Election Cases

• Decision Date: 14 February 1870
• Citation: 65 Pa. 20
• Parties: ELECTION CASES. Furman Sheppard, District Attorney. David P. Weaver, City Commissioner. Albert W. Fletcher, Prothonotary of the Common Pleas. George Getz, City Controller. Thomas J. Barger, City Solicitor. John M. Melloy, Receiver of Taxes.
• Court: Pennsylvania Supreme Court

65 Pa. 20

ELECTION CASES.

Furman Sheppard, District Attorney.

David P. Weaver, City Commissioner.

Albert W. Fletcher, Prothonotary of the Common Pleas.

George Getz, City Controller.

Thomas J. Barger, City Solicitor.

John M. Melloy, Receiver of Taxes.

Supreme Court of Pennsylvania.

January 27, 28, 29, 1870.

February 14, 1870.

January 27th, 28th, 29th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Writs of certiorari to the Court of Quarter Sessions and Court of Common Pleas of Philadelphia: Nos. 98, 99, 100, 101, 102, 103, to January Term 1870.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

G. W. Biddle, W. L. Hirst and H. M. Phillips (with whom were J. Gerhart, D. W. Sellers and L. C. Cassidy), for plaintiffs in error.

W. H. Rawle, W. B. Mann and Strong, for defendants in error.

The opinion of the court was delivered, February 14th 1870, by AGNEW, J.

These are important cases. They are political controversies; to be regretted, yet for this reason to be met in a spirit of candid inquiry. The contest of an election is a remedy given to the people, by petition for redress, when their suffrages have been thwarted by fraud or mistake. The constituted tribunal is the Court of Common Pleas, or the Quarter Sessions, as the case may be. By the Acts of July 2d 1839, and February 3d 1854, the court is to "proceed upon the merits of the complaint, and determine finally concerning the same, according to the laws of this Commonwealth." No bill of exceptions is given to its decisions, nor appeal allowed, and its decisions are final. Consequently the Supreme Court has no jurisdiction over the subject.

The attempt to press into service the Act of 1869, as giving an appeal, lacked the earnestness of conviction, and needs no refutation. It gives no appeal, while the appeal given on the receiver's account excludes the presumption that any other appeal was intended. The finality of the Acts of 1839 and 1854 remains, and there is no implication of an appeal, for there is no incongruity in this respect. It is only in case of a strong repugnancy that a former law is repealed by a subsequent act: Street v. Commonwealth, 6 W. & S. 209; Bank v. Commonwealth, 10 Barr 449; Brown v. County, 9 Harris 43.

Why, then, have the merits been so strongly urged? Why have the cases been termed appeals, and the parties appellants and appellees? Nothing but confusion can flow from these designations. The certiorari is a well-known writ, bringing up the record only. The parties are plaintiffs and defendants in error, and not appellants and appellees. The argument on the facts was therefore outside of the record. That the merits belong exclusively to the court below, and cannot be reviewed here, is a settled question: Carpenter's Case, 2 Harris 486. The court there quashed the certiorari, Gibson, C. J., saying that, "having no appellate jurisdiction, it would not be respectful or proper to express an extra-judicial opinion on the regularity of the proceedings." In like manner this court quashed the certiorari in Ewing v. Filley, 7 Wright 384. "Our duty," said Lowrie, C. J., "is a very restricted one; for, as is admitted, we cannot retry the case on the evidence, but can only consider whether it was tried before competent authority and in proper form." What the certiorari brings up is equally clear. This is very plainly stated by Woodward, J., in Chase v. Miller, 5 Wright 412-13, a contested election case. After explaining our general power of review, he says: "But this statement is to be received with a very important qualification — that the errors to be reviewed shall appear on the record. This is necessary to all appellate jurisdiction where cases come up by writs of error or certiorari. The only mode provided by law for bringing evidence, or the opinion of an inferior court upon what is technically called the record, is by a bill of exceptions, sealed and certified by the judges; and as bills of exception are not allowed in the Quarter Sessions, no question which arises out of the evidence in that court can be got up into this court. Hence, while certiorari lies to the proceedings of the Quarter Sessions in road cases, in pauper cases, in contested election cases, and in other statutory causes committed to the jurisdiction of that court, the writ brings up nothing but what appears on the record, without a bill of exceptions." That neither the testimony, nor the opinion of the court, is brought with the record by a certiorari, has been reiterated over and over again. I refer to a few of the recent cases to show that we have not departed from the doctrine of our predecessors: Commonwealth v. Gurley, 9 Wright 392 — Indictment, per Thompson, J.; Church Street, 4 P. F. Smith 353 — Road Case, per Thompson, J.; Oakland Railway v. Keenan, 6 P. F. Smith 198 — Justice and Jury on Sheriff's Sale, per Woodward, C. J.; Plunket Creek v. Fairfield, 8 P. F. Smith 209 — Pauper Case, per Strong, J. In Pennsylvania Railroad v. German Lutheran Congregation, 3 P. F. Smith 445, a strong effort was made to get before us the merits of a view and assessment by a railroad jury, and the subject was again examined elaborately, and the same conclusion reached. The strenuous effort to induce us to review the testimony, calculations and opinion of the court in these cases was, therefore, contrary to the settled law of the writ of certiorari. This excludes from our consideration the report of the examiner, all the calculations and all the court did, either by striking out or purging polls. They are not in the record, and all assignments of error founded on them fall.

Putting aside, then, these lures to error, the remaining assignments may be treated under three heads — those affecting jurisdiction, those relating to the procedure of the court, and those relating to the frame of the complaint. The first involving the jurisdiction is the oath to the petition. This concerns the city officers only. The Act of 1854 requires that "at least two of the complainants shall take and subscribe an oath or affirmation that the facts set forth in such complaint are true." The oath to the petitions reads "that the facts are true to the best of their knowledge and belief." This addition, it is asserted, lessens the strength of the oath — that the law requires the absolute truth of the facts to be sworn to, and not the best knowledge and belief of the affiants. Does the law mean absolute verity? This is the question. The intention of the lawgivers must be discovered, not only from the words, but from the object of the law, the special purpose of the oath, the nature of its subject and the character and jurisdiction of the tribunal. The object of the law is to give the people a remedy. It is their appeal from the election board to the court from an undue election or a false return. The law is therefore remedial, and to be construed to advance the remedy. The special purpose of the oath is to initiate this remedy — to give it the impress of good faith and probable cause. The proof of facts must follow, not precede the complaint. It is contrary to our sense of justice and to all analogy, to say that a remedy shall not begin till the case has been fully proved. The law being remedial and the oath initial only, it is not to be supposed the legislature, representing the people, intended to subject the remedy to unreasonable or impossible conditions. The remedy would be worthless and the legislature stultified. Correct interpretation will shun this result. This brings us to the subject of the oath. In a city of 800,000 inhabitants, embracing a surface of many square miles, no two nor two hundred men can be invested with the ubiquity and the omniscience to see and to know all the facts in every precinct necessary to contest the whole poll of the city. Nay, they could not, from personal knowledge, contest the poll of a single ward. Besides, there are essential facts they cannot know personally. They cannot pry into the ballots. They may believe, or may be credibly informed, that 153 unqualified persons voted a certain ticket, but they cannot know it; yet this knowledge is essential to the contest. Their knowledge, to be personal, must be as ubiquitous as the fraud, and as thorough as the whole number of voters, their residences, qualifications and ballots, and comprehend all the unlawful acts of every election board. In this instance 120,000 votes were polled in 266 precincts. Now, it is simply impossible that two, nay, all the fifty petitioners could personally know the facts necessary to contest the poll of the entire city. The legislature did not mean this vain thing. Lex non intendit aliquid impossibile. Lex nil facit frustra — nil jubet frustra. It is the duty of a court to construe a statute, if possible, ut res magis valeat quam pereat: Huber v. Reily, 3 P. F. Smith 115, 117. These principles have been stated with much force, and with reference to the highest authority, in Schuylkill Navigation Co. v. Loose, 7 Harris 18, 19. The case comes, then, right to this point. The oath must be made from credible information, or not at all. In the poll of such a city the affiant cannot swear to more than to the best of his knowledge and belief. It would be an imputation on the framers of the law to think otherwise. The argument that no indictment would lie for perjury upon this form of oath is fallacious. If the act means an oath in this form, then the oath in that form is an oath authorized by law, and an indictment for its corrupt and wilful breach will lie.

We must consider also the tribunal to hear and decide on the petition. It is a high constitutional court, competent to decide on its own jurisdiction. Its jurisdiction being exclusive and final, it necessarily decides it for itself. There was no omission of anything to confer jurisdiction. The...