Election Cases

Thompson, C. J.,

filed the following dissenting opinion: — I propose to present some of the many considerations which impel me to differ in judgment from the majority of the court in the conclusions just announced in the foregoing cases; not, I am aware, that it will change the determination arrived at, or amend what I think wrong, so far as these cases are concerned; but as they result in that which concerns the people more than anything which has hitherto emanated from this court, and as the opinion delivered discusses mainly the questions involved with a view to support the conclusions arrived at, I think it proper the people should hear something more of the other side. I propose only to present some of the reasons which impel me to express my difference of opinion with that of the majority. To give all which I regard as cogent would require labor that I have neither the time nor strength to perform.

At the annual election of 1868, the above named persons were candidates for the respective offices mentioned, and they, together with the mayor running upon the same ticket, were returned as duly elected by the return judges, the majorities ranging from 1838 for the mayor, 1275 for district attorney, and down as low as 200, and some odd for the receiver of taxes. These majorities were the result of the judgment of over 2500 sworn officers of all parties in politics. Certificates of election were delivered to these several officers, including the mayor, and, with the exception of the prothonotary of the Common Pleas, all entered upon the performance of their official duties. But a contest of these elections was gotten up very soon thereafter, and that has been pending ever since. The duties have been performed by the city officers, without compensation, for a year and a quarter, their fees having been impounded in the hands of receivers. All the doings of this army of judges, certifying under oath to the action of the people at that election, have been reversed, set aside and annulled by the decision of a divided court below, and affirmed by a divided court here. '

The worst feature of the times, so far at least as this city is concerned, is, that elections by the people determine nothing. The election day but inaugurates a contest to set aside what has been done on that day, and the contest is carried on under the management of able lawyers, assisted by skilful manipulators, and the voice of the people has less chance, in my opinion, of being heard in the result, than it would in even an exaggeration of the disorders at the most disorderly of the polls. If every county in the Commonwealth were to emulate Philadelphia, no election would be decided within a year after it had taken place, and courts and lawyers would be constantly engaged in semi-political contests the year round. That elections may be contested under the election laws admits of no doubt; but to aid in facilitating such contests by the extension of the law beyond its letter, is what was not intended by the legislature, is not according to the settled rules of construction of this court, and is forbidden by statute. That has, in my judgment, been done in these cases, as will, I think, be shown in the sequel of this opinion.

That the rule is as stated, I cite the Act of Assembly of the 21st of March 1806, which provides that “ in all cases where a remedy is provided, or duty enjoined, or anything directed to be done, by any Act or Acts of Assembly of this Commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such eases, further than shall be necessary for carrying such acts into effect.”

A multitude of decisions recognise the rule of this statute as applicable to both civil and criminal cases. No lawyer or judge would for a moment think of disregarding it. That it is applicable to election contests The Commonwealth v. Garrigues, 4 Casey 9, settles. This court in that case said, — “ When a statute prescribes a mode of inquiring into and determining the regularity and legality of a municipal election * * * the remedy provided by the statute must be followed, to the exclusion of the common law mode of redress.” I will quote from another case, of the hundreds on the same subject in our books, to establish the rule. In Monongahela Navigation Co. v. Blair, 8 Harris 71, Black, C. J., delivering the opiiiion of the court, said, “ Where a new and extraordinary remedy, out of the course of the common law, is given by statute, the party, if he adopt it at all, must pursue it to the letter.” To the same effect are the following citations: 4 S. & R. 135; 2 Jones 350; 3 S. & R. 295; 3 Penna. R. 65; 7 W. & S. 362; 7 Watts 517; 6 Casey 417; 1 Jones 298, &c. I might multiply authorities ad infinitum to the same effect.

Every provision fbr contesting elections is directed by statute. None of the proceedings are in the course of the common law. Elections by the people were unknown to it. It has no machinery adapted to such issues. The process is all ordered by Acts of Assembly. They provide for the filing of the petition complaining of an undue election or false return, as the case may be; prescribe the time within which it is to be filed, within how many days, by how many voters to be signed, how to be sworn to, and that the court shall fix a time for the hearing. These are statutory provisions, and the proceedings must follow them to the letter, say the Act of 1806 and the decisions referred to.

If it can be shown that the statute has not been followed in essential particulars in these proceedings in the courts below, how are they to be affirmed without disregarding the mandate of the Act of 1806, and the whole current of authorities existing upon it ? To disregard these is to set the one aside and overrule the others. That they have been disregarded in the court below, I think I will show.

The first of these cases to be noticed is that of the district attorney, Mr. Sheppard. In this case, as well as in the others, four entire precincts were struck out of the count in the court below. He had a majority in all of these precincts, aggregating 1570'votes. If but the one-twentieth of these were legal, and had been counted, Mr. Sheppard would have been elected in spite of a mistake against him in the court below of thirty-six votes, and the votes counted out by an amendment, out of time, of the petitions ; — after argument — and which is not to be supported upon any ground that I can see.

Rut in this court it is said we have no means of knowing upon what the judgment of the court below was rested in deciding against the district attorney. This is a sort of demurrer to the relief sought in this case, which is very like an implied admission of error, accompanied by an effort to close our eyes “to the examination of the principles upon which it was done. If we cannot judicially examine such a position, there is nothing whatever to control a judgment which might disfranchise fifteen thousand voters, as well as fifteen hundred. The enormity of such an act might be some protection, but the principle would remain. That we cannot examine it, is the opinion of the majority. From this I earnestly dissent.

Let us for a moment see whether we cannot'reach’ the elements of the judgment pronounced through the pleadings on which it was founded. The petitions for contesting the elections in the court below complained of several matters, viz.: That there were fifty persons and upwards, not entitled to vote, in the 6th division of the Third Ward, and fifty-four votes were polled for Sheppard which were not on the commissioners’ lists; that the letter Y was not entered after the votes; that the election officers fraudulently refused to inquire as to the qualifications of voters; that they fraudulently received the votes of non-residents; and so charging, prayed “that such election, so held in such division, was false, fraudulent, undue and void, and the return thereof was false, and should be stricken from the general return, and be wholly disregarded.” The like charges and like prayers were made in regard to the 7th division of the Third Ward, and the 6th, 7th and 8th and several other divisions of the Fourth Ward. The last four returns were on these specifications entirely stricken from the general return, which resulted in a deduction of 1570 votes from the candidates declared elected by the general return.

The respondents moved in each case to quash, on account of these specifications not being within the jurisdiction and power of the court to act upon, for the causes therein set out in them. This motion was called a demurrer to the petition. If so, the judgment of the court upon it against the demurrer should bring it upon the record, where it is claimed it is not, and then we could review it; if not, it was retained as part of the record after judgment of the court to that effect, and defines the jurisdiction exercised by the court after judgment upon it. It stands by the judgment of the court, as the allegata to be sustained or met by the probata, and of course tests the judgment in the cases. It will not be doubted but there must be a complaint by petition in cases of contested elections. The letter of the law is plainly to this effect. If but a single charge existed in a complaint, the conclusive presumption would be that the judgment upon it followed the allegata and probata, as they follow each other, and thus the judgment could be tested by the former. If the allegata were beyond the jurisdiction of the court, the judgment would also be. In Gordon v. Kennedy, 2 Binn. 287, this principle was distinctly decided. The court said: “ When the plaintiff declared upon a contract consisting of several parts, and assigned, among other breaches, one which, from his own showing, could not have taken place before suit brought, the court would not intend that the damages assessed generally were given only for that matter in the count which was actionable, and would therefore reverse the judgment. The judgment being as well on the bad as on the good counts of the narr., it was a presumption of law that the bad led to the judgment as likely as did the good. The court, therefore, testing the judgment by the allegata, and not being able to discriminate on which count it was given, set it aside. If there be good and bad counts in a narr. and a general judgment, it cannot stand. This is a universal rule in all civil actions. In criminal cases, if there be a single good count in the indictment, the judgment will be sustained. The proceedings in these cases are not under the criminal law. Had they been, the court would hardly have sent them to examiners. Testing the final decree by what was in issue in the petition, the former cannot be'sustained; if the latter be illegal — and it is so if beyond the jurisdiction of the court. I ask where is the communicated authority to the courts to try a division by its character without regard to its voters ? It is not in the law.

The argument that the legal voters of a district may be disfranchised by the base conduct of the election officers, or because frauds have been committed by illegal voters, without the slightest fault of the former, is the position of the contestants. The specifications in the petitions which lead to and culminate in the relief prayed, to wit, to strike out the entire vote of the divisions mentioned, have each, I believe, been heretofore held to be insufficient for such a result. In Mann v. Cassidy, 1 Brewster 11, allowing unassessed voters to cast their votes without the statutory proof was held not to be sufficient. So omitting to place the letter V after the name of the voter was held not sufficient: Weaver v. Given, 1 Brewster 140, and Skerrett’s Case, 2 Pars. 509. Receiving illegal votes merely, not sufficient to strike out the poll: Weaver v. Given, supra. It would be absurd to hold that refusing to hear a challenge would be sufficient. In such cases it is to be presumed the officers know the voter to be entitled to his vote when they disregard the challenge. These items constitute the volume of the force applied to strike out these four divisions, and it had the effect. I maintain that there is nothing which will justify the striking out of entire divisions but an inability to decipher the returns, or by showing that not a single legal vote was polled, or that no election was legally held. If anything short of this is to have the effect, the right of every elector is at the mercy of the election officers. Such a right is no right; is worth nothing. I make my especial dissent from any such practice or rule. It was not alleged that no legal votes were polled at these divisions. It is morally certain there were many. But all were stricken out on the character of the precincts rather than upon the votes polled. The honest were made to answer for the dishonest. This is a change in moral and legal ethics, it must be admitted! The poll might have been purged; at least the attempt ought to have been made. This was not done, and the whole were stricken out with a dash of the judicial pen, and enough votes deducted from those returned elected to elect the contestants. The court below so decided, and we judicially know it. Whether that can be done i§ a very grave question. If it may be done without review as to four divisions, it may be done in two hundred and sixty-four, leaving the balance to make the election. On no principle could it be done but upon the allegata of the petition. That, I say, ought not to have been permitted to be done. If not reformed in the court below, where it ought to have been, we ought to reverse the proceeding, because we know it was the means' whereby the elections of the people have been overborne, and that of the courts substituted, contrary to law and the principles of the government.

But I regard it as improper in the case of the city officers in another aspect. The Act of Assembly in their cases requires that the contest shall proceed on the merits. And what are the merits ? Certainly that every legal vote cast shall be counted, not thrown away. It is not a decision on the merits which casts out of the count indiscriminately sound votes, because there may be some unsound among them. A party who contests an election undertakes to prove the unsound votes which are to change the result. If he cannot do it, he loses his case for want of proof, as many a man does. The returns of the election officers stand for proof that the votes counted were properly received, and the contestant enters the lists and proffers to make good his challenge of the election, and he is bound to show that on the merits the election was with him — not with him on any rule which throws out his adversary’s votes, enough at'a time to produce the result. Does any man in his sober senses believe that there were no legal votes cast in these four precincts, thrown out bodily? If not, why ought they not to be counted ? If counted they would settle the election on its merits. The act requires it to be so settled, and in no other way. The specification of illegal votes charged as,1'given in those precincts was not one-tenth of those stricken out in favor of the contestants. There were 1570 votes returned as majorities for each of the respondents. They were every one thrown out, and by this means, and this alone, the contestants have succeeded. I aver that on the face of the Act of July 2d 1839, which reaches the case of the prothonotary, and the Act of 1854, which reaches the city ofScers, the allegata not touching the merits as the law requires, was a bad count in the contestants’ bill or narr., and a general judgment thereon was erroneous. Nothing, I hold, can justify the exclusion of the count, when properly returned, but the impossibility to understand it, and that has often been held to be the rule in the court below: Mann v. Cassidy, 1 Brewster 11; Weaver v. Given, Id. 140. Nothing of this kind was alleged to be the case in the specification on which the returns of those divisions were thrown out. I think, without such an allegation, the judgment to exclude an entire return on any other ground was wrong. I would reverse for this also, and send the contestants back, to show that of the legal votes polled they received a majority.

I fear this power. It is not for this occasion I protest, but for all time. Better far that some errors should occur at the polls, nay, many, than that the free right of electors should be held for nought. I am of opinion that nothing in the specifications justified the throwing out of entire returns, and that there is enough on the record to enable us to reverse this part of the proceedings and judgment, and that we are bound to do so.

Mr. Sheppard’s case was decided in the Quarter Sessions. That court did not hear the witnesses. They sent it to examiners, who took the testimony at other places than the court-room. The Act of Assembly requires that, in contested election cases in the Quarter Sessions, “the court shall appoint a suitable time for hearing such complaint, notice of which shall be given to the person returned, at least ten days before such hearing.”

It will not do to say that the court has power to make rules— to authorize others to hear and report to it. The Act of Assembly requires the court to hear, not a part, but the whole case. And there is great propriety in this. The manner of testifying is, in every tribunal of modern times, a great means of detecting falsehood, or of becoming satisfied of the truth of the witness. But the partial or false witness’s testimony reads as well, and often better, than that of the truthful one. The legislature trusted the courts in this regard, not to throw aside any of the means of truth, but to use them all, and then decide. That the hearing of the case is to be in the presence of the court, the Act of Assembly is explicit, and reasoning to prove it is a work of supererogation. We were told, in the argument, that Judge King, a most eminent and experienced judge, appointed an examiner in an election contest in the Quarter Sessions, but struck the appointment off as against the Act of Assembly. Whether this be reliable I know not, but that this able and accurate judge would do so is most probable. He could not overlook the importance of hearing the witnesses, and the greater importance of complying strictly with the Act of Assembly.

It is no answer to say that the court has power to make rules. It has, but not for cases where the law requires its personal supervision. If it can appoint examiners it might appoint a master, as is done in equity, and neither hear the testimony nor read it. There is not a shade of difference so far as the power is concerned. I would send this case back to the court for a rehearing on this ground. If this overworked tribunal has not time to do this duty according to law, and the other business required to be done by it, increase its force. No statute was ever set aside because the court had not time to execute it. If the court had the time there is not even an excuse for not hearing the witnesses, much less a defence for the omission.

But there is still a greater error in the Sheppard case. After it had been heard and argued, an amendment was allowed to the contestants, by which the return in the 16th division of the Twentieth Ward was changed so that there were deducted from Mr. Sheppard forty votes. That an amendment might have been made at a proper time I need not deny; but to make it after the testimony was closed, and the argument also, was an excessive exercise of discretion, in my judgment, that would require the reversal of the final decree, if nothing else did. It was a trial without the specification of material matter. Nobody has ever yet asserted that no specification was required. This is certainly what the law does require, else why this provision, that the facts set forth in the complaint “ are true to the best of the affiant’s knowledge and belief?” This is not a common law proceeding, and the statute is violated in not setting forth the Tacts contained in the amendment in the original petition, if material. But how would it stand at -common law? In Gale v. Babcock, 4 W. C. C. R. 199, an amendment of a declaration in ejectment, by stating a demise under a new title, was not allowed. Amendment of the declaration offered after the jury was sworn, introducing a new cause of action, not allowed: Postmaster-General v. Ridgway, Gilpin 135. Now, was this not a new cause of complaint ? It was not in the original petition on which the contest proceeded. Where was it ? In the breasts of the applicants, if anywhere. Was this the notice the law requires ? Who will assert this? It was not only new, but was made decisive of the case, for we cannot presume that the thirty-six votes not counted would have been uncounted by the court. This mistake, and the interjection of this new cause of action, ousted Mr. Sheppard. This is morally certain. But even at common law an amendment introducing new matter is never allowed without allowing an imparlance: Thompson v. Musser, 1 Dallas 458. Inasmuch as it is denied that we can look into the judgment, and at the elements it is composed of, how do we know but this new matter ruled the case ? It did in very fact, for the omission to count the thirty-six votes overlooked, gave Mr. Sheppard the majority. Were we to reverse for this, to me, manifest error of amendment, Mr. Sheppard is elected, and, I think, while notice is to be regarded as important to justice, we ought to reverse. The amendment was not sus- ■ tained by any statute of amendment, nor of common law, and it is against the provisions of the statute under which the proceedings were conducted, as I think I have shown.

Now, as to Mr. Fletcher: The same objection exists to striking out the entire -returns in the four divisions, one in the Third Ward and three in the Fourth, already noticed, and which need not be repeated in this or the succeeding cases ; but it overthrew all the returns. But there is an objection fatal to the judgment in that case. The court lost jurisdiction by lapse of time. I admit that the objection has been well defended in the opinion of the majority, but not successfully. Prothonotaries, as I have already said, are constitutional officers, and hold their offices for three years, if they shall so long behave themselves well, and until their successors are duly qualified. For this very reason the Acts of Assembly providing for a contest of these elections, expressly direct that it must be heard and determined at the next term after the election shall have been held. This contest has been going on for over a year, and there is not a particle of reason why it might not be kept going until the next election for prothonotary, and then, if a new contest were inaugurated, the old officer might hold on until that should be determined, let the time be long or short. The constitution limits his commission to three years, subject to the contingency of holding over until his successor is qualified, and that contingency is limited by the Act of Assembly to three months. To -disregard the time within which the case should be determined is a determination that there is no limitation. Yet the Act of Assembly plainly declares there is. The apology for disregarding this position is that it is directory. But the Act of 1806 expressly declares that “ when anything is directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said act shall be strictly pursued.” This is plain, and settles the question. There is no difficulty in executing the directions of the act in this case. The Act of 1806 is the rule in every statutory proceeding or statutory remedy. There are very many cases in which the lapse of time destroys the remedy. An appeal from an award of arbitrators, begun to be taken, but not finished in time, is void. An officer’s commission expires, a judge’s for instance, in the middle of a trial, the unfinished portion goes for nothing. Instances will occur to every one in which the lapse of time deprives parties of remedies which they might have had by diligence.

But it was argued, peradventure the contest may continue beyond the next term. What then ? The legislature must answer that, not the courts. But that a court could not, in three months, try any such contest, so far as to be ready for pronouncing its decision within the next term, is not to be credited. The mandate to hear and determine must be obeyed if all other business be set aside. In substance, the language of the legislature to the courts is what we find in an ordinary subpoena to a witness —that, “laying aside all business and excuses,” you hear the case — nay, more — that you hear and determine it at the next term. When, therefore, the three months expires without a determination of the contest, the proceedings fall as effectually as if the court itself had ceased to exist. This is not to be denied without disregarding the very words of the act, and this no court can do, and do right. This case was before the Common Pleas more than four whole terms before it was decided. It might have remained the same number of years with as much respect to the statute. All that was done after the next term after the inauguration of the contest, in my opinion, was coram non judice, and for this the decree of the court should be set aside in this case, if there were no other ground.

The last matter I propose to notice is the form of the affidavits appended to the petitions for contesting the city cases. They are sworn to “ according to the best of the affiant’s knowledge and belief.” But the Act of Assembly says “ That at least two of the complainants shall take and subscribe an oath or affirmation that the facts set forth in such complaints are true.” The departure from the directions off the statute — nay, its mandate, in these affidavits — was, in my judgment, so material as to require a dismissal of all of them, and that it should be so held by this court now. The dissenting opinion of Judge Ludlow proved this, if language can prove anything. It stands unanswered and unshaken by anything uttered below or here.

The cases cited to support the sufficiency of these affidavits are mere analogies, and are supposed to be applicable, because in support of a remedial statute. But the cases cited to sustain the objection are parallels. By the Arbitration Act of the 20th March 1810, in order to obtain an appeal from an award, it was provided that the appellant should make oath or affirmation that the appeal was not for the purpose of delay, “but because he firmly believes injustice has been doneJ’ In Thompson v. White, 4 S. & R. 135, it was held by the coi^t, in an opinion by Tilghman, C.. J., that the omission of the word “ firmly” from the affidavit vitiated the appeal, and it was stricken off. The same thing was held afterwards in Proper v. Luce, 3 Penna. R. 65, in an opinion by Gibson, C. J., in which he declared that the “ defect was fatal.” I have known many instances of appeals quashed for the same reason, and, I presume, the same is within the experience of other lawyers and judges.

The provision for an appeal was eminently remedial; it conserved the constitutional right of trial by jury; without an opportunity for which the Arbitration Act itself would have been unconstitutional, the provision on that subject in the bill of rights being “ That trial by jury shall be as heretofore, and the right thereof remain inviolate.” Yet even this great right was held to be preserved only by exact performance of that which the legislature had directed to be done. The appellant was required to swear that he firmly believed injustice had been done him in the award from which he appealed. No honest man would swear to anything he did not firmly believe, and all are presumed honest until the contrary is made to appear, and yet this word ■was held necessary, and is so to this day, more in obedience to the canons of construction I have referred to and the Act of 1806, than because of any inherent good reason. Two of the most eminent jurists that ever dispensed justice in this Commonwealth, held, in effect, that the remedial nature of the provision, in order to obtain an appeal, did not dispense with the requisites of the statute on which it was to be had.

I undertake to say, that not a syllable of tfie apology offered for the departure from the requirements of the statute as to the affidavits in these contested election cases, did not apply much more strongly to support the affidavits in the appeals mentioned. In neither is there a form of affidavit, or w'hat it shall contain; it is simply descriptive. Nothing is more sacredly regarded in a country possessing free laws and free government than trial by jury; any provision to arrive at that is remedial, yet this result was set aside to carry out the intention of the legislature as to the mode in which it was to be had. Grant, for the sake of argument, that-the provision for contesting elections is remedial, the cases cited abundantly prove that the remedy of the statute is only to be secured by complying with the terms which the legislature has seen proper to impose on the right.

But it is a great mistake to suppose that the two forms of affidavit are the equivalent of each other. They are not. There are thousands who daily make affidavits according to the best of their knowledge and belief, who really know nothing about the matter themselves. Everybody knows this. The election returns, made upon oath, should not be questioned but upon affidavits showing the fact of their untruthfulness, and hence it required in the city, care that the oath charging such facts should be positive. It is said that this could not be possible. Why not ? What is to prevent the affiant from swearing to the existence of the facts, if he knows them; and if he does not know the facts he charges, what right has he to swear at all ? If facts enough for a primd facie case to overturn an election cannot be presented, as the law requires, then the judgment of the election officers remains conclusive and unimpeached. There is “ample scope and verge enough” for obtaining affidavits, positive in their terms, in contests about city elections. Twenty days are allowed. Fifty or five hundred persons may become complainants, and verify by oath, facts to sustain the contest. The number is not limited to two, and thus from every precinct charges on oath may come. But I have no concern with supposed inconveniences in the matter. Ita lex saripta est is the judicial motto. It was this that led the eminent jurists alluded to to hold, as have done all their successors, that the word “ firmly” was essential to perfect an appeal. If we get away from it, we assume legislative as well as judicial functions. Perjury could not be assigned on an oath prescribed to be taken, but not taken, but on another taken — not prescribed. This is so obvious, I will not delay to prove it. The oaths taken in these cases are not the oaths required to be taken by the statute, but are very different. The petitions are not sustained by oaths known to the law of such cases. There is a recognised and well settled distinction between a positive affidavit and one founded merely on„knowledge and belief. It will be sufficient to instance the case of affidavits to hold to bail. In point of form, the affidavit should be direct and positive, and therefore, if it be merely as the party making it believes, it will not in general be sufficient: 1 Tidd’s Pr. 182, 4th Am. Ed., and eases in the notes. In 2 Miles 155, Young v. Corder, it was held, in the District Court, that “ knowledge and belief” was not sufficient to hold to bail. So in Bland v. Drake, 1 Chitty’s R. 165; 18 E. C. L. R. 100. I would hold all those petitions as insufficient for want of the affidavits required by the statute, and would reverse all the proceedings under them on the authority of the cases requiring the directions of the act, which provides for contesting the elections, to be pursued.

There are other matters in the opinion of the majority which I am not contesting. I know nothing about the authority of the recorder to administer oaths. The defects in the oaths themselves are over and above all this, and I have pointed them out. I do not question that these cases are here on certiorari, and only the record is before us, but, in my opinion, it is much more largely before us, than the majority regard it to be. It is sufficiently before us, in my judgment, to meet every question discussed, and to enable us to determine them. And we should, in this great appeal from the people, astutely scan everything which militates at all against their right to settle their choice of officers in their own way. I would reverse all the decisions in the court below against the candidates returned duly elected by the people.

Shaeswood, J., concurred with Thompson, C. J.