Hulseman & Brinkworth v. Rems & Siner , 1861 Pa. LEXIS 346 ( 1861 )

The opinion of the court was delivered,

by Lowrie, C. J.

The law providing for the voting of soldiers, who are away from home in actual service, so clearly covers, by its terms, the case of municipal elections, which are held at the same time as the general election, that we are unable to find any argument that is at all satisfactory for excepting the late municipal election of Philadelphia out of its operation. We must, therefore, declare that the soldiers in camp had a right to vote for their proper municipal officers at home, and to have their votes counted on the second Tuesday of November, if they were properly certified and returned. It was therefore the duty of the judges of the Nineteenth Ward to meet on the second Tuesday of' November, so as to include in their enumeration such returns of the votes of the soldiers as should be properly certified to them; and this, whether they had a regular adjournment for that day or not.

They did meet on that day, and include in their enumeration the votes of the soldiers, issued certificates of election to those candidates who, by the votes thus included, appeared to have been elected: and now we are asked to declare those certificates illegal, fraudulent, and void, and to enjoin the defendants from using them, and to require them to be delivered up and can-celled.

Possibly some of the camp returns, or pretended returns, had obtained so bad a reputation by the public examination, which had been had of them before the Court of Common Picas, that judges, who were carefully honest, would have discovered very clear reasons for rejecting them. But even if we have authority for examining this matter, we have no convincing proof that the return judges acted fraudulently in receiving those returns. They seem to have had formal certificates of them, and they may have committed a mistake, rather than a fraud, in not duly inquiring of the channel through which those certificates were received, and may very honestly have concluded that they have no authority to inquire into the authenticity of papers which came into their hands in proper form. We find fraud enough in these camp returns without taking suspicions for evidence or proof of it, and without condemning those against whom the evidence is incomplete.

It is alleged that on the second Tuesday of November some of the return judges refused to meet, and that those who did meet, met at an unusual place to count the soldiers’ votes, and to issue the certificates: but the affidavits of the defendants seem to us sufficiently to account for this, by showing that the duties of the return judges were so interfered with, by a disorderly crowd, that they could not be performed at the usual place.

We have, therefore, no ground left for our interference, but the single one that the return judges included, in their enumeration, returns purporting to be from three companies of volunteers, which were mere forgeries. We admit that, in the evidence before us, it appears clear to us all that those returns are forgeries, and that it was only by their inclusion in the enumeration that the defendants have obtained certificates of their election. We admit, therefore, that the evidence proves that these certificates of the election of the defendants are founded in manifest fraud, the forgery of some unknown person, but we do not find that the defendants had any hand in it, and we trust they had not.

Can we, on this account, interfere and declare the certificates void? We think not. According to our laws, the election has passed completely through all its forms, the result has been in due form declared and certified, and the defendants have received their certificates of election, and are entitled to their seats as members of the common council. The title-papers of their offices are complete, and have the signatures of the proper officers of the law; and if they are vitiated by any mistake or fraud in the process that has produced them, this raises a case to he tried by the forms of “ a contested election,” before the tribunal appointed by law to try such questions, and not by the ordinary forms of legal or equitable process before the usual judicial tribunals. It is part of the process of political organization, and not a question of private rights, and therefore the constitution does not require that the courts shall determine its validity.

The law has appointed a special tribunal to try just such a question as this, and we can have no right to step in between the case and that tribunal, and alter the return of the election judges, and annul their certificates. Plain as the fraud appears, and earnestly as we condemn it as citizens, it is no part of our functions as a court to sit in judgment on it. The Common Council is the proper tribunal to try cases of contested elections relative to its own members, and there the fraud and forgery must necessarily be tried and decided with final effect. They are appointed by law to try the whole case, and they alone can try it. We decided this last year at Philadelphia, in the case of The Commonwealth v. Baxter, 11 Casey 264, a case from Bradford county, where a commissioner of highways had received a regular certificate of election, and where we decided that it could be avoided only by a regular process of a contested election case. Perhaps that case may be found worthy of examination.

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, hut because we cannot frustrate it by any decree of ours without an act of usurpation. Another tribunal is appointed to administer the remedy, and we believe that, on proper application, it will 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.

It is suggested that there is danger, if we do not interfere, that this fraud will be persisted in by the defendants, and adopted by their co-partisans, and will be resisted by riotous violence. Possibly this may be so; for, when public forms of proceeding are tainted with known fraud, public or common sense cannot help regarding the sanction of them as a mere exercise of force without right, and then riotous resistance becomes probable w'here the public take great interest in the matter; as violence is very apt to beget violence. God save our country from this additional degradation. The violence of partisan strife has already humiliated us much. Let not fraud and force be met by riot now and here. Rouse by violence the passions of men, and the contested election case will become a trial of the courage of opposing parties, and not of the truth of the case. Silence the passions, and let truth have a chance to present her claims to quiet reason. Let stillness or the quiet force of relevant testimony, rule the time that intervenes between now and the decision of the contested election, and the decision will be right. No man of sense, much less of conscience, will dare to stand in broad open day before high Heaven, and before the honest conscience of the country, and sanction this forgery, if the evidence be then as it now is. None such will desire to do it. But if his judgment be beclouded by the passions of opposing popular parties, and he be forced to assert his courage rather than the truth, then the rights of justice will be insecure.

It is a sore affliction to us to witness these disorders of our country. We cannot avoid reflecting, whither do they tend; and ye wish that all others would think of this, that we may find a proper political remedy. Our selfish assertion of our rights, and neglect in studying our duties, may have much to do with them. Our elections have become so intensely selfish, that opposing parties treat each other as enemies, and thus many on each side will come to think that tricks and lies, fraud, forgery and perjury are legitimate strategy, and even honest men are led to claim the fruits of it, and candidates are very apt to be selected, not because of their honesty or their competence for office, but of their capacity to lead in an election combat, and of their readiness to reward their assistants at the expense of the public. When elections are conducted in any large degree on such principles, they become a form of civil war, repeated annually by appointment of law, and tending to substitute anarchy, for law. For a while it is a question which party shall assemble the most voters, honestly or dishonestly, by fair argument or by lying charlatanism; but soon it becomes a question which party can force the election returns to count the highest numbers, and then forgery and perjury lend their assistance. This is a frightful stand-point to occupy for a look into the future. We shall not attempt to report its revelations.

Injunction refused.