(Requisites of a petition to contest an election.)

arrange the allegations contained in it, under two categories: 1. Those which complain of irregularities: 2. Those which purport to make substantial and meritorious

averments.

I. To the first of these classes belong the complaints that the inspectors did not call aloud the names of the electors, as they voted; that they did not insert the letter V on the margin of the alphabetical lists of voters, opposite the names of the electors voting; that they did not note the production of their certificates by naturalized citizens; and that they did not deliberately take out of the boxes, and read aloud the names of the persons voted for. These may be disposed of at once, by the fact that they are but directory to the officers of the election, and that, although the officers wilfully violating them may subject themselves to censure and punishment, the omissions of such officers cannot operate to nullify the election, in an inquiry directed to be determined upon the merits. In Boileau's Case (2 Parsons 503, ante 270), the doctrine of the court on this subject was thus expressed: "in all cases in which irregularities in conducting an election, are not of a flagrant character, we are required to look into its good faith and integrity; and if they are manifest, we are not to defeat the popular will, because of some slip in the minor details of an election, which does not prevent our ready ascertainment of what that will is; this is the spirit of the act of assembly, giving us this delicate jurisdiction; a spirit in entire harmony with our popular institutions.” The effect, too, of regarding such irregularities as fatal to the election, would operate, not merely to defeat Mr. Skerrett's return; it would be equally disastrous to Mr. Sloanaker, as it would result in determining the whole election to be a nullity.

II. Nothing remains but to ascertain whether the objections to the election and return of Mr. Skerrett, which may be classified as, in their nature, meritorious, rather than formal, have that precision and directness which we

(Requisites of a petition to contest an election.)

hold to be essential, in order to induce us to entertain them; these consist

1. In the allegation that the officers of the election have returned David C. Skerrett as elected, when, in truth and in fact, William Sloanaker was elected:

2. That the election was an undue election; and that the returns thereof, that David C. Skerrett was duly elected, are false and fraudulent returns:

3. That many illegal and fraudulent votes were received, taken and counted for the said Skerrett; and that it was by these illegal and fraudulent votes, and by the illegal mode of counting the tickets, and by other irregularities and illegalities, that a majority has been made to appear in favor of the said Skerrett: and

4. That the said Sloanaker was duly elected, as will appear by recounting the tickets or ballots voted by the duly qualified electors, and by an inquiry into the election, and the rejection of the illegal and fraudulent tickets, irregularly and illegally received.

The sufficiency of these specifications we will consider in their order. The first, that the officers have returned Mr. Skerrett as duly elected, when, in truth and in fact, Mr. Sloanaker was duly elected, is obnoxious to the imputation of vagueness and generality; it states conclusions, not the facts from which they are drawn. Why is it that Mr. Skerrett, who has received the returns, was not duly elected? Were the votes given for him less in number than those given to any other candidate? Was his majority produced by illegal votes given in his favor, equal to any apparent majority he may have received? Was he, for any cause, ineligible to be chosen? By what process was Mr. Sloanaker elected? Did he receive an actual majority of the votes given at the election? Were legal votes offered for him, adequate to have procured his election, and rejected by the judges and inspectors? In short, how, in point of fact, is it, that the returned candidate was not elected, and he to whom the return was

(Requisites of a petition to contest an election.)

denied chosen? Instead of stating the facts from which these conclusions arise, this part of the complaint contains a simple assertion, that the returned candidate was not duly elected; and a simple assertion, that the candidate not receiving the return was duly elected. On the principles we have propounded, this allegation is insufficient.

The second allegation, which asserts the election to have been undue, and the return false, is manifestly insufficient, and for the reasons heretofore given.

The third allegation avers that many illegal votes were received and counted for Skerrett, and that it was by these illegal and fraudulent votes, and by the illegal mode of counting the tickets, and by other irregularities and illegalities, that a majority has been made to appear in favor of said Skerrett. Had the complainants stated, in terms, that it was by the receipt of illegal votes that Skerrett's majority was produced, this allegation might have had some claim to the necessary precision. This is not so; it is because of the many illegal votes given to him, and because of the illegal manner of counting the votes, and because of other "irregularities and illegalities," that Skerrett is made to receive a majority. How are we to learn from this, what influence the many illegal votes had in producing the result? What flowed from the illegal manner of counting the votes? And what is chargeable to other "irregularities and illegalities?" Many illegal votes may mean tens or hundreds. Mere illegality in the manner of counting votes, cannot, as we have said, invalidate an otherwise fair election, however it may subject, and justly too, the offending officers to punishment. And "other irregularities and illegalities" is too vague to carry any definite meaning. This specification is compounded of various elements-some formal, some substantial; some that would have been material, if more explicitly set forth, and others wholly immaterial in an inquiry into the merits of an election. It is, therefore, most clearly

(Requisites of a petition to contest an election.)

wanting in that precision and directness which ought to enter into such a complaint.

The last specification, if it could be so called, states simply what would be the result of the inquiry prayed for. It says that Sloanaker was duly elected, as will appear by recounting the ballots voted by the qualified electors; by an inquiry and investigation into the election; and the rejection of the illegal and fraudulent tickets, irregularly and illegally received and counted for the said Skerrett. But if we should treat it as an attempt at a specification of the facts on which the investigation is asked, it must share the common fate of its associates. It is vague, unprecise and argumentative; associating irregularities and illegalities; affording no sufficient notice to the returned officer of the grounds on which his election is assailed; and wanting in that clearness, plainness and succinctness which ought to characterize such a proceeding.

This will be more distinctly perceived, by considering it, disconnected from its congeners. The result asserted, viz: the election of Mr. Sloanaker, will appear, it is said, from a recount of the ballots voted by the qualified electors. It does not say, except inferentially, that there is any error in the count of the actual tickets voted, either from mistake or fraud of the officers. It does not point out the extent of the mistake, whether it amounts to one or one thousand votes; it does not say, where it occurred, whether in some particular district, or in the summing up by the return judges of the aggregate vote given in all the districts; and finally, it does not say, that there is any error in the actual summing up of the tickets deposited in the ballot-boxes, but the error, it supposes, may be discovered by a recount of the ballots voted by the qualified electors. The ascertainment of this would require the canvassing of every vote given, in order to arrive at this result, by the separation of the legal from the illegal voters. By an ingenious generalization, therefore, such

(Requisites of a petition to contest an election.)

an allegation would open the whole election; permit every kind of objection to be started against the votes given and received; and this, without any precise or specific averment being previously made against the propriety of their reception. To hold such a generalization adequate, would nullify our own doctrines, and render precision in specification unnecessary.

But this conjectural insinuation of error in the count, is not assigned as the sole ground for the conclusion drawn, that Mr. Sloanaker is elected. It is associated with allegations "of illegal and fraudulent votes, irregularly and illegally received;" and the conjoint operation of the recount of the ballots, and the rejection of the illegal and fraudulent votes, irregularly and illegally received, it is supposed, will show Mr. Sloanaker to have been elected. What number of illegal and fraudulent votes were received; where they were received; how they were illegal; whether from non-age of the voter, non-residence, want of citizenship, or want of assessment or payment of taxes; is not intimated; and with the complaint of votes illegally given, is united a complaint of votes "irregularly" given. Now, we have seen, that mere irregularity in the reception of votes is not a meritorious ground of exception to an election. This specification, supposing it to have been intended as such, therefore, is at best, a mere summary of many of the objections given previously in detail, in the complaint, but in such a vague and general manner, as to be regarded by us as wholly insufficient. If inadequate in detail, they cannot be less so when united.

A specification which is nothing more than an hypothesis; a specification as to what would, in the opinion of the complainants, follow an investigation; is not the plain and clear statement of facts, on which an election is proposed to be contested, required by the true intent and meaning of the law. If the judges of any particular district, through fraud or mistake, have miscounted the votes given to any candidate; if the judges of any particular district have