Commonwealth ex rel. Attorney-General v. Walter

Mr. Justice Paxson

delivered the opinion of the court, November 24th 1876.

This • was a writ of quo Avarranto issued at the relation of the attorney-general against the defendant, requiring him to show by Avhat Avarrant he claims to have, use, exercise and enjoy the office of high sheriff of Butler county. The information charges that the said defendant Avas a candidate for said office in the year 1875 ; that he Avas returned as elected at the general election held in November of that year; that while the said defendant was a candidate for said office, he “ was Avilfully and corruptly guilty of bribery, fraud and the Avilful violation of the election Iuavs of this Commonwealth.” The information then proceeds to charge specific acts of violation of the election laws, and the further offence of perjury in taking the oath of office. An answer was filed by the defendant, in Avhich the charges set forth in the information are specifically denied. All this took place upon a rule to shoAY cause Avhy the writ of quo Avarranto should not go out. The learned judge of the court beloAV Avas of opinion that the case Avas not one in which the Avrit should issue, and discharged the rule, yet on the request of the counsel for the Commonwealth directed the Avrit to be issued pro forma, and immediately quashed it.

It is proper to remark as a matter of practice, that when the Commonwealth through her attorney-general applies for a writ of quo warranto, she is entitled to it without a previous rule to show cause. It is not to be presumed that the law officer of the Commonwealth would apply for this high prerogative writ for personal or private ends. He is supposed to be impartial, and to seek only the vindication of the rights of the state. It is not so in the case of a private relator, who is usually put to his rule to show cause. It might not be so where the attorney-general merely allows private counsel to use his name, as is sometimes done to procure the writ. But when the attorney-general or his recognised deputy assumes the responsibility the writ should issue in the first instance.

Under the Act of June 14th 1836, the writ of quo warranto is the appropriate remedy where any person shall usurp, intrude into or unlawfully hold or exercise any county or township office within the respective county; or where any person, duly elected to any such office, shall have done, suffered or omitted to do any act, matter or thing whereby a forfeiture of his office shall be created. It is not pretended that we have any statute which declares a forfeiture of either of the offices aforesaid by reason of any of the acts charged in the information. But the 9th section of the 8th article of the Constitution provides that “ any person who shall, while a candidate for office, be guilty of bribery, fraud or wilful violation of any election law, shall be for ever disqualified from holding any office of trust or profit in this Commonwealth; and any person convicted of wilful violation of the election laws shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely for a term of four years.” The object of this provision in our fundamental law is manifest. The frequency and extent of election frauds were beginning to awaken serious apprehension for the future unless promptly checked. A fraud upon the ballot is a crime against the nation. Hence it was that the framers of the Constitution sought to arrest the evil by embodying in the fundamental law the provision referred to. It is our duty to give it such a construction as will carry out the intent apparent on its face, and the object which the people had in adopting it.

It will be seen that by the express and clear language of the section, any person who shall while a candidate for office, be guilty of any of the prohibited acts, is ipso facto for ever thereafter disqualified from holding any office of trust or profit in the Commonwealth. It follows that if this defendant while a candidate for the office of high sheriff of Butler county, was guilty of “ bribery, fraud, or a wilful violation of any election law,” he is for ever disqualified from holding his present office, or any other of trust or profit.

We have here an allegation on the part of the Commonwealth of the existence of certain facts which, if true, amount to a disqualification. Whether the defendant has committed the alleged acts would seem to be a proper subject of inquiry upon a quo warranto. But it was urged on behalf of the defendant, that it was not the doing of the prohihited acts which disqualified, but the being guilty of them; that such guilt could only be legally ascertained by a criminal prosecution in the Quarter Sessions where the defendant would be tried by a jury of his peers. This was substantially the ground upon which the court below quashed the writ.

We are to presume that the framers of the Constitution used the word “ guilty ” in its ordinary or popular signification. That they had in view the distinction between being guilty of an offence, and being convicted of an offence is clear, from their employing both words in the section referred to. In the concluding j>aragraph thereof they say “ any person convicted of wilful violation of the election laws shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely, for a term of four years.” The word “ guilty ” is defined by our best lexicographers to mean “ having guilt; justly chargeable Avith a crime ; not innocent; criminal.” Hence Ave say that a man is guilty of an offence when he has committed such offence. We say he has been convicted of an offence Avhen he has been found guilty by the verdict of a jury. We need not elaborate so plain a proposition. But it Avas strongly urged on behalf of the defendant that great injustice Avould be done him if the question of his guilt Avas not first settled in the Quarter Sessions; that he is really charged Avith crime, and of.such a nature as to blacken his reputation. We do not see the hardship. There are but two roads. The one leads to the penitentiary in case of conAdction, the other merely to a disqualification from holding office. If we send him upon the latter path, surely he has no just cause of complaint. It is his right to have the issues of fact raised upon the quo Avarranto tried by a jury. He has therefore a trial by his peers in the latter proceeding. An adverse verdict deprives him of neither life, liberty nor property. It merely prevents his holding an office which he would have no right to hold by reason of disqualifying acts committed by himself. The effect of requiring a previous conviction in the Quarter Sessions would be to give the defendant two jury trials; for such conviction could not deprive him of his right to a jury trial in the quo warranto. So that by the time the Commonwealth had folloAved the defendant to the end of his sinuous path the contest might become of little real importance, and the victory, if obtained, a barren one. The construction claimed for this section of the Constitution, if adopted, would render the said section of little practical value.

We do not see any sufficient reason Avhy the questions of fact raised in this proceeding should not be settled as such issues are usually determined in cases of quo warranto.

The order of the court beloAv quashing the writ of quo Avarranto is reversed and set aside, and a procedendo aAA*arded.