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(Decision at the next term.)

was final; all that Judge Gibson says in that case is by way of argument in support of this proposition, and in my opinion does not apply to the question now before the court; nor does the point appear to have been even incidentally raised in the court above, unless the mere citation of the words of the law by the chief justice, in support of a totally different principle, are capable of such construction and application, which I think they are not. I am, for the reason stated, of the opinion that the case of the contestant is still in court for determination and final judgment on the merits.

Upon the question as to the proper entry to be made upon the record, where the court is equally divided on the question of jurisdiction, I do not deem it necessary to say more than that the case of Bingham v. Cabbot, 3 Dall. 18, cited upon the argument, by the counsel for the respondent, is to be regarded only as if a motion for a venire de novo had been made, which motion fell, because the court was equally divided upon the question as to whether the court below had jurisdiction of the original cause of action.

LUDLOW, J., dissented.

The point decided in this case was affirmed by a majority of the supreme court (Thompson, C. J., and Sharswood, J., dissenting), in Donegan v. Fletcher, 65 Penn. St. R. 21, where it was held that this provision of the law was merely directory; the dissenting judges, however, held that if the term expire without a determination of the contest, the proceedings fall as effectually as if the court itself had ceased to exist. Ibid. 47.


In the Court of Quarter Sessions of Philadelphia.


(REPORTED 1 Brewster 43.)


The contestant in a controverted election case, has no power to discontinue the proceeding; the question is one between the public and the incumbent of the office.

This was a petition by upwards of twenty qualified electors of the city of Philadelphia, contesting the election of Lewis C. Cassidy to the office of district-attorney of the county of Philadelphia, and alleging that William B. Mann had been duly elected to the said office. During the course of the proceedings, the legislature created an additional district-attorney for the said county, and William B. Mann having been appointed to that office, his counsel moved for leave to discontinue this proceeding.

THOMPSON, P. J., delivered the opinion of the court. The only question presented by the counsel of the respondent, upon his last argument addressed to the court, was, whether Mr. Mann, as the "next highest candidate" to the party returned, or his counsel, has the right, at the present stage of the proceeding, to terminate the case, by entering a discontinuance.

We entertain strong doubts whether, in a proceeding like this, which is not a suit inter partes, the common-law form of discontinuance, which a plaintiff alone can employ, is at all applicable. The proceeding is not a suit at law; the party receiving the next highest number of votes is not made a plaintiff; he is not liable to the costs of the proceeding, nor is he compelled to take any part in the inves


tigation; he comes in voluntarily, and may so depart when he pleases; the complaint is not made by him; his act has not subjected the county to the costs of the investigation, nor, however frivolous the complaint made, can he be rendered responsible, by the imposition of costs, or otherwise; he acts with entire freedom, and the position of a party in the trial, which the 150th section of the act of 1839 gives to him, imposes no duties upon him, not even that of becoming a party, as the same section provides for the introduction of another, as a party, in case of his absence or neglect. If he may discontinue the proceeding, he may do so at any stage of the investigation; but the law contemplates no such termination, as the 157th section of the same act gives the judges authority to certify that the complaint was without probable cause, and in such cases, imposes the costs upon the petitioners; this indicates an intention that the complaint shall be investigated, and imposes upon the judges the duty of so doing. If, without investigation, the case may, at any time, be stopped, by a discontinuance, what protection is there against causeless complaints, by which the party returned may be annoyed and put to heavy charges, the public business of the courts interfered with, and the citizens of the county subjected to the costs?

Nor does the analogous proceeding before a committee of the legislature point to this as the method of terminating the investigation. The oath administered to the members of such a committee is, "to try the matter of the petition, and to give a true judgment thereon, according to the evidence, unless the committee shall be dissolved." This seems to leave no option to the committee to discontinue the trial, whenever the candidate next highest in vote may desire it; he cannot thereby dissolve the committee; nor does such power vest in the committee itself; the body creating the committee would seem to possess the only power to dissolve it. We know not what practice may prevail in such investigations by com


mittees of the legislature, but it is evident, from the care which is manifested, in the provision for a full and fair trial, that such cases are to be regarded as important public matters, not to be commenced or terminated at the mere option of the individuals concerned in their results. The mere suggestion that, in any case, however undue the election or false the return, the candidate next highest in vote, who has come in as a party, may, for a consideration, be induced to enter a discontinuance, seems to demonstrate that such authority was not designed to be vested in him. The case is not his alone; public interests may require the investigation, though he decline to take further part in it. For these and many other reasons, which readily suggest themselves, we are strongly inclined to doubt the propriety, under any circumstances, of this method of terminating an investigation like the present.

But we are in no doubt as to the impropriety of recognising the discontinuance offered, as the case now stands. Mr. Mann became a party to this proceeding; he undertook to prove that great frauds had been perpetrated at the October election, and the language used by his counsel, Mr. Read, is, that "the whole evidence exhibits the most palpable frauds on the ballot-box."* He claims thus to have established much that he alleged to exist; and yet, because by an act of assembly, which his counsel declares has given him all he claimed, he is relieved from any further personal interest in the case, and has publicly withdrawn from it, it is asserted, that by his simple "discontinuance," he can relieve the court from all further duty of determining whether those most palpable frauds have had any effect on the validity of the election. Certainly, none would more truly rejoice to be relieved from the further consideration of this case, than the court be

* After the delivery of this opinion, Mr. John M. Read, the counsel for Mr. Mann, stated that his client wished the proceeding to terminate, and retired from the case.


fore whom it has "dragged its slow length along;" but that relief can only be obtained by a conscientious discharge of the duty imposed upon us, not by avoiding it. If frauds have been proved, how can we omit to examine into their effect? Why was the court applied to? Not, certainly, to ascertain only Mr. Mann's right to the office, for which Mr. Cassidy held the return; for that purpose, the law has provided a writ of quo warranto. This is not such a proceeding; the question here is, not between two individuals only, but it is, whether the voice of the people has been falsely and fraudulently misrepresented; it is a public question, not, as the counsel of Mr. Mann stated they considered it, that of a private individual contesting the seat for a public office. While, then, we cannot prevent the party who is satisfied, from leaving the case, we cannot recognise any right or power remaining in him, after his departure, to further interfere in the case; he came in voluntarily, and he departs without hindrance; we think his power over the case departed with him. The discontinuance, therefore, cannot be recognised. Discontinuance disallowed.

The principle of this case was recognised by the supreme court of California, in People v. Holden, 28 Cal. 139 (ante 491), where the court said, "theoretically the people alone are interested in the determination of the controversy involved in this case, and no court would be justified in enforcing, as against them, a stipulation made by the relator or his counsel, to their prejudice; the action is, in no legal sense, under the control of the relator; it was brought in the name of the people, and to enforce their will as expressed through the ballot-box, and not merely to redress the wrongs or enforce the rights of the relator." In the case of the Clinton County Election, it was ruled by Judge Woodward, that it is not in the power of a portion of the petitioners, in a contested election case, by withdrawing from the contest, to prevent an inquiry into the fairness of the election; 3 Penn. L. J. 166; and this was recognised as law in Kneass's Case, 2 Pars. 570. So, in Collings's Case, 2 Luzerne

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