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(Requisites of a petition to contest an election.)

and subscribe an oath or affirmation, that the facts set forth in such complaint are true, to the best of their knowledge and belief; and said court shall, in judging concerning such election, proceed upon the merits thereof, and shall determine finally concerning the same, according to the laws of this commonwealth."

From this source all our authority over the subject is derived; we possess no inherent power in regard to it. It is in the direct powers granted to us by this law, or in the necessary implications arising from such granted powers, that all our jurisdiction resides. And here is seen the inaptitude of the legislative precedents, state and national, that have been so zealously urged upon us by one of the counsel for the petitioners; congress and the state legislature have an inherent and fundamental right to judge of the qualification of the members of their respective bodies; this right is not given by law, but is part and parcel of the very organization of those governments: hence, when in possession of a petition complaining of the undue election of one of their returned members, they may conduct the investigation pro re nata. Although they should entertain a general complaint of undue election or return, they may, before proceeding to an investigation, demand of the complainants a specification of the grounds on which they seek to vacate the return; and this, we are informed by the learned counsel, is the actual practice of congress. We, however, have a more limited charter in the election contest made subject to our revision; our authority is derived from express and written law, and unless parties complainant bring themselves within the requirements of this law, we are powerless.

The question, what are these requirements? brings us to the second division of our subject. The complainants take the broad ground that, inasmuch as the words of the act give us jurisdiction on a complaint of "undue election or return," a petition is sufficient, if it contain these allegations, and no more. The vice of this argument

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(Requisites of a petition to contest an election.)

consists in confounding the conclusion with the premises; "undue election or return," are the expression of the facts which constitute such an election or return undue. An election or return may be undue from a variety of causes. The election may be undue, because it has not been held at the time and place fixed by law; because it has not been held by the proper officers; because the officers have not been qualified according to law; because the clerks were not qualified; because the successful candidate was incompetent to be chosen. A return may be undue, because it fraudulently falsifies the actual aggregate of the votes given; because it is founded on mathematical error; because it, intentionally or ignorantly, declares one man chosen, when the documents from which it was framed show the choice to have fallen on another.

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When, therefore, the legislature say that we shall take cognisance of the complaint of an "undue election or false return" of a public officer, they mean, that we shall inquire into the facts from which such an election or return becomes undue. That such facts ought to be set forth in the petition or complaint, is manifest, as well from the terms of the law, as from the nature and fitness of things. The law requires that two of the petitioners shall swear or affirm, "that the facts set forth in such complaint are true.” What facts? Certainly, the facts from which "the election and return" are supposed, in the complaint, to become undue. If, instead of requiring a statement of such facts, we should admit a complaint to be adequate, which simply avers an "undue election or return," what a predicament do we place ourselves in. Instead of retaining to ourselves the right of deciding in limine, whether the grounds of the complaint, if well-founded in fact, constitute "an undue election and return," we refer the solution of that question to the complainants, who certainly are not the best-qualified persons, either in feeling or capacity, to solve such a question. By adopting this construction of the act, we would continually find ourselves in this posi

(Requisites of a petition to contest an election.)

tion. We would commence and progress in investigations, involving great expense, time and public feeling, and when we had completed them, discover that, admitting everything alleged against the dueness of the election or return to be proved, still the causes of exception are, if anything, mere irregularities which, on an investigation of the merits, we should be bound to disregard.

How, then, are we to avoid the absurdities and incongruities which would inevitably follow, should we refer the decision of the adequacy of the causes of complaint to constitute undueness, to the judgments and consciences of the complainants, instead of inquiring into them ourselves? Simply, by following the directions of the law; by requiring the complainants to set forth the facts, in such complaint, on which they found their allegation of the undueness of the election. Then we have the means of ascertaining, before we originate an expensive, burdensome and harassing inquiry, whether, on the complainants' own showing, the complaint can, if sustained by proof, avail anything against the return. Is there any hardship in this requisition? It only requires the complainants to say why they complain. If they have any reason for such a complaint, why not assign it? If they have none, or what is the same thing, no sufficient one, then surely, they have no right to disturb others with their mere discontents. There certainly is no danger that complainants, or any other class of suitors, will not state their own case strong enough; that rarely happens in judicial proceedings.

Again, is not the party complained against entitled to know why, and for what, his return is sought to be impeached, before he enters into a contest? Is his adversary to be permitted to mine under him, and he only to know the cause of danger by the explosion of the train? The right to notice of charge or demand lies at the foundation of the administration of all human justice; in all courts, civil or criminal, military or ecclesiastical, this right is an axiom, unquestioned and unquestionable. Is

(Requisites of a petition to contest an election.)

a naked complaint of "an undue election or return” of an elective officer, such notice to him of the cause of exception as justice requires? The question answers itself.

On the whole, we are clearly and unanimously of opinion that it is the duty of parties complaining against the election or return of an officer, under the act of the 2d of July 1839, to set forth the facts on which the complaint is founded, plainly and distinctly; and that to induce the court to proceed to the consideration of such a complaint, the facts so set forth should exhibit a case which, if sustained in proof, would render it the duty of the court, either to entirely vacate the election, or to declare that another person, and not the party returned, was duly elected to the office in question.

We are thus brought to the final question in the cause, to wit, whether, testing this complaint by these principles, it is adequate in form and substance? It commences, by stating that the election was duly held in October last, and that the judges and officers thereof returned that David C. Skerrett was duly elected prothonotary of the district court for the city and county of Philadelphia, when in truth and in fact, William Sloanaker was duly elected to the said office, as will appear by inquiry and investigation made into the merits of the said election. That the said election was an undue election, and false and fraudulent; and the returns thereof false and fraudulent returns.

It then proceeds to specify that, in many of the townships, wards and districts, to wit, the several wards of the incorporated districts of the Northern Liberties, Kensington, Spring Garden, Southwark and Moyamensing; and in the township of the Northern Liberties, as well as in the several wards of the city of Philadelphia, and in the other election districts of the city and county, the provisions and regulations of the "act relating to elections in this commonwealth," were not observed and kept. That the inspectors of said elections did not call aloud the

(Requisites of a petition to contest an election.)

respective names of all the electors upon receiving their tickets; nor did the clerks of said election repeat the names of the said electors; nor did the inspectors inscribe the letter V on the margin of the alphabetical lists, opposite the names of all such electors; nor did the inspectors note on the margins of such lists, the fact of the production of certificates of naturalization, and of such other things as are required by the 70th section of the act of assembly aforesaid; nor did the inspectors deliberately take out of the boxes in which they had been deposited, the tickets headed "County Officers," on which the prothonotary of the district court was voted, and read aloud the name of said prothonotary, and the name or names printed or written thereon, when counting the same; but in receiving and counting the said tickets, the inspectors of the said several wards, townships and election districts, proceeded contrary to the requirements of the laws of this commonwealth relating to elections.

The complaint further proceeds to state, that at said election, many illegal and fraudulent votes were received, taken and counted by the said inspectors and judges thereof, for David C. Skerrett for the office of prothonotary of the district court; and that it was by these illegal and fraudulent votes, and by the irregular mode of counting the tickets, and by other irregularities and illegalities, a majority has been made to appear in favor of the said David C. Skerrett, for the office of prothonotary of the district court aforesaid.

It further asserts, that at the said election, the said William Sloanaker was duly elected to the said office, as will appear by recounting the tickets or ballots voted by the duly qualified electors of said city and county; and by an inquiry and investigation into the said election, and the rejection of the illegal and fraudulent tickets, irregularly and illegally received, taken and counted for the said David C. Skerrett, as the petitioners verily believe.

In considering the sufficiency of the petition, we will

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