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(Requisites of a petition to contest an election.)

received illegal votes, or rejected legal votes; if the operation of all or any such errors, omissions or commissions has changed the true result of the election, it is easy to say so, designating where and how they have been perpetrated. But it would be intolerable, if this or any court should entertain a complaint impugning, in a sweeping denunciation, all the acts and doings of a whole county election, without containing any intimation as to when, where, how and by whom, such malversations have been perpetrated.

At the election we are called to disturb, on this vague complaint, 40,000 freemen deposited their suffrages; it was conducted by about 300 sworn officers, chosen by the people for this purpose, comprising gentlemen of all party complexions; surely, before we stir in such a business, a complaint, precise in its terms, definite in its charges, and adequate in its general character, if proved, to vacate the election, should be laid before us. Although it is certainly true, that it is of the first importance that the citizens should be satisfied of the integrity of all public elections, and although all proper facilities should be afforded to ferret out frauds, where they are supposed to exist, yet, an election solemnly held, is not to be trifled with by any, be they judges or citizens. What has been done by the sworn agents of the law, is always to be presumed rightly done; and those who seek to impeach the acts of these functionaries, must not expect to be entertained, if, instead of bringing positive, tangible and direct charges, they content themselves with general, argumentative and theoretic imputations.

In the opinion of the court, and for the reasons assigned, this complaint must be quashed.

Petition quashed.

Whilst the principle established in Skerrett's case has ever since been recognised as the law of Pennsylvania, it is in vain to deny that it has occasionally been departed from in practice. So long as the judicial

(Requisites of a petition to contest an election.)

tenure is for a limited term of years, and the judges to whom this delicate jurisdiction is confided are dependent upon a partisan nomination and a popular election for their continuance in office, it would require more than human virtue and independence, at all times, to hold the scales of justice with an even hand, in cases appealing so strongly to the political prejudices of themselves and those upon whose votes their tenure of office is dependent.

In Carpenter's Case, 2 Parsons 537, it was held, that unless a petition contesting an election set forth such facts as would change the result, the court will not entertain it, nor order an investigation; the court assimilate such petitions to other legal proceedings, and require that precision in averment which is demanded in other cases, where the court decides both the law and the fact; if the ground be fraud, the petition must state with precision in what the fraud consists, and must show how it changed the result of the election, otherwise, it will be quashed, on motion; and this, on the ground that whatever is done by persons de facto exercising a legal authority, is presumed to be done rightly. It is not sufficient to state that A. received a majority of the votes, while the return was given to B., and therefore, the complainants allege that there was an undue election; this is but a conclusion drawn by the petitioners from facts not stated to the court. The same point was ruled in Lelar's Case, cited in 2 Parsons 548.

In Kneass's Case, 2 Parsons 553, it was ruled, that every petition alleging an undue election and false return, must be complete in itself, and state such ground as would, if sustained by proof, be cause for rendering it void, or declaring another elected; where some of the grounds alleged are mere irregularities which, if sustained by proof, would not be sufficient cause for setting aside the election, such specifications will be stricken out, on motion, and the respondent will not be put to the trouble of taking proof. And see Batturs v. Megary, 1 Brewst. 162; Thompson v. Ewing, Ibid. 68. In Mann v. Cassidy, 1 Brewst. 11, it was held, that the petition must state the facts distinctly; charge an undue election and false return; show the figures returned for each candidate; the votes which were received by each; and then specify the divisions in which the votes were illegally received, the manner in which the fraud was effected, and the number of votes fraudulently received; but the petitioners need not set out their full knowledge, the names of the illegal voters, nor the reason why the votes were illegal.

(Requisites of a petition to contest an election.)

An allegation of fraud committed by the election officers is immaterial, unless it be also stated that the result has been affected; nor is it sufficient to aver that votes were fraudulently received, unless it be stated for whom they were polled, and the number. Ibid.

In Weaver v. Given, 1 Brewst. 140, the same court decided, that all that can be required in a petition is, that the allegations be stated in an intelligible manner, and with due precision; that a statement that a certain number of votes was received, in divisions named, from persons not qualified, and that they were counted for one of the candidates, was sufficiently certain; and that the reasons on which the charge of illegality is based, and the names of the voters, need not be given. Gibbons . Sheppard, 2 Brewst. 2; 65 Penn. St. R. 36. That the names of the illegal voters need not be stated was re-affirmed, in Batturs v. Megary, 1 Brewst. 162; and it was there also decided, that a specification may charge the receipt of illegal votes in two or more divisions. And see Gibbons v. Sheppard, 2 Brewst. 2; 65 Penn. St. R. 37.

The last decided case upon this point is that of Gibbons v. Sheppard, in the supreme court of Pennsylvania, where it is said by Mr. Justice Agnew, that certainty to a common intent is all that is required; that the early decisions by Judge King were too stringent; that the rule must not be held so strictly as to afford protection to fraud, by which the will of the people is set at naught, nor so loosely as to permit the acts of sworn officers chosen by the people to be inquired into without adequate and well-defined cause. 65 Penn. St. R. 36-7; Mann v. Cassidy, 1 Brewst. 26-7.

In the senate of Pennsylvania, the same rules, as to the precision requisite in a petition contesting the seat of a member, have been adopted in several cases. In Chapman's case, in 1844, a committee consisting of Messrs. Sterigerè, Darsie and Penniman, reported that the petition was insufficient because of the omission of the petitioners to set out the fact of illegal votes having been given, where given, and by whom; and their report was adopted by the senate. 1 Senate Journal 1844, p. 88. In the case of Diamond v. Watt, the committee struck out no less than fifty-four specifications, for insufficiency, holding them to be too vague and indefinite. Legislative Doc. 1870, p. 1061-2. And finally, in Dechert's case, a special committee, of which Mr. Buckalew was chairman, decided that the senate is only required to send to a committee for trial, a question of real disqualification of one of its members,

(Requisites of a petition to contest an election.)

arising upon an undue election or false return; and is neither required nor authorized to send a question for trial, which can, by no possibility, result in establishing a disqualification for membership in the sitting member. In its judicial capacity, therefore, the senate, judging of the sufficiency of a case presented by a petition, will order it to be tried in the constitutional manner, only in a case where, upon its being sustained, the result will be disqualification of membership. 16 January 1871. And see to the same effect, Cushing's Lex Parl. Am. § 150.

The law has been held otherwise in Ohio; Howard v. Shields, 16 Ohio St. R. 184; and in Kansas, it is not necessary that a notice of contes should aver that the causes alleged would have changed the result; Steel v. Martin, 5 West. Jur. 33; but in Minnesota, under a law requir ing a person who contests an election to give notice "of the points on which the same will be contested," the notice must specify the grounds on which the plaintiff relies; Taylor v. Taylor, 10 Minn. 107. And in Louisiana, where the statute requires the contestant to set forth specially all the grounds of contest, if it be on account of the alleged violation of a particular law, he should specify what provisions of such law have been violated. Augustin v. Eggleston, 12 La. An. 366.

In Pennsylvania, under the act of 1839, which requires that the facts set forth in the petition should be verified by the affidavit of two qualified voters, it must be sworn to by two of the petitioners; an affidavit by two other voters will not satisfy the requirements of the law. Clark's Case, 2 Parsons 521. But under a statute which requires an affidavit that the facts set forth in the petition are true, it is sufficient that the petitioners aver that the same are true "to the best of their knowledge and belief." Gibbons v. Sheppard, 65 Penn. St. R. 20. The petitioners must subscribe the petition; it is not enough, to obtain their signatures to a blank sheet of paper, and subsequently to attach the same to the petition, even with their assent; under such circumstances, the petition will be quashed. Northumberland County Election, 1 Phila. 446. The petitioners, however, will not be allowed, subsequently, to withdraw their names from the petition; after the jurisdiction has attached, it becomes a public contest. Clinton County Election, 3 Penn. L. J. 160, 166; Kneass's Case, 2 Parsons 570-1.


In the Court of Quarter Sessions of Philadelphia.



[Amendment of petition.]

If a petition, contesting an election, be defective in matter of form or of substance, it may be amended, provided the application to amend be made at the earliest possible opportunity.

The amendment need not be signed by all the original petitioners; it is enough, that it be presented by the number required by law to unite in an original petition, and duly verified.

This was a petition complaining of an undue election and false return of Horn R. Kneass, for the office of district-attorney for the city and county of Philadelphia. On return of the citation, the counsel for the respondent moved to quash the petition, on the ground that there were no specific charges of fraud, and no allegations of an undue election or false return sufficient to set aside the election, and that the petitioners did not state how or in what respect the result would be changed. Before argument of the motion to quash, the counsel for the petitioners moved for leave to amend the specifications, by inserting the number of votes returned for Mr. Kneass, and the number for Mr. Reed, the opposing candidate; also by averring the majority alleged to be had for Mr. Kneass, and that it was false and fraudulent; it was also proposed to amend by attaching a copy of the entire return as filed in the office of the prothonotary.

Meredith, Williams and Campbell, for the contestants.

Hirst and Dallas, for the respondent.

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