elector over another. Besides (and this is the great consideration), any material disfran- chisement of electors is rendered almost impossible; for every political interest of any considerable magnitude in a state, will have the complete opportunity afforded it of concentrating its vote upon a proper number of candidates, and those candidates will be chosen, not merely because they have more votes than other candidates (as under our present system), but because they are the recipients of an adequate support ; one mass of voters will not vote down, defeat or disfranchise another; one candidate will not beat another, in the ordinary sense of that expression. The full comprehension of this point may require reflection, by those to whom it is new, but no reflection is necessary Appendix. 751 (Cumulative voting.) to perceive the justice of a plan which will substantially strike disfranchisement from our electoral system. Lastly, it is but just, that the elector should have a greater free- dom of choice than is now allowed him, that his judgment should have freer action, that he should enjoy all possible facilities for performing his duty to his country, in exer- cising his right of suffrage. At present, he is hedged about and constrained by legal regulations which, while . wholly unnecessary to the public order and peace, cripple and impede him in the performance of his duty. He is held responsible for the character and action of the govern- ment, for, in theory, he controls it by his vote, and yet he does not possess all those facilities and rights, the posses- sion of which will justify that responsibility, and enable him to discharge all its obligations. In the matter of selecting representatives from his state to congress, perhaps, the most important of all electoral operations known in our country, he is allowed to partici- pate in the selection of but one out of the whole number ; the state may be entitled to six, to twelve or to twenty representatives, but the judgment of the elector can be exercised upon the choice of one only ; as to all the rest, he is excluded from taking part in their selection. Besides, his choice of a single representative must be exercised within and for a particular district, arbitrarily established by law, with such boundaries, population, interests and political complexion as may happen to be convenient or agreeable to a majority in the legislature of the state; and practically, he must select his candidate from among the men of the district and is excluded from all choice beyond it. When to all this we add, that the elections held in single districts are necessarily subjected to the ma- jority or plurality rule, which very commonly renders a large part of the votes cast unavailing for the purpose for which they are given, we have the case fully presented as one of inconvenience and hardship upon the elector. The law has been busy, where it should have been inactive, 752 Appendix. (Cumulative voting.) and the voter is bound by inconvenient and injurious re- strictions, which he can neither evade nor defy. It is time that the hand of power be lifted from the citizen, and he be permitted to perform his electoral duties with all possible freedom. The justice of the proposed reform is, therefore, evident; it extends popular power upon a principle of equality, limits disfranchisement, and provides the voter with the necessary facilities for the exercise of his right. The unrestricted or free vote will greatly check corrup- tion at elections ; it will take away the motive to corrupt, and thus strike an eflectual blow at the source of a great evil. Now, money and patronage are usually expended upon elections, to secure a majority or plurality vote for one or more candidates, over one or more other candidates, and are directed and applied to the comparatively small number of electors in the constituency who hold the balance of power between parties; those persons being bought or seduced, victory is secured. The importa- tion of voters into a state or district, or their fraudulent creation within it, is with a like object. And such cor- rupt influence or practice, when resorted to by one party, provokes like conduct in an opposing one, until both be- come tainted with guilt, and unfitted for vindicating the purity of elections. This evil grows in magnitude, yearly, and it will continue to increase, until those motives of in- terest which produce it shall be weakened or destroyed. A new right to the elector, whether in the form of the free or cumulative vote, or of personal representation,* or a new protection to him in the form of the limited vote, will check corruption ; but of these remedies, the first is most practicable and effectual. The limited vote cannot have extensive application, and is but a rude contrivance. Personal representation is a scheme of great theoretical * For an account of the theory of personal representation, see Mill on Representative Government, p. 56 ; and Sterne on Representative Govern- ment and Personal Representation. Appendix. 753 (Cumulative voting.) merit; it has been tried partially in Denmark, and has received elaborate vindication from authors of distinction in England, in Switzerland and in France ; but it may be put aside from the present discussion, because it is com- paratively intricate in plan and cumbrous in detail, be- cause it assails party organization, and because some of its most important eft'ects cannot be distinctly foreseen ; it is so radical in character, so revolutionary in its probable effects, that prudence would dictate, it should be very de- liberately considered, and subjected to local experiment and trial, before it be proposed for adoption, upon a grand scale, by the government of the United States. But why will the cumulative or unrestricted vote check corruption ? It will have this effect — it will operate effi- ciently to this end — ^because it will render any ordinary effort of corruption useless and unavailing. The corrup- tion of voters will' not change the result of an election ; it will elect no candidate and defeat none in con- tested states or districts, unless, indeed, it be carried on and carried out upon a gigantic scale, beyond any ordi- nary experience of the past or probable occurrence of the future. An average or common ratio of votes for a repre- sentative in congress, taking the whole country together, is now 25,000, and it will be much greater in future times. Assume then, that 600,000 votes are to be cast in Penn- sylvania, at an election, of which each party has one-half, and that twenty-four representatives are to be chosen; this is a supposition very nearly conformed to actual num- bers in that state; now, it is evident, that either political party, by resorting to the cumulative vote, can elect twelve representatives, and thus secure to itself exact and just representation, and no art nor effort can prevent it. But suppose further, that corruption shall assail the electors, and that some thousands of votes shall be changed thereby, or that, in the interest of one of the parties, so many as 10,000 or 20,000 voters shall be imported into the state, or 48 754 Appendix. (Cumulative voting.) be fraudulently created or personated within it, in either case, no efiect will be produced; the result .will be un- changed; in short, in the case supposed, a fraudulent increase of its vote (and of the total vote) by a party, to the extent of 20,000, will not give to it any advantage, nor will its corrupt acquisition of 5000 or 10,000 votes from the opposite party. It follows, that corruption will, in no ordinary case, be resorted to ; it will be effectually discouraged and prevented, and even in the extreme case of the corruption of a large number of voters in a state, the resulting evil will be reduced to its minimum. "What has been said concerning the choice of repre- sentatives, will apply with equal if not greater force, to the choice of presidential electors. If the representative presidential electors were chosen in the several states (save those which have but one), upon the plan of the cumulative vote, there would be, as to them, due repre- sentation of the people in the electoral colleges, and the elections for choosing them would receive a much needed purification ; millions, now expended upon those elections, would be kept out of the hands of political agents, and be applied to better and nobler uses. That freedom of the vote will have the effect claimed for it, will more clearly appear from considering the manner in which the present plan of elections operates to invite or produce corruption; by considering the evil which exists, we will be better able to judge the merits of the remedy proposed. Popular elections in the states for federal or national purposes, are, either by a general ticket for the whole state, or by a single ticket in district divi- sions ; as before stated, the former obtains in the choice of presidential electors, the latter, in the choice of repre- sentatives to congress; but to both is applied the plurality rule, and a struggle invited between candidates and par- ties for preponderance of vote. Whichever can be made to outnumber an opposition upon the return, will win the whole result, and wield the entire power of the Appendix. 755 (Cumulative voting.) constituency in an electoral college, or in congress; antagonism is thus made an essential element of the proceeding, and the result presents to us the spectacle of victor and vanquished, the former crowned with power and exultant in its strength, the latter humiliated and powerless. And it is important to observe, that the suc- cessful party does not obtain merely a power proportioned to its vote, but obtains the whole power of the constitu- ency ; the whole vote cast against it or withheld from it, is virtually counted to it and added to its true vote. An issue thus made up for popular elections, must be one portentous of evil; and so far as it is unnecessary to secure popular representation, must be denounced, as plainly unjust as well as injurious. The free vote will be a guarantee of peace to our country, because it will exclude many causes of discord and complaint, and will always secure to the friends of peace and union, a just measure of political power. The absence of this vote in the states of the south, when re- bellion was plotted, and when open steps were taken to break up the union, was unfortunate, for it would have held the union men of those states together, and have given them voice in the electoral colleges and in con- gress. But they were fearfully overborne by the plu- rality rule of elections, and were swept onward by the course of events into impotency or open hostility to our cause; by that rule, they were largely deprived of repre- sentation in congress; by that rule, they were shut out from the electoral colleges; dispersed, disorganized, unre- presented, without due voice or power, they could inter- pose no effectual resistance to secession and civil war; their leaders were struck down at unjust elections, and could not speak nor act for them in their own states nor in the capitol of the nation. By facts well known to us, we are assured, that the leaders of revolt, with much difficulty, carried their states with them ; even in Georgia, the empire state of the south, the scale was almost bal- 756 Appendix. (Cumulative voting.) anced, for a time, between patriotism and dishonor; and in most of those states, it required all the machinery and influence of a vicious electoral system, to organize the war against us, and hold those communities compactly as our foes. In those same states, the free vote will now allay an- tagonism of race, and will substitute therefor the rivalry of parties formed with reference to the policy of the gene- ral government. The tendency of parties is to form upon national issues and not upon state ones, and this tendency will operate more strongly, if causes of offence between the races shall be removed or lessened. And what can accom- plish this more perfectly than the free vote? for, under it, one race cannot vote down and disfranchise the other; each can obtain its due share of power, without injustice to the other, and there will be no strong and constant motive, as now, to struggle for the mastery. This fact (the importance of which cannot be over-estimated) will allay animosity and prevent conflict; and because the free vote will have this certain effect, it will nationalize parties in the south, and will be to the whole country an invaluable guarantee of order and peace. In extending suffrage largely, in extending it to include many hundreds of thousands of voters of another race than our own, it becomes us to look to our electoral machinery, and to amend it in those parts which have been found defective, or which do not seem well adapted to the new strain to be put upon it. Unquestionably, there is a large mass of honest opinion in the country, opposed to negro suffrage, and many of those who support it in congress and out of congress, put their support on the ground of neces- sity — upon the ground that, in order to secure the fruits of emancipation, it is necessary, that the emancipated be armed with the power of self-defence. But all must agree, that this great experiment of extended suffrage, being once determined upon, should have a fair trial; that ,all the conditions proper to its success should, as far as Appendix. 757 CCumulative voting.) possible, be established by the government; and those who sincerely believe that the experiment will have bad results, must approve a plan of voting which will cer- tainly mitigate its possible evils. But the salutary effects pf the free vote, as a guarantee of peace, though well illustrated by the southern states, will not be confined to them; everywhere it will decrease the violence of party contests, and create more amicable relations than now exist among our people. The unrestricted or free vote will secure men of ability and experience in the house of representatives. It is be- lieved, that changes are now too frequent in that house, and that the public interests suffer detriment from this cause. The constitution very properly assigns short terms of service to the members of the house ; but frequency of election does not involve rapidity of change; popular power may be retained over the house, and yet the greater part of its members be continued, by re-election, for a considerable period of time ; in other words, frequent elections and permanent membership are not incompati- ble. But in point of fact, the members of the house are frequently changed, so that members of less than four years' service always constitute a large majority, and it is a rare case that a member continues beyond a third term. Under such a system or practice of rapid change, the average character of the house for ability cannot be high; two and four year men can know but little of the busi- ness of government, can be but imperfectly qxialified to curb abuses in the executive department, and to expose or comprehend the true character of most questions of do- mestic and foreign policy. There are several reasons which account for frequent change in the membership of the house, of which the single-district system is chief; the fluctuation of party power is next in importance, but is intimately connected with the former. . The single-district system has carried the idea of local representation to excess, and has produced 758 Appendix. (Cumulative voting.) a class of inconveniences peculiar to itself; the idea of assigning a representative, by law, to a special district within a state, is naturally supplemented by the idea of rotation in the representative privilege among the locali- ties within the district; hence, very commonly, party nominations are made in turn to the several counties, par- ishes or other municipal divisions of the state, which ren- ders necessary the frequent selection of new men for repre- sentative nomination ; the claim of locality becomes more important, and is often more regarded, than the claims or fitness of candidates, in making party nominations, and this, although there be no diversity of interest among the people in the different parts of the district. The other cause which has been mentioned co-operates with this, though subordinate to it in effect ; changes of party power in districts, where one party does not largely predominate over the other, are, at all times, likely to occur, and to de- feat the member of the house from the district, although his own party may desire to continue him in the public service. These causes of change would have but slight operation, if delegations from states were elected by general ticket ; and would have still less, if they were elected upon the plan of the cumulative or free vote; and the general ticket system being quite inadmissible, for the reasons which apply to it, we are driven to the cumulative or free vote, as the practicable and eflfectual measure of reform. It will continue members of merit, in the house, for long periods of time, because it will relieve them, and those who support them, from the causes of change above men- tioned. They can be re-elected, with certainty, so long as the party, whose representatives they are, desire their con- tinuance in service, and it may be reasonably expected, that some men of distinction and intellectual power will always be found in the house, whose periods of service count by 20 or 30 years ; they will be the great represent- atives of party, and will give lustre and power and use- Appendix. 759 (Cumulative Toting.) fulness to the house, whilst they will be the objects of profound attachment and honest pride in the states they represent. Congress will become, much more than at present, a theatre of statesmanship, and a fit representative of a great people, whose extended territory, diverse popu- lations, and varied interests demand great ability and wisdom in the enactment of laws. Our present system, admirably calculated to repress merit and lift mediocrity, will be supplanted by one which will produce precisely the opposite result. At present, a member of the house, holding his seat in- securely, cannot devote himself to the public business with that zeal and confidence which his position demands. He is involved, all the time, in a contest for official existence, and his energies are thereby absorbed and wasted ; if he have a just ambition to serve the people, he must repress rivals at home, overcome a rule of rotation in his district, and fortify himself against fluctuations of party power. It will be expected of him, that he distribute the patron- age of the government to men who will be efficient in supporting his re-election; and thus appointments to office and government contracts must be his peculiar study, and their distribution a leading object of his labor; he must be liberal' in his expenditure of money upon elections, to retain his popularity and place ; and the more political contributions from abroad he can obtain to influence elec- tions in his district, the more admired and the more secure he will be. In brief, his time and effisrts, instead of being expended for the public, must be expended on personal objects, if he desire to remain, for any consider- able time, a representative of the people. Undoubtedly, many of the best mea of the country are deterred from entering upon a congressional career, continuance in which requires such sacrifices to an evil system, so much of un- pleasant effijrt, attended with uncertainty and probable mortification. But freedom to the elector has one special advantage. 760 Appendix. (Cumulative voting.) hitherto unnoticed, over single-district voting. Under the district system, a large part of the citizens of a state are absolutely barred from an election to congress ; they can- not be chosen in districts where their party has not a pre- ponderance of vote; the difference in strength between -parties may be slight, but it will virtually constitute a rule of exclusion, which will be rigidly enforced. But the cumulative or free vote opens the doors of the peo- ple's house to any citizen of a state, whenever those who agree with him in opinion, in his state, will give him a competent support ; they can elect him to congress re- gardless of state or district majorities. This is an advan- tage of immense value, if republican principles be true, and republican institutions worthy of being carried to their utmost limit of perfection, as fit and proper for the use and enjoyment of mankind. Our states are well suited to the application of the free vote; the difficulties and obstacles which exist in Great Britain do not obtain with us. There are now only six states to which it will not apply as a plan for representa- tive elections, to wit, Delaware, Florida, Kansas, K"ebraskaj ISTevada and Oregon; they constitute the one-member states, and would be unaffected by the new plan. But from this class, Kansas will pass at the next apportion- ment, leaving but five states out of thirty-seven, to com- pose this class ; and as they would select but five repre- sentatives, out of about 250 who will constitute the house, their influence upon general results would be unimportant, if not inappreciable. It is to be remarked also, that these sta.tes, in common with all the other states, might come under the operation of the free vote, if that vote should be applied to presidential elections, because each of them will be entitled to choose three electors. The two-member states are Rhode Island and Minne- sota, and both will probably change their position at the next apportionment of representatives ; Rhode Island will fall off to one member, and Minnesota rise to three. Appendix. 761 (Cumulative voting.) Other states, however, two or three in number, may take their place, and hence, it will be worth while to consider the position of two-member states, with reference to the plan of the free vote. It has been sometimes said, with- out due reflection, that the cumulative vote is not suited to elections where two persons are to be chosen by a con- stituency, because, if it have any practical effect, it will give equal representation to the majority and minority; but the frequent application of the limited vote to dual elections (as in the cases of inspectors of elections and jury commissioners in Pennsylvania), may cause us to pause, and examine this objection with some care, before we accept it as a sound one. Carefully examined, it may turn out to be more specious than solid, and we may fur- ther discover that, in the case of the representation of our states in the federal government, there is an important fact which bears upon this objection, and deprives it of any appearance even of strength or force. In the first place, let us test the objection, and illustrate its futility by a supposable case ; take a constituency of 32,000 electors, 20,000 of whom are republicans, and 12,000 democrats, entitled to elect two members to congress; as there are 32,000 voters and two members to be chosen, the full ratio or number of votes for a member is 16,000; assign now one member to the republicans, and the just demand of 16,000 republican voters is complied with and ex- hausted ; they can have no further claim to representation. What have we left? "Why, on the one hand, 4000 repub- lican voters, and on the other, 12,000 democrats ; and the simple question for us to determine is, whether the 4000 or the 12,000 shall have the second member; the cumula- tive or the free vote will give that second member to the 12,000 democrats; unjust voting will give him to the 4000 republicans. Where, then, a minority in a two-member constituency exceeds one-third of the whole number of voters therein, it does not seem unreasonable to assign to them the second 762 Appendix. (Cumulative voting.) member, and thus, in fact, an equality of representation with the majority. It is a case where complete or exact justice is impossible; there must be disfranchisement to some extent ; but that disfranchisement should be reduced to its minimum, and made to press as lightly as may be upon the constituency. What, then, can be said as to two-member constituencies is this, that any rule of voting for them must, in the very nature of the case, be imperfect in result, but that the cumulative vote or an equivalent plan, applied even to them, will be one of reform and improvement. But an important consideration remains to be men- tioned; our states are represented in both houses of congress, and not merely in one ; a fact which changes entirely the character of this question in the two-member states. In Great Britain, there is no representation of the people, or even of districts, in the upper hous^ of parliament; compensation to a constituency for loss of political power in the house of commons cannot be ob- tained by them in the house of lords. "With us the case is widely different; the political majority in a state will, ordinarily, have both the senators from the state ; in other words, the whole representation of the state in the senate. If, then, in two-member states, they have but one-half the representation of the state in the house (as against a minority of one-third or upwards), the aggregate of their representation in congress, will still be many times over what it should be, upon any principle of justice or of numbers. It is pretty generally agreed, that the cumulative or free vote is admirably suited to three-member constituencies ; the states which now elect three members each, are Ar- kansas, California, New Hampshire, Vermont and West Virginia ; in such states, the majority will always have two members, and the minority, if it exceed one-fourth the whole constituency, and one-third of the majority vote, can obtain the third. We cannot better illustrate the Appendix. 763 (Cumulative voting.) scheme than by the case of Vermont; in that state, there are, in round numbers, 60,000 voters, of whom 40,000 are members of the republican party, and 20,000 of the democratic party ; by law, that state is entitled to three representatives in congress. Now, what ought to take place? The majority should elect two representatives, having 40,000 votes, and the minority should elect one, having 20,000 votes ; but can that be so, in point of fact, at present? If the electors of that state vote for three representatives, by general ticket, the majority would elect the whole three; if the state be divided up into single districts, it is a matter of chance (or rather, per- haps, a matter of honesty in the political majority of the legislature) how the result will be, whether all three districts will have majorities of the same political com- plexion or not. By cumulative voting, by authorizing the 20,000 minority electors of the state to give each three votes to one candidate, that candidate would receive 60,000 votes, and the majority could not defeat him ; the majority, voting for two representatives, could elect them, but they could not elect the third. Suppose they attempt to vote for three candidates, they can only give each of them 40,000 votes, and the minority candidate has 60,000 ; if they attempt to vote for two, as they ought to do, that being the number they are entitled to, they can give them 60,000 votes each, the same number the minority candi- date has ; if they attempted to vote for one, they would give that one candidate 120,000; but, of course, they would not thus throw away their votes. The practical result would be, that the 40,000 majority electors in that state would vote for two candidates and elect them, and the 20,000 minority electors would vote for one and elect him. Having exhausted the list of states which elect less than four members, we find that twenty-four remain; of these, Connecticut, South Carolina and Texas each elect four members, and the remainder, various numbers, up to New 764 Appendix. (Cumulative voting.) York which chooses thirty-one ; they may be taken together in this examination, as an additional, though by far the most important class of states; they choose 218 out of the 243 members of the house. In this class, all the great states are before us, and all of secondary rank, challenging the wisdom of congress to reform and amend our political system, in some effectual manner ; for our country has, in some respects, outgrown the system provided for us by our ancestors ; new necessities press upon us, great evils afflict us, and it has become the duty of statesmen, not merely to administer or to carry on our plan of government, but to amend it also ; and to this end, we are to invite and welcome the best thoughts of men, abroad and at home, upon political reform, and give them, as far as possible, application and practical effect. Ifow, there can be no question that, if parties in the great states obtain repre- sentation according to the number of their votes, one of the greatest possible reforms in a republican government will be secured. All the arguments heretofore mentioned apply to those states with special force, because they con- tribute the main body of members to the house, and a defective plan of election operates within them with ex- tensive effect. As to them, reform will be most important and useful, and no reasonable effort should be spared in attempting to apply it. 'W.e have, in fact, as to the great states, no point left for examination, except the single one of practicability. Will the free vote work, and work well, in the great states? Those who distrust popular intelligence and judgment may deny, whilst those who confide in the people will affirm the practicability of the plan. But there is one leading consideration which is decisive upon this question ; it is, that where free action shall be permitted, each politi- cal party will pursue its own interests with activity, in- telligence and zeal, and will inevitably obtain for itself its due share of representative power. Thus, where a party shall have one-third of the popular vote of the state, Appendix. 765 (Cumulative voting.) it will cumulate its vote upon one-third the number of representatives to be chosen; where parties are nearly equal in strength in a state, the weaker one will cumulate its vote upon one-half the number of persons to be chosen, or within one of that number; where a party has a small majority in a state, and particularly where it is increasing in numbers, it will cumulate its vote upon one or two more than one-half the number of candidates ; and finally, in states with large delegations, a party with so small a vote as one-fourth or one-fifth the whole number, will cumulate its vote upon the small number of one, two, three or more representatives, according to the proportion which its vote shall bear to the total vote of the state. The due working of the plan is secured by the selfish in- terests with which it deals, and it is a matter of congratu- lation that, under it, the very efibrts of parties to secure power for themselves, will result in justice, that is, in the division of power between them according to their respec- tive numbers. It is idle to say, that voting in the great states will be confused and uncertain ; on the contrary, it will run ac- cording to party organization, at all times, and will adjust itself, naturally and inevitably, to all changes of opinion and organization in the political body ; and as political parties constantly divide society into parts, the relative strength of which can, at any time, be approximately stated, there need be no uncertainty nor confusion in the polling of votes. Even in times of transition and change, when popular power is departing from one party and at- taching itself to another, or when some third party takes ground upon a particular issue, or faction diverts a frag- mentary vote from a great party, the amount of disturb- ance, and consequent uncertainty produced, will not be considerable, and can be readily estimated, for all practical purposes, in fixing the number of candidates which any party shall support. The merit or practicability of a rule of elections is not to be judged upon a supposition which 766 Appendix. (Cumulative voting.) is unlikely or exceptional ; but even in the cases supposed, the elements of error and mistake will be reduced to their smallest possible quantity. Where the relative strength of parties is uncertain, that is, cannot be exactly known or estimated, or where the boundary of power between them is near the dividing line between ratios of representation, it will rarely happen, that a mistake will be made beyond the extent of one member, and the general result for the state will be but slightly disturbed. The argument for reform may be summed up in a few words; by it we will obtain cheap elections, just repre- sentation, and contentment among the people ; by it we will also secure able men in the people's house ; by it our political system will be invigora,ted and purified ; by it our country will "take a bond of the future;" that our government shall be a blessing and not a curse ; that our prosperity shall be enduring; that our free institutions "shall not perish from the face of the earth." The state of Pennsylvania has recently legalized the cumulative or free vote in the election of members of town councils, by the acts of 4th March 1870 and 2d June 1871. Purd. Dig. 1647. INDEX. AFFIDAVIT to petition, form of, 538. by whom administered, 544, AMENDMENT to petition, when allowed, 337, 349, 353, ill. requisites of, 33T, 349, 477. of answer^ not granted during the hearing, 349, 477. not allowed by legislative committee, 350. not reviewable in appellate court, 538, 548. APPELLATE JURISDICTION in contested election case, 538, 555-7. what questions may be reviewed^ 538. ARREST privilege of electors from, 277. " and of election officers, 280. BALLOT if the law require the election to be by, vivS voce BILLS OF ATTAfoTDER -^ definition of, 37. nature of, 86. BILLS OF EXCEPTION not allowed in contested election cases, 467. BILLS OF RIGHTS iiature of, 41. controlled by the constitution proper, 41. 768 Index. BOROUGH OFFICERS right of, only determinable in quo warranto, 455 vacancy, how filled, 455. nature of borough election, 457. BRIBERY of elector, not an infamous crime, 134. BUCKSHOT WAR history of the, 641. BY-LAWS power to make, incident to corporations, 20. CANVASSERS duties of, ministerial, 261, 300, 305-6, 434. have no judicial power, 300. returns, when conclusive on, 423. CASTING YOTE right of returning oflScer to give, 286. CERTIFICATE of election, not conclusive, on trial of contested elec- tion, 258, 320, 435. will not be enjoined, though founded on fraudulent returns, 314. can only be impeached by a direct proceeding, 314, 319. is primS, facie evidence of title, 632. CERTIORARI effect of, in contested election case, 538, 511. what reviewable on, 538. CITIZENS privileges and immunities of, 38. COMMISSION construction of, 291. does not confer title, 302, 581. cannot be recalled, unless vacated by judicial decision, 513. use of, if issued pending a contest, will be enjoined, 513. effect of, 581. . Index. 769 CONDITIONAL LAWS when valid, 16. CONSIDERATION when illegal, under the election laws, 612. CONSTITUTIONAL LAW the people have no legislative power in their primary assemblies, 3, 24. legislative power cannot be delegated, 3, 24. laws that violate the principles of the constitution are not valid, 5, 25. legislature cannot add to the constitutional qualifica- tions of electors, 44, 50. registry laws, not unconstitutional, 51. no person can be made to suffer for a criminal offence, except by due process of law, 1i. construction of the federal constitution, 96. taxes must be assessed on electors individually, 114. disqualifications for office, 134. meaning of provision that " elections shall be free and equal," 50, 63, 1T6. electors cannot be authorized to vote outside the dis- trict of their residence, 214, 251. construction of the state constitution, 231-4. elector, by accepting oflice, may waive right of voting, 286. congress may punish fraudulent registration at con- gressional election, 592. CONTESTED ELECTION must be determined on the merits, 2T0-4. courts in determining, act judicially, 466. practice in cases of, 466-T. jurisdiction to try, when exclusive, 656. CONVENTION powers of, not defined, 29, 32, CORPORATION power of, to make ordinances, 20. COURTS-MARTIAL jurisdiction to punish for desertion, exclusively in, 78., 82. 49 770 Index. CUMrLATIVE VOTING description and advantages of, TSO. DE FACTO OFFICERS acts of, good as to the public, 2*74-6, 439, 441, 452. who are oflScers de facto, 440, 443. DELEGATION of legislative power forbidden by the constitution, 3, 24. DESERTION" jurisdiction to punish for, exclusively in courts-mar- tial, IS. DISCONTINUANCE candidate cannot discontinue contested election, Sl'S, 534, 531. DISFRANCHISEMENT may be inflicted as a punishment for crime, 69, 13, 81. only incurred after trial and sentence, 69, 81. cannot be adjudged by election officers, 69. effect of, 73, 83. power of the states to inflict, 82. DISQUALIFICATION effect of vote for disqualifled person, 129, 144, 150. constitutional disqualifications for office, 134. for acting as election officers, 2T4. by acceptance of another office, 655. DIVISION of election district, destroys the functions of local officers, 51*7. ELECTION requisites of a valid, 681. to fill a vacancj'^, 679, 684. of judges, 685, 692-4. ELECTION DISTRICTS electors must vote in their proper, 214, 223, 236. what is an election district, 238. effect of division of, 51t, 526. Index. 771 ELECTION LAWS not required to be uniform, 50, 63, 1Y6. forms of, must be strictly pursued, 448. l?ut only such as affect the merits, 449. what provisions of, are directory, 529. ELECTION OFFICERS liability of, to action, 39, 52, 190, 192. not liable for mistake of judgment, 98, 190. presumptions in their favor, 98. nature of the action against, 194. damages in actions aga,inst, 195. when punishable by indictment, 195. form of indictment against, 195, Til. are judicial officers, 196; see 400, 402. misconduct of, when affecting the election, 268, 452. when eligible, 274, 452. i what persons incompetent to act as, 214. privilege from arrest, 280. acts of, when ministerial, 395, 400.Y election must be held by proper officers, 451. neglect of directory provisions by, not cause for re- jecting the poll, 453. courts cannot try contested elections of, 455. appointed for state, competent to conduct presi- dential election, 51T. are annual officers, 523. courts cannot allow extra compensation to, 590. may reject vote of a disqualified person, though on the registry list, 695. ELECTIVE FRANCHISE power to regulate, is exclusivelyin thestates, 27, 49, 72. a conventional right, 27, 90. when action lies for refusal of, 34. not a right of property, 36, 90. may be taken away by the states, 38, 94. negro suffrage, 49, 65. prior to the 15th amendment, negroes did not enjoy the, 49. ELECTORS. See Votees 772 Index. ELIGIBILITY meaning of, 143. EMOLrMENTS of office may be recovered from a usurper, 39L EVIDENCE of intention of voters, when admissible, 258, 264, 369, 385. returns, when evidence, 286. election papers, 3*78, 409, 480. if imperfect, may be sustained by parol, 3T8. effect of, 383-4, 385. best evidence must be produced, 384, 480. ballots the best evidence, 480. declarations of voters, for what purpose admissible, 385, 395, 413. circumstantial, to prove how an elector voted, 385, 408. must be relevant, 414. what may be proved in a contested election case, 414-15. rebutting testimony, 416, 422. EXECUTIVE motives of, in making appointment, not inquirable into, 286. EX POST FACTO LAWS definition of, 3Y. characteristics of, 38, 71. what are, 86-7. FAILURE TO ELECT where two polls are opened, both illegal, 583. PEES OF OFFICE election confers right to, 605, 611. may be recovered from a usurper, 605, 610. by action for money had and received, 605, 610. when reasonable expenses will be allowed in such action, 605. FRAUD question of, not to be submitted, without evidence to sustain it, 423. what amounts to, in election officers, 423, 432. Index. 773 TREEDOM OF ELECTION interference with, by military power, 603-5. GENERAL ASSEMBLY cannot delegate the power of legislation, 3. nor confer the elective franchise on other classes than those described in the constitution, 4*1. ILLEGAL VOTES effect of, on the election, 236, 249, 558. do not affect the election, unless sufficient to change the result, 454. if elector vote twice, second vote to be rejected, 480. votes received without preliminary proof illegal, 492, 558. vote of elector whose faculties are enfeebled by age, not illegal, 493. vote of idiot, illegal, 493. when illegal voting punishable by indictment, 695. INCOMPATIBLE OFFICES what are, 143. INDICTMENT for illegal voting, when sustainable, 695, 703. evidence in, for illegal voting, 703-4. requisites of, for illegal voting, 705, 710. particular disqualification must be stated, 705, 710. requisites of, against election officers, 711, 727. different officers cannot be joined, 711. INFAMOUS CRIME what is an, 134. bribery of elector is not, 134. INFLUENCE exerted on voters, effect of, 616. when indictable, 616. when it avoids an election, 616. INHABITANT does not mean citizen, 160, 168. 774 Index. INJUNCT'lOISr will be granted to quiet possession of office during a pending contest, 5T3. not granted to restrain certifying of fraudulent re- turns, regular on their face, 617, 623. wlien granted, in matters relating to elections, 623. INTEREST ^ when it disqualifies a person from voting, 196, 212-13. IRREGULARITIES do not vitiate an election, 260-1, 210-1, 320, 328, 428, 439, 448, 453, 496. what are deemed irregularities, 448, 449, 453. and what, matters of substance, 448. ISSUE will not be granted, in contested election case, 360, 364. JUDGES when elective, can be chosen in no other manner, 685, 693. remarks on an elective judiciary, 692. evils of the system, 692-3. JURISDICTION to try contested election, when exclusive, 143, 55T, 630, 656. supervisory jurisdiction of the courts, 210, 557. appellate, 538. LEGISLATIVE POWER cannot be delegated to the people, 3. constitutional rights of electors above, 44. LIMITATION petition not filed within time of, will be quashed,' 503. runs from day of election, 503. held otherwise, 515-16. MAJORITY how computed, 133, 299. Index. 775 MANDAMUS to compel election, when granted, 624, 631. to restore member, ousted without notice, 646. MILITARY POWER interference of, with freedom of election, 603-5. MINORITY election by minority vote, when valid, 126, 130, 133. MORAL LAW how far binding on law-makers, 5, 29, 85, 81-8, 200. NATURALIZATION certificate of, conclusive on election officers, 98, 105. powers of court of nisi prius, 98, 106. history of elections of 1868 in Philadelphia, 103-5. effect of certificate of, 105-6. parent's, how proved, 106. rights of naturalized citizens, as voters, 106. NATURAL RIGHTS what are, 88-9. right to pursue a particular calling, 89. do not include the right of suffrage, 90. NEXT TERM jurisdiction does not fall, by omission to decide at, 52T, 533, 546. NOTICE effect of want of, on an election, 450, 619, 684. OATH. See Affidavit. valid, though not taken on the Gospels, 437. neglect of officers to take, will not vitiate the election, 438. ORGANIZATION of municipal legislative bodies, 632. interference with, restrained by injunction, 632. OUSTER of member, without notice, illegal, 646. mandamus will lie, to restore, 646. otherwise, where there has been a trial on notice, 646. PENAL LAWS to be strictly construed, 11. 776 Index. PETITION requisites of, to contest an election, 320, 334-6, 351, 467, 550. if defective, will be quashed, 320, 335, 466. how verified, 336. must be signed, 336. petitioners will not be allowed to withdraw, 336. may be amended, 33T. affidavit, when sufficient, 538. PETITIONERS are competent witnesses, 366, 465. PLACE electors must vote at their place of residence, 214. an essential element in the right of suffrage, 251, 257. of the essence of a legal election, 450. PEOPLE the source of sovereign authority, 5. what laws may be submitted to a vote of the people, 18, 26. qualified voters constitute the, 93. POLLS may be rejected, when held at a wrong place, without necessity, 251. and when opened at a much later hour than prescribed by law, 251. PRESUMPTION in favor of acts of election officers, 98. in favor of legality of the vote of an alien born, 106, 385, 410, 413. rebutted by prima facie evidence of want of naturali- zation, 385, 411. that ballots have not been tampered with, will over- come that of correctness of the official returns, 483. PRIVILEGE of electors from arrest, 2Yt. trespass will not lie for violation of, 277. extent of, 280-1. ^d^- Index. 777 PROCESS OF LAW definition of, 74-5. what is due process of law, 15. PROXY who may vote by, 282. may be revoked, 285. PTJRGINa THE POLL illegal votes not to be taken from majority candidate, unless cast for him, 236, 249, 492, 558. QUALIFICATIONS federal, only extend to race or color, 65. proof of electors', how made, 152, 188, 189, 388, 403. decision of inspectors, not conclusive on questions of, 385, 404-5. effect of receipt of vote, without proof of, 452. of borough electors, not obligatory as to voters for general officers, 455. QUORUM what is a quorum, 130. presence of, how shown, 130. QUO WARRANTO not a writ of right, 144, 664. relator must have an interest, 146, 289, 664. defeated candidate has no interest, 147. must be brought during the term of the ofBce, 274. pleadings in, 301-2. jurisdiction in, not ousted by special remedy to con- test an election, 480, 663; contra, 656, 663. will lie, when there was no vacancy to be filled, 659. who is a proper relator, 664. RECORDER power of, to administer oaths, 544. is a judge, 689. must be elected, 685. RECOUNT when granted, in contested election case, 360, 365. REGISTER when evidence of qualification, 64. 778 Index. REGISTRY LAWS not unconstitutional, 51, 595. requisites of valid, 58, 61, 62. effect of, 64. practice under, 64. inspectors may reject vote of disqualified person, though on the registry, 695. REHEARING power to grant, after affirmance in appellate court, 558. REJECTION of entire polls, when allowable, 251, 493, 501-3, 681. interference of stranger, not cause of, 268, 452. for adoption of an erroneous rule of qualification, 450, 455. time and place of the essence of an election, 450. neglect of directory provisions, not cause of, 449, 453. in case of rejection of the poll, proof of legal votes may be made, 493. REMOVAL of residence, effect of, on rights of elector, 50, 236. RESIDENCE qualification of, in electors, lOt, 1Y2, 187, 189, 223, 236, 480. what is such, as to qualify a voter, 109, 113, 480. must be in the election district, 109-10, 223. means the same as domicil, 112, 113, 468. must be permanent, 113, 4T0, 473. change of, 113, 236, 470. how acquired, 113, 236, 410, 468, 478, when lost by appointment to office, outside the district, 143, 479. powers of election officers in reference to question of, 468, 478. may be acquired by persons in the military service, 480. RETURN JUDGES. See Canvassers. RETURNS evidence, in case of contest, 288. having been once canvassed, not open for reconsidera- tion, 307, 313. Index. 779 RETURNS— Continued. conclusive, in a collateral suit, SOT, 313. effect of, in a direct proceeding to contest the election, 313, 435. when conclusive on canvassers, 423. not conclusive on county commissioners, in ward election, 582. SOLDIERS cannot be empowered to vote outside the district of their residence, 214, 236. SPEAKER right of, to vote, 300. SPECIFICATIONS insufficient, will be stricken out, 335, 351, 359, 360, 471. when sufficient, 351, 359. when motion to strike out, must be made, 360. STATE COURTS cannot be invested with federal jurisdiction, 76. STATES power to regulate the elective franchise is exclusively in the, 27, 42, 49. may take away the elective franchise, 38. sovereign powers of the, 84-5, 92. STATUTES cannot be passed by the two houses in joint conven- tion, 22. construction of, 72, 77. SUPERSEDEAS of commission, must be by new appointment, 142. TAXES payment of, to qualify an elector, must be assessed on him individually, 114. need not be a poll-tax, 114, 124. assessment of, 116, 124. elector may pay one of several, as a qualification, 125. payment of, by a third person, 125. 780 Index. TERM OF OFFICE constitutional expiration of, 665. of person elected to fill a vacancy, 669. TEST-OATHS cannot be imposed on voters by the legislature, unless empowered by the constitution, 48, 97. may be imposed by state authority, 83, 9t. but not as a qualification for exercising a lawful avo- cation, 97. TICKETS containing two names for the same oflOlce, bad as to both, 258, 266. * but not as to candidates for other oflSces, 258. effect of misnomer of candidates, 258, 267, 436-t. containing surname only, not valid, 264. form of, 265-6, 299. designation of ofiice, 266, 438. containing the same name several times, good as one vote, 480. TIE-VOTE no election, in case of, 286, 299. TIME of opening the polls, effect of, on the election, 251, 257, 451. of closing, directory merely, 423, 445-7, 451. when it will be cause for rejecting the poll, 451. effect of receipt of votes, after time of closing, 451. TREASON definition of, 39. TRESPASS will not lie for violation of elector's privilege from arrest, 277. USURPER liable for profits of oflfice, 605. VACANCY in ofiSce, by failure to elect, 286. not created by death of person elected, before quali- fying, 670, 677. Index. 781 'Y AGA.1SQY— Continued. when election to fill, may be held, 677. original, cannot be filled by appointment, 677-8. election to fill, when void for want of notice, 679. VOTE can only be cast by a qualified elector, 392. ballot of disqualified person not a vote, 392. VOTERS constitutional rights of, beyond legislative control, 44. proof of qualification of, 152, 403. when aliens legal voters, 152. illegal, must disclose their votes, 248, 281, 377. privilege of, from arrest, 277. trespass will not lie for violation of pi-ivilege of, 277. legal, cannot be compelled to disclose their vote, 281, 366, 376. but may waive the privilege, 866, 408. WAGER upon the result of an election, void, 728, 735. WAIVER of constitutional franchise, by acceptance of oflflce, 286. WITNESSES illegal voters must disclose their vote, 248. electors are competent, 366. and petitioners, 366, 465. THE END. KF 4886 Ak B85 Author Vol Brightly, Frederick Charles 1 Tide A collection of leading Gases:opy on the law of elections in the US Datr Borrower's Name