(Qualification of election officers.)

tion; my own impression is, that it was one of those thoughtless and inconsiderate acts often done by perfectly honest and well-intentioned men. But the interference of a third person with the duties exclusively belonging to the officers of an election, where such interference is not shown to have produced injurious results to any one, and where the manner and extent of it leave no just ground to presume fraud or malpractice, ought not to be deemed sufficient to destroy an otherwise fair election. A decision to that extent could hardly be called a decision on the merits; it would be based on the assumption of wrong perpetrated, without actual proof of its existence; it would leave all elections at the mercy of any one hardy enough to intrude himself where he has no business. It would be much more consonant with natural justice, much more consistent with the merits of an election so interfered with, to punish the intruder, without making his act operate to defeat the expressed will of the people, and deprive the candidates of the offices to which they have been chosen.

While this court would not hesitate in setting aside an election, where they were convinced that, in conducting it, the laws of the commonwealth had been infracted, yet they certainly will not exercise ingenuity to find causes for such an adjudication; on the contrary, every fair presumption ought to be made in favor of popular elections, and the leaning ever should be, to sustain them, where this can be done consistently with a faithful and independent maintenance of their purity. In our opinion, the complainants have failed in establishing the election of alderman Boileau to have been undue and illegal; consequently, their complaint must be dismissed.

Complaint dismissed.

The principle decided in Boileau's case, was re-affirmed by the court, in Thompson v. Ewing, 1 Brewst. 69, in which it was decided, that although a clerk ought not to assume the place of an absent inspector, yet,

(Election officers de facto.)

this will not vitiate the election; an election holden by officers de facto is valid. 19 Am. L. Reg. 444-5. And in the case of the Passyunk Election, the same court determined, in December 1847, that a candidate for a township office, or for judge or inspector of elections, is competent to act as judge or inspector of his own election. In September 1869, the court ruled that the following offices or employments disqualified the holders thereof from serving as election officers, namely, clerk in the gas-trust, out-door visitor of the guardians of the poor, lieutenant of a gang of workmen in the navy-yard, post-office letter carrier, and clerk in the mint. 2 Brewst. 133.

COMMONWEALTH v. SMITH.

In the Supreme Court of Pennsylvania.

JANUARY TERM 1863.

(REPORTED 45 PENNSYLVANIA STATE REPORTS 59.)

[Election officers de facto.]

If an election for managers of a corporation be not disputed, during their term of office, by quo warranto, and they be permitted to act throughout their term, as officers de facto, the legality of the next election cannot be questioned for any vice or irregularity in the first.

Certificate from the court of Nisi Prius. This was a quo warranto issued on the petition of Isaac Jackson and others, setting forth that they were duly elected managers of the "Olive Cemetery Company," on the first Monday of April 1857, and that Stephen Smith and others, the defendants, under a pretended election, had usurped the said office. The defendants, by their plea, denied the election of the relators, and claimed that they themselves were duly elected, upon which issue was joined. There was a verdict for the relators, subject to the opinion of the court upon the following, among other, reserved points: that the election of 1856, not having been disputed by quo

(Election officers de facto.)

warranto, against the Smith party, during their term of office, and they having acted out their term as directors de facto, can the next and subsequent elections held under them, be now disputed, for any vice in the election of 1856? This point was decided in favor of the defendants, which was assigned for error.

Longstreth, for plaintiffs in error.

Gibbons, for defendants in error.

WOODWARD, J., delivered the opinion of the court. Two sets of managers of the "Olive Cemetery Company" were elected on the first Monday of September 1857, the day fixed in the charter for annual elections; on the 21st of that month, this quo warranto was sued out by Isaac Jackson, and the others of his set, as relators, against Stephen Smith, and the others of his set, who were in possession of the books and properties of the company. The defendants were the acting board of the previous year, had appointed the election of 1857, and were duly elected at the time and place appointed; the relators were elected on the same day, but at another place; and they claimed that the election of the respondents was irregular, because they had not been legally elected in 1856, and therefore, had no right to appoint the election of 1857.

Neither the charter nor the by-laws fix the place at which the annual elections shall be held; the board of managers for the time being are, therefore, to fix it. But, say the relators, the acting managers for 1856 were intruders, and are not entitled to the offices they exercised; the answer is, they were officers de facto, and if you meant to show that they were not officers de jure, you should have brought quo warranto in the lifetime of their office. The office was an annual one. How is a title to the office in 1856, to be tried on pleadings that relate entirely to the office of 1857? I have no doubt, that a quo warranto,

(Election officers de facto.)

brought within the term of an office, may be well tried after the term has expired; but it is difficult to see how title to a past and defunct office can be tried, in a proceeding instituted, not against any incumbent of that office during its lifetime, but against the incumbent who succeeds for the next year. It is true, that, in general, the persons elected must take upon themselves to support the qualifications of the electors, and the regularity of the proceedings, and I think the respondents do this, when they show themselves elected by lot-holders, at an election appointed and held by a de facto board of managers. To impeach the title of the respondents, we will not go back, in the present suit, to impeach the title of their predecessors; as the relators did not think proper to call the title of their predecessors into judicial question, during the year of its vitality, we will, for the present, presume it unquestionable. Of course, it follows, that the election they appointed for 1857, was the regular election, and that the respondents were duly elected.

The other question in the record is not reached, in the view we have taken of the first; if the election of 1856 is not to be overhauled in this action, then the right of Vidal to vote at that election, according to the title he held from Smith, would be an irrelevant inquiry.

Judgment affirmed.

Perhaps no question in the law is better settled than this, that the acts of officers de facto are as valid, so far as the public is concerned, as those of an officer de jure. People v. Cook, 8 N. Y. 89, and cases there cited; 14 Barb. 254; Commonwealth v. Haworth, 3 Brewst. 445; 19 Am. L. Reg. 444. An officer de facto is one who comes into office by color of a legal appointment or election; his title cannot be inquired into collaterally. Ibid.; Northrop v. Gregory, 2 Abbott U. S. Rep. 505; Milliken v. Fuller, 2 Cong. Elect. Cas. 176. All that is done by individuals de facto exercising a legal authority, is presumed to be done rightly. Carpenter's Case, 2 Pars. 537. A poll will not be rejected simply

(Privileges of electors.)

because the officers were irregularly chosen. Thompson v. Ewing, 1 Brewst. 69.

That a quo warranto commenced during the incumbency of the defendant, may be prosecuted to judgment, after the expiration of his term of office, was decided in Hunter v. Chandler, 45 Mo. 453.

SWIFT v. CHAMBERLAIN.

In the Court of Errors of Connecticut.

JUNE TERM 1821.

(REPORTED 3 CONNECTICUT 537.)

[Privileges of electors.]

An elector, after having voted, retired to a public-house in the neighborhood, while the election officers were counting the votes: held, that he was attending on the business of the election, and therefore, privileged from arrest on civil process.

But, for the violation of an elector's privilege, though maliciously, under lawful and regular process, trespass will not lie; the proper remedy is an action on the case.

This was an action of trespass for an unlawful arrest of the plaintiff, tried at Litchfield, before Brainard, J. The defendant admitted the arrest, but justified under a regular writ of attachment which, as an officer, he then held against the plaintiff.

The plaintiff claimed that he was, at the time of arrest, an elector, which was known to the defendant; that the writ was served on him, on the day of election, while he was there attending on such election; that he had given in his vote, and after the votes of all the other electors had been given in, he retired to a public-house in the neighborhood, while the proper officers were counting the votes, during which time he was arrested; he therefore claimed that his arrest was illegal, under the constitution.