Commonwealth ex rel. Parker v. Emminger , 74 Pa. 479 ( 1871 )

The opinion of the court was delivered, November 16th 1871, by

Thompson, C. J. —

This is an application for a peremptory mandamus to the respondent forthwith to proceed to cast up and sign duplicate returns of the election and notice of election of state senator in the Nineteenth Senatorial district of this Commonwealth, composed of the counties of Cumberland and Franklin, at the election on the second Tuesday of October last, according to the requirements of the 82d, 83d and 84th sections of the Act of Assembly of the 2d of July 1839, which it is charged in the suggestion filed, and has been made to appear; he has hitherto refused to do.

The answer of the respondent is before us, and to this the relators have demurred.

The respondent sets forth in his answer that he, the return judge of the county of Cumberland, met the return judge of the county of Eranklin, H. Gr. Skiles, at the prothonotary’s office at Carlisle, in the county of Cumberland, on the 17th day of October 1871, the time and place fixed for the meeting of the return judges in and for the said district, and did cast up and ascertain from the county returns that it appeared that in the county of Cumberland for senator, “ Henry K. Peffer had 4114 votes, and that James M. Weakley had 4268 votes; in the county of Franklin J. M. Wheatley had 4605 votes, and that Henry K. Peffer had 3951 votes, and that it appearing that fraud and bribery have been made use of in obtaining said votes to so large an extent as to vitiate the said election, or change the result, we decline to certify to the election of either of said candidates, and refer the subject to the Senate, which under the Constitution is made the judge of the qualification of its own members.” This both judgesi signed, and it was forwarded to the secretary of the Commonwealth. Afterwards it appears by the answer of respondent that Henderson Gr. Skiles, the return judge from Franklin, county, on the 20th day of October, signed and forwarded to the secretary of the Commonwealth, and to the said James M. Weakley, the return and notice of election required by the Act of. Assembly. In this the respondent did not join.

It is apparent from the certificate signed by the respondent, as set forth above, that from the county returns James M. Weakley received in the senatorial district a majority of 803 for senator, and was entitled to the certificate mentioned in the Act of Assembly, and notice of his election, viz., the duplicate returns of the fact, one to be sent to the secretary of the Commonwealth, through the post-office, one to be deposited in the prothonotary’s office of the county of Cumberland, and a notice of his election to be sent to him. The returns of the counties presented these facts, and this is admitted in the certificate above mentioned, and set forth by the respondent as a portion of his answer.

The answer or pleas of the respondent against being required by a peremptory mandamus to certify further, as one of the return judges of the Nineteenth senatorial district, are, 1. Because he has already sufficiently certified according to the requirements of the Act of Assembly in the certificate already mentioned.

2. Because, in his capacity as one of the county return judges, he became aware of certain gross irregularties in the mode of conducting the election in several election districts in Cumberland county, which he names and sets forth, and also for want of proper returns by township or district election officers, required to be filed in the prothonotary’s office. He also charges want of care and haste in the county return judges of Cumberland county, in making out the county return for senator as well as other returns.

3. Because, from facts within his own knowledge and other sources, which he alleges can be established by proof, “ bribery and corruption were resorted to in order to secure the election of the said James M. Weakley,” which facts he states somewhat at large, and alleges that he is prepared to prove them. From all this, he submits that he ought not to be required to make or sign other or further certificates or returns of election than those already signed by him.

We have not set out the pleas or answer of the respondent in full, but the substance of the same, and we are asked to say whether they are sufficient in law. That they are not, we do not for a moment hesitate to say.

(1.) As to the, first plea. The certificate therein set forth is in no respect according to the Act of Assembly. The act says that when the return judges shall have met, “ they cast up the several county returns, and make duplicate returns of all the votes given for such offices in said district (Senate, Congress or Assemblymen), and of the name of the person elected,” and dispose of the duplicates when so made out as already stated; and further, the act provides that “it shall be the duty of the return judges in every case to transmit to each of the persons elected to serve in Congress, in the Senate or House of Representatives, a certificate of his election within five days after the day of making up such return.”

- In the certificate referred to, there is no counting up of the returns and certificate of the person elected senator, nor any pretence of notice to him of his election. On the contrary, this was refused, because, the judges say, it “ appears that bribery and fraud” had b.een made use of to secure the election of the candidate having by the county returns a majority of votes in the district. So far from this being the certificate required by law, it was a refusal to certify. The returns were plain and intelligible, at least nothing to the contrary is alleged, and the only duty of the return judges was to cast them up and certify for whom the majority had been given. The county returns were, as to them in the performance of this duty, conclusive. They could not be disregarded in the least, excepting perhaps for plain clerical errors, and could not be set aside. They were to be the evidence upon which the return judges should alone act. The judges’ certificate and returns were to be the primá. facie commission of the senator, and by law it would stand until overruled by regular action of the Senate, in judging of the qualification, under the Constitution, of the member holding it. To hold that the certificate in question was a compliance with the law in this respect, would be to maintain the possibility of a senator being received under a commission certified to have been stained by bribery and fraud. This would be simply preposterous. I shall notice, further on, the groundless assumption that the return judges had jurisdiction of any such question as the existence of alleged fraud in the election. We overrule this answer or plea also.

(2.) As to irregularities, and the want of compliance with the law on part of the election officers of the township or district elections, and the alleged haste and want of care on part of the return judges of the county in convention, all this lies back of the returns, which we have just said were conclusive on the return judges of the district. From these returns their duty was to cast up and certify their return. This plainly-expressed duty clearly excluded the exercise of any other duty inconsistent with it. Hxpressio unius est exelusio alterius. We have never heard it contended that the authority given to the district return judges to perform their plain duty, carried with it a general supervisory power to look into all that preceded the county returns. There is no such thing in the law, and it would be a sad thing for our institutions if it were so. This plea or answer is untenable, and is overruled also.

(3.) In this plea the respondent alleges bribery and fraud in the election as an excuse for not -certifying as he was required by law to do. We hope this is not true. But even if it were, he was not the authority to examine into it or act upon it. Nor are we, upon whom the answer seeks to cast the responsibility of investigating it. This we have distinctly said in Hulseman v. Rems, 5 Wright 396, and if it had never been said, we would say it now. It is for the Senate to investigate charges of this nature. The Constitution expressly says so, and to that body it is proper, and the only place it is proper, legally to make such charges. If they prove true, that body will do its duty doubtless, and expel any member from its hall who is there by such means. The remedy for all this is by contesting the election of the party charged. The law is ample for this, and this is the constitutional mode of redressing and punishing such a wro.ng. The respondent could hardly have contemplated the consequences of the precedent he would set if sustained in this plea, or we think he would not claim it as a protection. There would be few returns of election of senators, congressmen or representatives ever made, if such a thing were possible to be maintained. There would always be enough, I regret to believe, to suggest fraud in the election, and thereby prevent any certificate of elections being given. The consequence of this would be that our legislative bodies would never organize. A few with certificates might keep all others out, and thus prevent any organization sufficient to try the right of those to whom certificates of election ought to have been given, but have been denied. Let this be the rule, and our representative system would utterly fail of its purpose, and anarchy and confusion would inevitably result. I must do the learned and able counsel for the respondent the justice to say, that they disclaimed all such power in the return judges of the district. They planted themselves alone on the ground that the respondent had already substantially complied with the Act of Assembly in the certificate signed by him. This we have shown, we think, was a mistake; but we need not recur to it again. This plea or answer is also overruled. Our unhesitating conclusion is that the respondent has presented nothing whatever to shield him from a peremptory mandamus, which it will be our duty to award in this case.

No question was made as to the power of this court to take jurisdiction of this case; that is settled by many decisions: 8 Casey 218; 10 Id. 496; 1 Wright 237-277; 3 P. F. Smith 9-71, and many other cases.

And now, to wit, November 16th 1871. This cause having been argued by counsel and considered by the court, it is ordered and adjudged that judgment be entered upon the demurrer for the Commonwealth, and that you the defendant, John Emminger, be and you are hereby peremptorily commanded forthwith, and jointly with Henderson G. Skiles, the return judge of Franklin county, to cast up and make out duplicate returns, according to law, of all the votes given for the office of senator in the senatorial district of this Commonwealth, No. 19, composed of the counties of Cumberland and Franklin, and of the name of the person elected senator in the same, as shown by the said county returns of the general election held as aforesaid on the second Tuesday of October last past, and transmit the same, as required by the eighty-second section of the Act of Assembly of the 2d of July, A. d. 1839, to wit, one of said returns to the secretary of the Commonwealth and to deposit one in the office of the prothonotary of the county of Cumberland, and make out and transmit to the person who shall appear by easting up said returns of said district to be elected senator at said election, a certificate notifying him of his said election; and that you the respondent pay the costs of suit.