Auchenbach v. Seivert

• Decision Date: 23 April 1888
• Docket Number: 17
• Parties: DANIEL AUCHENBACH v. GEO. SEIBERT ET AL
• Court: Pennsylvania Supreme Court

13 A. 558

120 Pa. 159

DANIEL AUCHENBACH v. GEO. SEIBERT ET AL

No. 17

Supreme Court of Pennsylvania

April 23, 1888

Argued April 21, 1888 [Copyrighted Material Omitted]

CERTIORARI TO THE COURT OF QUARTER SESSIONS OF BERKS COUNTY.

No. 17 July Term 1888, Sup. Ct.; court below, March Sessions 1888.

On March 8, 1888, George Seibert and sixty-two others presented their petition representing:

That they are citizens and qualified electors of the Second ward, in the city of Reading, county of Berks, and state of Pennsylvania; that on February 21, 1888, the third Tuesday of the said month, there was an election, at which all of your petitioners voted, held in the said city of Reading in pursuance of law for the election of city, ward and precinct officers; that among other candidates ballotted for at said election were candidates for the select council of the said city; that at the last decennial census, in 1880, the city of Reading had a population of between forty-three and forty-four thousand persons, and now has a population of between sixty and seventy thousand persons; that by § 1, article VIII., act of May 24, 1887, P.L. 224, it is, among other things, enacted as follows: "The members of select council shall have the qualifications of senators of this commonwealth, and be chosen for the term of four years."

That by § 5, article II., of the constitution of Pennsylvania, the qualifications of senators of the state of Pennsylvania are defined and prescribed as follows: "Senators shall be at least twenty-five years of age and representatives twenty-one years of age. They shall have been citizens and inhabitants of the state four years, and inhabitants of their respective districts one year next before their election," unless absent on the public business of the United States or of this state, and shall reside in their respective districts during their terms of service

That at the said municipal election, held on the third Tuesday of February last, to wit: February 21, 1888, in the city of Reading, the qualified electors of the Second ward of said city were required by law to elect a person to serve as a member of select council for the term of four years, in pursuance of § 2 of article VIII. of the act of May 24, 1887, P.L. 224.

That the candidates for election to the select council in the Second ward, of the city of Reading, on the said third Tuesday of February, 1888, were Nathan N. Sprecher and Daniel Auchenbach, and the said Daniel Auchenbach received the largest number of votes cast and has been returned as elected as a member of the select council of the city of Reading from the said Second ward of said city.

That the said Daniel Auchenbach was not, on the said third Tuesday of February, 1888, when the said municipal election was held, qualified for election as a member of the select council of the said city of Reading from the Second ward, for the reason that he had not heen an inhabitant of the district, to wit, the said Second ward of the city of Reading, one year wit, the said Second ward of the city of Reading, one year next before his election on the said third Tuesday of February, 1888, and had not during the said one year next before his election been absent from said district on the public business of the United States or of this state, but, on the contrary, resided in the first precinct of the Tenth ward of the city of Reading, at 56 Cotton street, until the latter part of July, 1887, when he removed from 56 Cotton street, in the Tenth ward, to a house on Muhlenberg street, between Eight and Ninth streets, in the city of Reading, in the Second ward.

That the said Daniel Auchenbach had not been an inhabitant of the ward or district which he was elected to represent in said select council, to wit, the Second ward, one year next before the third Tuesday of February, 1888, the day of his said election to select council from the said ward, but, on the contrary, had been an inhabitant of said Second ward only from the latter part of July, 1887, to the said third Tuesday of February, 1888, the election day -- a period of about seven months.

That the pretended election of the said Daniel Auchenbach was undue and illegal, and the return thereof is not correct, and he is not qualified to be sworn as a member of select council of the city of Reading, for the reason that he had not been an inhabitant of the Second ward, the district to represent which in select council he was elected, for one year before his said election, as required by law.

Your petitioners respectfully pray the court to grant a rule upon Daniel Auchenbach to show cause why his election as a member of the select council of the city of Reading shall not be adjudged undue and illegal and the return thereof adjudged not correct.

This petition, verified by five of the petitioners, and accompanied by proof of service of a copy, with notice of the filing thereof, upon Daniel Auchenbach, the respondent, was the same day adjudged to be sufficient, directed to be filed, a day fixed for hearing and a rule granted upon the respondent returnable on said day, to show cause why his election as a member of the select council of said city should not be adjudged undue and illegal, service to be made four days before day of hearing.

On March 13, 1888, the day of hearing, the respondent answered:

That true it is, as set forth in said petition, that at the municipal election, held in the said city of Reading on the third Tuesday of February last past, he was a candidate for the office of member of the select council of said city from the Second ward, and received the largest number of votes cast and was returned as elected to said office. Upon the official computation of the returns of said election having afterwards been made by the prothonotary of the Court of Common Pleas of Berks county, and his sworn assistants, in open court, as provided by law, the said court certified under its official seal, that for the said office of member of the select council from the Second ward of the city of Reading, Nathan N. Sprecher received 402 votes, and Daniel Auchenbach, this respondent, received 471 votes, they being all the persons voted for for said office, which certificate remains a matter of record in said court.

That he, the said respondent, at the time of his election to said office, was, and still is, an inhabitant of the said Second ward of the city of Reading, and, as he is advised and believes, had the qualifications of a senator of this commonwealth, as prescribed by the constitution thereof, and required by § 1 of article VIII. of the act of the general assembly of May 24, 1887, regulating, among other things, the mode of election of members of councils in cities of the fourth, fifth, sixth and seventh classes, and applicable to the said city of Reading; that he was upwards of twenty-five years of age, and a citizen and inhabitant of the state of Pennsylvania four years and upwards, and an inhabitant of the Eleventh senatorial district of the said commonwealth, consisting of the said county of Berks, in which the said city of Reading is situated, one year and upwards, next before the date of said municipal election.

That at the time of his election he was, as he is advised and believes, qualified for election as a member of the select council of the city of Reading from the Second ward, under the provisions and requirements of the said act of May 24, 1887; although true it is, as alleged in the petition, to which this is in answer, that he had not been an inhabitant of the said Second ward for one year next before the date of the municipal election, held on the said third Tuesday of February, 1888, but removed therein from the Tenth ward, of said city, sometime during the latter part of July, 1887, which said allegation, as he is also informed and believes, is immaterial in the determination of his legal qualifications to serve in the office of select councilman, to which he was elected, and does not render his election to said office undue or illegal.

And the said respondent, for further answer in the premises, says that he is advised and believes that none of the facts set forth in the petition are such as to give the court jurisdiction under any law of this commonwealth to take cognizance of a proceeding, such as is here sought to be instituted to contest the legality of his election to the office of select councilman aforesaid. No violation of any election law of this commonwealth is alleged, either in respect to the manner of holding the election, counting or returning the votes therein, or computing and declaring the result thereof. He is further advised and believes that no inquiry as to his qualifications to serve in said office is properly cognizable by the court in this proceeding, but that such inquiry can first be lawfully instituted only by the select council of said city, it being provided in the act of May 24, 1887, aforesaid, that each branch of councils shall judge of the qualifications of its members.

Wherefore, etc.

Issue having been joined, testimony was taken in open court, wherein it appeared that the respondent at the time of said election was at least twenty-five years of age, had been a citizen and inhabitant of Pennsylvania for four years, an inhabitant of the 11th senatorial district thereof for one year, preceding his election, and had moved from the Tenth ward into the Second ward in July, 1887.

On March 31, 1888, the court, ERMENTROUT, J., filed the following opinion and decree:

Section 17, of the constitution of Pennsylvania, provides as follows "The trial and determination of contested elections of electors of president and vice-president, members of the general assembly, and of all public officers, whether...