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Leg. Obs. 57 (ante 513), it was said by Conyngham, J., that the petition "is not regarded as the complaint of the candidate; he cannot be permitted to withdraw it, nor in any way control it; if the alleged fraud, upon being proved, would apparently change the result of the election, unless the people, represented by the petitioners, agree to it, an-arrangement made between the different candidates could not be used to defeat the contest; it may be abandoned and withdrawn, if no one will come forward to prosecute it, but the candidate cannot so control it; it is not the right of the individual alone, who may be interested in the office, to defeat or set aside a fraudulent election; in him there may be a personal or pecuniary interest, but with the people there remains a public or moral right to act."
GIBBONS v. SHEPPARD.
In the Supreme Court of Pennsylvania.
JANUARY TERM 1870.
(REPORTED 65 PENNSYLVANIA STATE REPORTS 20.)
The supreme court has jurisdiction, on certiorari, to review the regularity of the proceedings of the court below, in a case of contested election, but not to rejudge the merits.
Where a statute requires the contestants to swear that the facts set forth in their complaint are true, it is enough, that they aver that they are true "to the best of their knowledge and belief."
The exercise of the power of amendment, in a contested election case, being a matter of discretion, is not reviewable on certiorari.
The refusal of the court below to quash the petition is not ground of error; so, a prayer in the petition to strike out certain returns, does not bring that question before the supreme court, the record not showing whether or not such returns were stricken out.
Certiorari to the court of Quarter Sessions of Philadelphia. These were petitions to the court of quarter sessions and court of common pleas of Philadelphia county, contesting the election of Furman Sheppard to the office of district-attorney of said county, and of the other offi
cers returned as elected at the general election held on the second Tuesday of October 1868, and alleging that Charles Gibbons was duly elected district-attorney, &c. The court below decreed in favor of the contestants, whereupon the respondents sued out writs of certiorari, and removed the record to the supreme court.
Phillips, Hirst and Biddle, for the respondents.
Rawle, Mann and Meredith, for the contestants.
AGNEW, J., delivered the opinion of the court. These are important cases; they are political controversies; to be regretted, yet, for this reason, to be met in a spirit of candid inquiry. The contest of an election is a remedy given to the people, by petition for redress, when their suffrages have been thwarted by fraud or mistake; the constituted tribunal is the court of common pleas or the quarter sessions, as the case may be. By the acts of 2d July 1839 and 3d February 1854, the court is to "proceed upon the merits of the complaint, and determine. finally concerning the same, according to the laws of this commonwealth." No bill of exceptions is given to its decisions nor appeal allowed, and its decisions are final; consequently, the supreme court has no jurisdiction over the subject.
The attempt to press into service the act of 1867 (Purd. Dig. 1496), as giving an appeal, lacked the earnestness of conviction, and needs no refutation; it gives no appeal, while the appeal given on the receiver's account, excludes the presumption that any other appeal was intended; the finality of the acts of 1839 and 1854 remains, and there is no implication of an appeal, for there is no incongruity in this respect. It is only in case of a strong repugnancy, that a former law is repealed by a subsequent act. Street v. Commonwealth, 6 W. & S. 209; Bank v. Commonwealth,
10 Penn. St. R. 448; Brown v. County Commissioners, 21 Ibid. 37.
Why, then, have the merits been so strongly urged? Why have the cases been termed appeals, and the parties appellants and appellees? Nothing but confusion can flow from these designations. The certiorari is a wellknown writ, bringing up the record only; the parties are plaintiffs and defendants in error, and not appellants and appellees; the argument on the facts was, therefore, outside the record. That the merits belong exclusively to the court below, and cannot be reviewed here, is a settled question; Carpenter's Case, 14 Penn. St. R. 486; the court there quashed the certiorari, Gibson, C. J., saying, that "having no appellate jurisdiction, it would not be respectful or proper to express an extra-judicial opinion on the regularity of the proceedings." In like manner, this court quashed the certiorari in Ewing v. Filley, 43 Penn. St. R. 384; "our duty," said Lowrie, C. J., "is a very restricted one; for, as is admitted, we cannot re-try the case on the evidence, but can only consider whether it was tried before competent authority and in proper form." This is very plainly stated by Woodward, J., in Chase v. Miller, 41 Penn. St. R. 412-13 (a contested election case); after explaining our general power of review, he says, "but this statement is to be received with a very important qualification, that the errors to be reviewed shall appear on the record; this is necessary to all appellate jurisdiction, where cases come up by writs of error or certiorari; the only mode provided by law for bringing evidence, or the opinion of an inferior court, upon what is technically called the record, is by a bill of exceptions, sealed and certified by the judges, and as bills of exception are not allowed in the quarter sessions, no question which arises out of the evidence in that court, can be got up into this court; hence, while certiorari lies to the proceedings of the quarter sessions in road cases, in pauper cases, in contested election cases, and in other statutory
causes committed to the jurisdiction of that court, the writ brings up nothing but what appears on the record, without a bill of exceptions."
That neither the testimony nor the opinion of the court is brought up with the record, by a certiorari, has been reiterated over and over again. I refer to a few of the recent cases, to show that we have not departed from the doctrine of our predecessors: Commonwealth v. Gurley, 45 Penn. St. R. 392, opinion per Thompson, J.; Church Street, 54 Ibid. 353 (road case), per Thompson, J.; Oakland Railway Co. v. Keenan, 56 Ibid. 198 (justice and jury on sheriff's sale), per Woodward, C. J.; Plunkett's Creek v. Fairfield, 58 Ibid. 209 (pauper case), per Strong, J. In Pennsylvania Railroad Co. v. German Lutheran Congregation, 53 Penn. St. R. 445, a strong effort was made to get before us the merits of a view and assessment by a railroad jury, and the subject was again examined elaborately and the same conclusion reached. The strenuous effort to induce us to review the testimony, calculations and opinion of the court in these cases was, therefore, contrary to the settled law of the writ of certiorari; this excludes from our consideration the report of the examiner, all the calculations, and all the court did either by striking out or purging polls; they are not in the record, and all assignments of error founded on them fall.
Putting aside, then, these lures to error, the remaining assignments may be treated under three heads: those affecting jurisdiction; those relating to the procedure of the court; and those relating to the frame of the complaint. The first, involving the jurisdiction, is the oath to the petition; this concerns the city officers only. The act of 1854 requires that "at least two of the complainants shall take and subscribe an oath or affirmation, that the facts set forth in such complaint are true;" the oath to the petitions reads "that the facts are true, to the best of their knowledge and belief." This addition, it is asserted, lessens the strength of the oath; that the law requires the
absolute truth of the facts to be sworn to, and not the
Does the law
best knowledge and belief of the affiants. mean absolute verity? this is the question. The intention of the lawgivers must be discovered not only from the words, but from the object of the law, the special purpose of the oath, the nature of its subject, and the character and jurisdiction of the tribunal. The object of the law is to give the people a remedy; it is their appeal from the election board to the court, from an undue election or false return; the law is, therefore, remedial and to be construed to advance the remedy. The special purpose of the oath is to initiate this remedy, to give it the impress of good faith and probable cause; the proof of the facts must follow, not precede the complaint; it is contrary to our sense of justice, and to all analogy, to say, that a remedy shall not begin till the case has been fully proved. The law being remedial, and the oath initial only, it is not to be supposed, the legislature, representing the people, intended to subject the remedy to unreasonable or impossible conditions; the remedy would be worthless and the legislature stultified; correct interpretation will shun this result.
This brings us to the subject of the oath; in a city of 800,000 inhabitants, embracing a surface of many square miles, no two nor two hundred men can be invested with the ubiquity and the omniscience to see and to know all the facts, in every precinct, necessary to contest the whole poll of the city; nay, they could not, from personal knowledge, contest the poll of a single ward. Besides, there are essential facts which they cannot know personally; they cannot pry into the ballots; they may believe, or may be credibly informed, that 153 unqualified persons voted a certain ticket, but they cannot know it; yet this knowledge is essential to the contest. Their knowledge, to be personal, must be as ubiquitous as the fraud, and as thorough as the whole number of voters, their residences, qualifications and ballots, and comprehend all the unlawful