(Validity of a minority election.)

(Having commented on the other issues raised by the pleadings, which are of no public interest, the learned judge concluded his charge by again calling the attention of the jury to the essential question in the cause, namely, whether the ballot of Abraham Miller was or was not received as such by the county-board, and said:) It is the correct solution of this question that will substantially decide whether George Read is or is not the Treasurer of Philadelphia county. If this ballot was tendered and received as a ballot vote, then the verdict should be, on the issue of election or non-election, in favor of the defendant. If, on the contrary, the vote was not received as a ballot, though tendered as such, then the verdict should be for the commonwealth.

Verdict for defendant.

There can be no doubt of the application of the principle of Commonwealth v. Read, when the elective body consists of an indefinite number of persons; and accordingly, in State v. Binder, 38 Mo. 450, it was held, that in the absence of any evidence to the contrary, it will be presumed that the voters, voting at an election, were all the legal voters of the city, or that those who did not see fit to vote acquiesced in the action of those who did vote, and consequently, are equally bound and concluded by the result of the election.

But as applied to the case of a body composed of a definite number, there is more doubt, yet the English authorities appear decidedly to sustain the doctrine of the principal case. Thus, in Rex v. Withers, Pasch. 8 Geo. II., cited in Cowper 537, and 2 Burr. 1020, five voters out of eleven, voted for the defendant, upon a single vacancy of a burgess for the borough of Westbury, and six others voted for two persons jointly; but the court of king's bench held that the double votes were absolutely thrown away, and refused to grant an information against the defendant. And in Rex v. Foxcroft, 2 Burr. 1021, Lord Mansfield said: "Whenever electors are present, and don't vote at all (as they have done here), they virtually acquiesce in the election made by those who do."

A modern case has somewhat restricted this doctrine in the English courts; for in Regina v. Guardians of St. Martin's in the Fields, 5 Eng.

(Disqualifications for office.)

L. & Eq. 361, the court of queen's bench determined that, where the law required the election to be by a majority of the guardians present, and the meeting at which the election of a clerk was held, consisted of the chairman and twenty-one members of the board, an election by the votes of eleven members (the chairman not voting) was invalid, Lord Campbell saying, that the judges were all of opinion that the chairman must be considered present at the election, and consequently, the person declared elected had not a majority of the twenty-two guardians present.

COMMONWEALTH v. SHAVER.

In the Supreme Court of Pennsylvania.

MAY TERM 1842.

(REPORTED 3 WATTS & SERGEANT 338.)

[Disqualifications for office.]

The trial and conviction of a sheriff, of the offence of bribing a voter, previously to his election to the office, does not constitutionally disqualify him from exercising the duties thereof; it is not a "conviction of misbehavior in office, or of any infamous crime," within the meaning of the constitution."

This was a quo warranto issued on the relation of Jacob Africa against John Shaver, to inquire by what authority the defendant exercised the office of sheriff of the county of Huntingdon.

In October 1841, the defendant was elected sheriff of the county of Huntingdon, and was commissioned on the 3d November 1841. At the January sessions 1842, he was tried and convicted of the offence of bribing one Christian Couts, prior to his election, to vote for and support him for the office of sheriff; and at the April sessions following, he was sentenced to pay a fine of $100, and to undergo an imprisonment for one month in the county jail. The governor, thereupon, on the 18th April 1842,

(Disqualifications for office.)

issued a supersedeas revoking his commission; but as he still continued to exercise the duties of the office, and to take and receive its emoluments, this writ of quo warranto was sued out by the attorney-general.

Johnson, Attorney-General, with whom was Ayres, for the relator.

Miles and Bell, for the defendant.

KENNEDY, J., delivered the opinion of the court. The point to be decided in this case arises out of the ninth section of the sixth article of the constitution of the state, which is in the following words: "All officers for term of years shall hold their offices for the terms respectively specified, only on the condition, that they shall so long behave themselves well; and shall be removed on conviction of misbehavior in office, or of any infamous crime.” It is very clear, that sheriffs, as well as all other officers holding their respective offices for a term of years only, are embraced within this provision of the constitution, so that the respondent, though duly elected and commissioned to the office of sheriff, cannot claim to hold it, after he has been convicted of misbehavior in it, or of any infamous crime. But has he been convicted of either the one or the other of these offences? is the question which remains to be solved.

As to misbehavior in office, it is perfectly manifest, that he has not even been charged with, much less, convicted of it. But it has been urged, and indeed, strenuously too, on behalf of the commonwealth, that he has been convicted of an infamous crime. That he has been convicted of an offence of great public concern cannot be denied; for, it unquestionably is of vital importance to the best interests of the republic, that the purity and freedom of the election of all its officers should be preserved, and kept free from every species of improper bias or corruption. In order, however, to determine whether

(Disqualifications for office.)

the crime of which the respondent has been convicted, be infamous within the meaning of the constitution, or not, it becomes necessary to examine and ascertain first, what the framers and makers of it meant by the words "infamous crime." For, although we may think, that the offence of which the defendant has been convicted, is such as ought to disqualify him for holding the office, yet we are not to let our private feelings or sentiments influence or govern us in deciding this point. Instead of submitting to such an influence, it is our bounden duty, after a careful examination of the question, to determine it according to what we believe was intended by the makers of the constitution, which must be regarded as the law on the subject. Before proceeding, however, to ascertain this, it may be proper to observe, that we have no act of assembly which goes to render the commission of the respondent void, for or on account of the offence committed by him; whether, therefore, his commission can be considered void, or he removed from his office, by reason of his having committed and been convicted of the offence of bribery in canvassing for it, depends entirely upon the true meaning and import of the words of the constitution in respect to the same.

If, upon examination, it shall be found, that the words "infamous crime" have received, in law, a fixed and definite meaning, it will certainly furnish strong, if not conclusive ground, for holding that such must have been the meaning which the makers of the constitution intended should be affixed and given to them; and more especially ought we to come to this conclusion, if it shall be found impracticable to discover and lay down any other rule by which crimes may be determined, with reasonable certainty, to be infamous or otherwise. For, although an officer may, in a popular sense, be said to have rendered himself infamous, by the general tenor of his immoral conduct, without having rendered himself liable to a criminal prosecution and punishment, at law, yet, it is very clear, that the makers of the constitution did not intend that the word "infamous" should be applied to

(Disqualifications for office.)

any officer, so as to cause him to be removed from office, however immoral his conduct may have been, unless he has been guilty of some offence that is made punishable by law; because, by the express terms of the provision, he is not to be removed from office, without a previous conviction, which can only be, when the offence committed by him is such as is made punishable by law. He may, therefore, have become infamous in the general estimation of the world, by having rendered himself odious and detestable (which is one of the meanings given by Mr. Webster, in his Dictionary, to the word "infamous"), with out having made himself liable to a prosecution and conviction at law for his misconduct. Indeed, he may be so notoriously and entirely destitute of truth, as to be altogether unworthy of credit, even when called to testify on oath, and yet never have been guilty of perjury or any other indictable offence. In short, there are also many evil practices of which a man may be guilty, beside that of lying (which may be said to lie at the root of almost all moral obliquity), for which he cannot be indicted or punished by law, and yet they are sufficient to render him infamous in the estimation of the more intelligent and virtuous portion of the community. They are so numerous, it would be difficult to enumerate them all; and at the same time, so various, that there might probably be some diversity of opinion whether they ought to be regarded as attaching infamy to the person.

But since, according to the express terms of the provision in the constitution, it is only on conviction of the officer, either of misbehavior in his office, or of some infamous crime, that it is declared he shall be removed from his office, it would, therefore, seem as if the makers of the constitution intended that the law in force for the time being, should determine whether the crime was infamous or not. If this had not been intended, it is reasonable to conclude, that they would have given some explanation of what they meant by the term "infamous;" but not having