"The
reasons in support of this motion are as follows:
"1.
Because the offices contested being four separate and
distinct offices, there should have been filed four separate
and distinct petitions, each signed by at least twenty-five
qualified electors, who voted at the election contested, and
each petition setting forth the name of the person whose
title to the office is contested.
"2.
Because the four offices being contested, being four separate
and distinct offices, the petition should have been signed by
at least one hundred qualified electors who voted at the
election contested, and should have been verified by at least
twenty of the petitioners.
"3.
The affidavit to said petition is not in conformity with the
provisions of the act of general assembly approved May 19
1874, relating to contested elections in this commonwealth.
"A
motion of this kind is analogous to a demurrer in other
proceedings. As the allegations of the petition are sworn to
and not denied, we must presume, for the purposes of this
investigation, that they are true. To grant the motion is to
end the proceedings and close the doors against the
investigation of the most dangerous and far-reaching of
election frauds. The responsibility should not be assumed by
a subordinate court, unless there is no escape from it either
in the law itself or in the decisions of the Supreme Court,
which it is our duty to follow without question.
"The
decisions of our courts show that there has been a gradual
relief from the technical embarrassments which beset the
citizens in their efforts to correct the mistakes and frauds
of elections. The courts have given a willing hearing to
wellconsidered charges of fraud, and have assisted, so far as
was consistent with their functions, the correction of false
election returns.
"In
the spirit of these decisions the act of 1874 originated. It
was intended to arrest a great and growing evil, which
threatened the existence of our free institutions; which made
the franchise of voting a farce; which deprived the honest
majority of their right to rule, and cheated the legally
elected out of the honors and profits of office. It should
therefore be construed in the light of judicial decisions and
in the spirit of its manifest purpose.
"Chief
Justice AGNEW, in the Election Cases, 65 Pa. 31, said:
'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
first objection to the petition is, that it embraces four
returns, which are alleged to be undue.
"In
Marshall v. Baldwin, 11 Phila. 384, this court said:
'When it is remembered that in cases of contested
election the courts are required to decide upon the
"merits" we may understand why they have always
looked with disfavor upon merely technical objections, and
have labored to strip these cases of all impediments to
decisions upon the "merits" alone. Accordingly, we
find President Judge THOMPSON, of this court, giving emphatic
declaration to this idea in Mann v. Cassidy. He says:
"It is obvious that, if the court were to require the
same precision and certainty in an election petition as in
pleadings between parties to a suit at law, the difficulty of
stating precisely the manner in which a fraud has been
perpetrated, or an undue return made, would, to a great
degree, nullify the law itself, which designs that such
charges shall be investigated."' This idea of
freeing the proceedings from technicalities, which would
embarrass them or render them burdensome, runs through all
the decisions.
"It
is too late now, when the intricacies of pleadings are
scarcely a memory, to introduce them into proceedings which
are to be determined upon the 'merits' alone.
"In
this case four persons are charged with being improperly
returned as elected to common council. They were voted for or
against by all the voters of the ward to represent them in
council, at the same election and at the same polls. The
return of each and all is called in question. The petition
avers that each one was improperly returned as elected, and
that an examination of the ballots will establish this fact.
They are not thereby compelled to share each other's
labors. Each one, if properly elected, can show it by the
ballots, and he can be in no way embarrassed or helped by the
facts which relate to the others. But this is all a matter of
proof, and in the hearing the court will always make such
orders and decrees as will protect the right of all
litigants.
"It
should be recollected that this is not a proceeding in which
the persons who are alleged to be elected are the actors. The
petitioners are the actors, and responsible for the costs
which may be incurred. It is, moreover, a proceeding to
protect and enforce the right of all the voters.
"To
require four proceedings would necessarily increase the
expense and trouble to parties and witnesses. Each witness
would be heard four times, each item of evidence, or paper,
or document would be four times examined and taken down. The
final adjudication would thus be delayed, perhaps, until the
terms of office had expired. Such hardship should not be
imposed, at least in cases of this kind, without good and
sufficient reasons, and none such have been suggested or
occur to us. Moreover, it has not been made manifest how the
persons whose return is questioned can be benefited by four
proceedings or injured by one. When it shall appear that
their individual interests may be jeopardized we shall find a
way to protect them. There is no other way by which the truth
of this election can be ascertained, with a just regard for
the rights of all. If single petitions are presented, single
persons must be selected as contestants; and the evidence
might show that neither was elected.
"This
is, perhaps, the first time that this question has arisen.
There are no authorities or analogies to aid us. And it must
be admitted that it is open to discussion. Why should we, in
a doubtful matter, which can only be settled by the Supreme
Court, be asked to stop such an important inquiry, and
thereby give protection and encouragement to election frauds.
"It
is not necessary to consider the second reason. The third
objection is as follows: The affidavit to the petition is
fatally defective in this: That it omits two important
requisites of the act of May 19, 1874. (a.) It does not set
forth that the petitioners verily believe the facts stated
therein to be true. (b.) It does not set forth that,
according to the best their knowledge and belief, the
election was undue or illegal. The words of the affidavit to
the petition are, in lieu of those required by the statute,
the following: 'That the statements set forth in the
above petition are just and true to the best of their
knowledge and belief. There is no averment respecting the
election, or that it was undue or illegal.'
"The
act of 1854, under which the Election Cases were decided,
required that: 'At least two of the complainants should
take and subscribe an oath or affidavit that the facts set
forth in such complaint are true.' The oath to the
petitions was, 'that the facts are true to the best of
their knowledge and belief,' as in the present
proceeding. The Supreme Court held this to be sufficient.
Chief Justice AGNEW said, 'The law does not prescribe the
form of the oath. It certainly was for the court, in judging
of its own jurisdiction, to interpret the words of the
affidavit. The special purpose of the oath is to initiate
this remedy -- to give it the impress of good faith and
probable cause.'
"In
the same cases the requisites to give the court jurisdiction
are given by Chief Justice AGNEW, as follows: 'It (the
petition) sets forth in befitting terms the general election
of 1868, the persons voted for, the number of votes returned
for each, and the majority for the persons returned, charges
an undue election and false returns, alleges the election of
the opponent, and sets forth the grounds of the illegality of
the election.'
"The
petition before us is wanting in none of these particulars,
and has in addition the averment that the petitioners are
qualified voters, which was the only point decided by the
Supreme Court in Welti's Case, 3 W.N. 165.
"It
specifically avers that there was a 'false return and an
undue election;' that 'the said election and the said
return is false, fraudulent and untrue.' The
specifications of the petition are that certain ballots in
the several divisions were cast 'in an improper, informal
and illegal manner, and that the said election was false,
fraudulent and untrue and void, and the return thereof
false.'
"It
will not be questioned that these averments duly assert that
the election returns were undue and illegal. Does the
affidavit sufficiently aver that these facts are true?
"The
act of 1874 prescribes no form of oath. It requires only that
what is essential to give jurisdiction should have the
sanctity of an oath. If, therefore, the petition is
sufficient, any words in the affidavit which will give this
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