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(Rejection of polls.)
might subject him to a criminal prosecution; and when asked, whether any other persons acted as clerks in preparing the returns, on the night succeeding the election, in the Virginia precinct, he refused to answer for the same
This is, substantially, the character of the testimony of all the officers who conducted the election, on this point. One of them swears that he cannot account for the names appearing in alphabetical order on the poll-books, from A to Z, and from Z to A, but thinks that men voted in that order, a thing impossible and incredible. Another of these judges of election swears, that they stopped counting the ballots about midnight, and lay down on the benches and slept until daylight; that they left the ballotbox there unsealed; that at daylight, they resumed counting, went to breakfast at the usual hour, and left the ballot-box in the house; other persons were in the house; this witness, when asked whether he numbered all the ballots that were put in the ballot-box that day, refused to answer, because it might criminate him, and asked the protection of the court; and yet, this judge of election says, he was the one whose duty it was to receive the ballots and put them into the ballot-box. He refused to answer whether he put in 1000 ballots, because it might criminate him, but thought he might have put in 800; was quite certain he put in 600, but could not say that they were all legal votes. Another of these election officers swears, that the names of the voters might have been called off, by some person having a list of them outside, and the ballots handed in, through the hole, by this person; another witness swears, that he voted through a hole in the window, and could not see what was going on inside. And this is the class of testimony, running through 1000 pages or more of manuscript, from which the court is asked to rescue the legal votes, and decide that at least 453 legal votes were cast for removal in the Virginia precinct. The difficulty is, that these registers, poll-books, ballots and tes
(Rejection of polls.)
timony, are so contradictory, mysterious, evasive, false and fraudulent, that they are utterly unworthy of credit. If they could be personified, and put upon the stand as witnesses, and made to speak their contents, they would not be believed for a moment, in the lowest and most insignificant court in the country.
I think it may be fairly inferred from the evidence, that some time before the election, the leading spirits of Virginia, including many of her representative citizens, concocted a plan to carry this election by fraud or unfair means; and their only excuse was, that they feared Beardstown would be guilty of the same thing; and hence, a board of registry was selected to carry out this fraudulent purpose. The ballot-box, on the day of election, was stuffed with 2370 illegal votes; the poll-books and registers have, on almost every page, these badges of fraud; and the officers of the election have the effrontery to come forward and attempt to sustain it, by the most unblushing testimony that was ever heard in a court of justice. The law will presume everything against a set of men who are shown to be pursuing such a fraudulent and dishonest
But it is insisted by the respondent, that it is in proof, that 453 legal voters voted in the Virginia precinct for removal, and that they ought to be counted, notwithstanding the frauds perpetrated by the officers of the election; that a legal voter ought not to be disfranchised on account of the misconduct of an election officer. But there is no proof, outside of the poll-books, that 453 legal voters actually voted at that election; there is some proof, that this number resided in the precinct at that time, but the court cannot presume that they voted on the 9th April, much less, that they voted for removal. There is evidence, dehors the poll-books, that about 50 legal voters did actually vote for removal, in the Virginia precinct, and they should be counted; but there is no evidence, except the poll-books, that the 400 voted at all; their names might
(Rejection of polls.)
have been fabricated, for aught that appears, the same as the 2370 fictitious ones that were voted on that day. As I have remarked, the irregularities at the Virginia election, the fraud on the part of the officers conducting it, and those who were even to derive a benefit from its success, the unaccountable manner in which the names appear on the pollbooks, the contradictory and unsatisfactory testimony. introduced to support them, and the refusal, on the part of the perpetrators of this fraud, to give the court any insight into the labyrinth of uncertainties, renders these poll-books and ballots entirely unworthy of credit, and renders it impossible to count the legal votes and reject the illegal ones.
It is probable that Virginia, upon a fair and honest vote, could remove the county-seat; such a vote would be sanctioned by the law of the land, and endorsed by the moral sense of the community. Were I, however, to declare the result in favor of Virginia, upon these facts, it would, indeed, have the force and effect of law, but it would not be law. It would be allowing the majority, by fraud, to trample upon the rights of the minority; it would be an endorsement, by a court of justice, of one of the most stupendous frauds of modern times.
It is insisted by the respondent, that there were frauds committed in the Beardstown precinct, and so there were; but this did not justify fraud on the part of Virginia; the court cannot offset one fraud against another, and give the victory to the one committing the greatest fraud. But no fraud, on investigation, was charged upon the officers who conducted the election in Beardstown; it was proved that about 47 illegal votes were cast against removal by thirty-day men, and those naturalized in the county court, and they must be thrown out. So with the Lancaster precinct, 194 illegal votes were cast for removal, and these must be cast out; the court, in these two cases, has no difficulty in separating the true from the false.
(Rejection of polls.)
After rejecting the poll-books and other record evidence. of the Virginia precinct, and allowing it all the legal votes proved dehors the record (about 50), it leaves a majority against removal of 227 votes. It is due to the importance of this contest, to the able and distinguished counsel on both sides, and to the earnestness and zeal with which counsel for the respondent have urged their points, that I should have considered this contest well, carefully and at length; and while I may have erred, I have a consciousness of having done right.
Decree for contestant.
Perhaps no question which can arise in reference to the elective franchise has, in Pennsylvania, given rise to more diversity of opinion than the one discussed in Littlefield v. Green, namely, the circumstances under which the poll of an entire election division may be rejected; the one political party holding that it is only allowable where there has been no legal election, or where it is impossible to purge the poll of the illegal votes; and the other, that it is a matter of judicial discretion to determine whether the infractions of law on the part of the election officers were or were not sufficient to render their returns unworthy of credit; in other words, the one party would infringe as little as possible upon the chartered rights of the people, whilst the other would vest the whole political power in a partisan court.
In Mann v. Cassidy, 1 Brewst. 60, the doctrine of Littlefield v. Green, received the approval of the court; it was there said by Thompson, P. J., "that where the conduct of the election officers is such, as to destroy the integrity of their returns, and to avoid the primâ facie character which they ought to bear, as evidence, due and adequate proof must be demanded of each vote relied on." So, in Thompson v. Ewing, Ibid. 107, it is said by the same learned judge, that "the whole conduct of election officers may, though actual fraud be not apparent, amount to such gross and culpable negligence, such a disregard of their official duties, as to render their doings unintelligible or unworthy of credence, and their action entirely unreliable for any purpose." The same rule was enunciated in Weaver v. Given, Ibid. 140; and in Batturs v. Megary, Ibid. 162, it was held by Allison, P. J., and Peirce, J., that divisions
(Rejection of polls.)
in which the law had been entirely disregarded should be stricken out; but Brewster, J., held, that though the court possessed this power, it should only be exercised in the extremest case-where it was impossible to ascertain the true vote. In Gibbons v. Sheppard, 2 Brewst. 1, the court exercised this power, on the ground of gross infractions of the election law on the part of the officers; and the like action was had by the general assembly of Pennsylvania, in reference to the same election, in Thayer v. Greenbank, 1 Brewst. 189; and by the house of representatives of the United States, in Myers v. Moffet, Ibid. 230; but the notoriously partisan character of these decisions entitles them to little credit. The same remark is applicable to the case of Howard v. Cooper, 2 Cong. Elect. Cas. 275. The contrary doctrine was held by the senate of Pennsylvania, at the session of 1871, in Dechert's case, where it was asserted, that the dangerous and odious power of counting men in, or counting them out of their seats in the legislature, by the rejection of returns of district elections, held in due form of law, and at which legal votes were polled, has no more foundation in the laws of the commonwealth, than in the general principles of justice. "To reject the whole poll, because the inspectors failed to comply with every prescribed regulation, would be to place a higher value on the statute regulation, than on the right itself; it would be a sacrifice of substance to form." People v. Cook, ante 440.
It is beyond doubt, however, that there are causes for which it is the duty of the court to reject the polls of an entire division (Fry v. Booth, 19 Ohio St. R. 27); but the limit of this power is indicated by Chief Justice Thompson, in delivering the opinion of the supreme court of Pennsylvania in Chadwick v. Melvin (ante 256), where he says that "there is nothing which will justify the striking out of an entire division, but an inability to decipher the returns, or showing that not a single legal vote was polled, or that no election was legally held." (And see Powers v. Reed, 19 Ohio St. R. 207.) Thus, as in Chadwick v. Melvin, it is sufficient to reject the poll that the election was not held at the place designated by law; and to the same effect, is Knowles v. Yeates, 31 Cal. 82. So, if the polls were closed before the hour appointed by law; Penn District Election, 2 Pars. 526; or, if they were kept open after the legal hour, where enough votes were subsequently polled to have changed the result. Locust Ward Election, 4 Penn. L. J. 341. In these and other cases that may be imagined, it is evident there is either a failure to hold any legal election, or that the conduct of the officers has rendered it im