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record where the court is equally divided in opinion on a question of jurisdiction?" The precise point raised by the question was, however, abandoned practically by the counsel on both sides; and the question considered by them, and to which the attention of the court was mainly directed, was, what is the true and proper construction of the 5th section of the act of 2d July 1839, providing for the election of prothonotaries, &c., under which law the petition of William C. Stevenson was filed in this court?

The difficulty which has arisen in the cause is, as to the true intent and meaning of the clause of the said section which says, "and the court shall hear and determine such contested election at the next term after the election shall have been held." It is contended, that this is imperative upon the court, and that if the election contested shall not have been determined before the expiration of the next term, the case falls for want of further jurisdiction. In the construction of statutes, affirmative words enjoining the performance of an act by a public officer, are generally regarded as directory only; negative words make a statute imperative, and it is apprehended, affirmative may, if they are absolute, explicit and peremptory, and show that no discretion is intended to be given. Dwarris on Statutes 175. If, to the clause under consideration, the words "and not after," had been added, we would have a perfect illustration of the principle stated; these words of negation would convert that which, in its ordinary signification, is but directory, into a command, taking from the court all discretionary power, by the use of language imperative and compulsory. It would require the clearest possible case, where the language used was affirmative only, under the well-settled rules of interpretation of statutes, to justify a court in holding such language to be imperative; in the words of Dwarris, just cited, it must be absolute, explicit and peremptory. In the act now before us, the distinction is clearly taken by the legislature (no better illustration could be cited), where it says, "and such complaint

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shall not be valid, or regarded by the court, unless the same shall have been filed in the prothonotary's office, within ten days after the election." Here is a clear limitation upon the power of the court; the language employed leaves no door open for question or doubt; "shall not be valid or regarded by the court," has but one signification; it negatives the power to take action on the complaint, by the use of language absolute, explicit and peremptory, unless the condition precedent has been complied with.

In the case of People v. Cook, 14 Barb. 293, the principle is stated thus: statutes directing a mode of proceed ing of public officers are regarded as directory, unless there is something in the statute which shows a different intent: so also, in People v. Allen, 6 Wend. 486. A statute which requires a public officer to perform an official act respecting the rights and duties of others, is directory merely, unless the nature of the act to be performed, or the language used by the legislature, shows that the designation of the time was intended as a limitation of the

power of the officer. Lord Mansfield, in Rex v. Loxdale, 1 Burr. 447, says, "there is a known distinction between things required to be done by act of parliament, and clauses merely directory;" in Rex v. Sparrow, 2 Str. 1123, the appointment of overseers was held to be valid, though made after the time designated in the act; the statute 54 Geo. III. prescribed the times of holding courts of quarter sessions; it was decided that quarter sessions held at other times were always considered good; so also, the statute of 43 Eliz. directed apprentices to be bound out until 24 years of age, yet a binding, under the statute, until 21, was held to be good. Under our election laws, the ruling has been frequent and uniform, in this and other courts, that numerous requirements of the law, enjoining upon election officers the performance of specific acts, when not coupled with a question of fraud, are regarded as directory merely, and not to vitiate the election when

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omitted to be done, or when the act itself is imperfectly performed or performed out of time.

The third section of our habeas corpus act provides that if any person committed for treason or felony shall not be indicted and tried in the next term after such commitment, it shall be lawful for the judges or justices, and they are thereby required, to set at liberty such person, on bail. The language here used is imperative, "and they are hereby required;" yet, it was held, in Commonwealth v. The Jailer, 7 Watts 366, that a person laboring under an infectious disease was not entitled, of right, under this section, to be tried at the next term; other exceptions are recognised in 16 S. & R. 304; 2 Whart. 501; and 1 Dall. 9. The eighth section of the same act imposes upon any judge or justice who shall, on application, refuse or neglect to award a writ of habeas corpus, a penalty of £300; yet, the supreme court, in Ex parte Lawrence, 5 Binn. 304, the case of Passmore Williamson, 26 Penn. St. R. 9, and the more recent case of Williamson v. Lewis, 39 Penn. St. R. 9, construed this section to mean, that judges were not bound, on every complaint of illegal restraint of liberty, to allow the writ. These latter instances of the construction which has been given to statutes, are strongly in point, for they are statutes in favor of the liberty of the citizen; in one, the language is that of command, and in the other, a penalty is imposed for a refusal to obey the requirements of the law.

Upon the argument, our own statutes, relating to writs of quo warranto and certiorari were cited in support of the view taken by the contestant. The same language, in substance, is used, as in the act under consideration; "and the court shall, at the term to which the proceedings of the justices of the peace are returnable in pursuance of writs of certiorari, determine and decide thereon." The practical construction given to these acts, by this and other courts, has not limited the power of the court to the term to which these writs are made return

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able; it is, however, but due to the cause, to say, that no reported case was cited in which the question had been considered and decided. These authorities, to my mind, settle clearly the point, that the language employed in the act of 2d July 1839, requiring the cause to be decided at the next term, is but directory, and ought to be so regarded, unless there be something in the statute which shows a different intent, and would therefore require us to give it a different construction.

The first element to be extracted from this or any other statute, in our search after its true signification, is to ascertain, if we can, its spirit and intent. The object to be obtained is, to enable the court of common pleas to inquire, determine and judge of an undue election or return, upon the complaint of thirty or more qualified electors; the court are enjoined, in judging concerning said election, to proceed upon the merits, and determine upon the same, according to the laws of this commonwealth; then follows the clause upon which the court differed in opinion,* "and the said court shall hear and determine such contested election, at the next term after the election shall have been held." The design of the law is, to secure an investigation of a matter in which the citizens generally, and the candidate claiming title to the office by election, are deeply interested. Questions are involved in such an issue, of the gravest importance, affecting alike the highest principles of honesty and fair-dealing between man and man, the purity of the ballot-box, and the vindication of the elective right of the citizens of the commonwealth; to guard these rights, each of them sacred and worthy of legislative protection, the court are enjoined to investigate the merits of the case, and finally determine the same according to law. This, I hold, is the material intent of the legislature, to be secured only by a final determination

* The court divided politically; the judge coincided in opinion with his political associate; and the point was affirmed in the supreme court by a political majority of the same views.

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of the case in court; but inasmuch as they directed that a commission should not issue, upon a contest being certified to the governor, until the court should have determined and adjudged on the complaint filed, they directed the court to hear and determine the same at the next term.

But suppose, as in this case, the court, for good and sufficient reasons, do not or cannot hear and determine the complaint within the time designated-what then? Is the law, as to the case already in progress before the proper tribunal, to be regarded as a dead letter? Are the citizens and contestants alike to be turned away, and told that the stroke of the clock has paralyzed the arm of the court, and that they must go without remedy for an alleged violation of public and private rights, because that which was not of the essence of the thing to be done has not been complied with by the officer of the law, either with or without cause? I think not; I can gather no such meaning from the act, and can regard the command as to time only in the light of an injunction to the judges to speed the cause, and at the next term, if possible, fulfil the material requirements of the law, by finally determining the case upon its merits. Any other view, it seems to me, reverses the natural order of things, prefers the unimportant to the material, gives to the minor consideration, namely, the time within which a decision is to be rendered, precedence of the more substantial and weighty matters of the law, under consideration; for certainly, it is far more essential that the court shall decide the main question, than allow it to fall dead before the judges, who are enjoined to decide upon it finally and upon its merits, by language quite as explicit as that used to indicate the time within which it ought to be determined.

Carpenter's Case (14 Penn. St. R. 486) seems to have been relied on in support of a contrary view, but that case decides nothing more than that the supreme court had no revisory power, by certiorari, of proceedings under the act of 2d July 1839, and that the decision of the common pleas

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