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(Appellate jurisdiction.)

acts of every election board. In this instance, 120,000 votes were polled in 266 precincts; now, it is simply impossible that two, nay, all the fifty petitioners, could personally know the facts necessary to contest the poll of the entire city. The legislature did not mean this vain thing; lex non intendit aliquid impossibile; lex nil facit frustra―nil jubet frustra. It is the duty of a court to construe a statute, if possible, ut res magis valeat quam pereat. Huber v. Reily, 53 Penn. St. R. 115,117. These principles have been stated with much force, and with reference to the highest authority, in Schuylkill Navigation Co. v. Loose, 19 Penn. St. R. 18-19. The case comes then to this point; the oath must be made from credible information, or not at all; in the poll of such a city, the affiant cannot swear to more than to the best of his knowledge and belief; it would be an imputation on the framers of the law to think otherwise. The argument that no indictment would lie for perjury upon this form of oath, is fallacious; if the oath mean an oath in this form, then the oath in that form is an oath authorized by law, and an indictment for its corrupt. and wilful breach will lie.

We must consider also the tribunal to hear and decide on the petition. It is a high constitutional court, competent to decide on its own jurisdiction; its jurisdiction. being exclusive and final, it necessarily decides it for itself. There was no omission of anything to confer jurisdiction; the petition came from the requisite number of qualified voters, was presented in due time, and its truth was sworn to by two of their number; the court having a rightful and general jurisdiction over the subject of the petition, assumed it, heard the proofs, found the facts alleged to be actually true, and set aside the return as false. Now, after a decision on the merits, which have been established on sufficient evidence, can we oust the jurisdiction, for an alleged error in the interpretation given to the language of the oath? This would be dangerous ground to take. The law does not prescribe the form of the oath; it cer

(Appellate jurisdiction.)

tainly was for the court, in judging of its own jurisdiction, to interpret the words of the affidavit; it did so, heard the case, found the facts to be true, and decided on the merits. See Carpenter's Case, 14 Penn. St. R. 486; Overseers of Tioga v. Overseers of Lawrence, 2 Watts 43; Plunkett's Creek Township v. Fairfield Township, 58 Penn. St. R. 209.

The question as to the power of the city recorder to administer the oath, stands on the same footing; it was a question which the court below necessarily decided for itself. There was an oath actually taken and certified; the officer certifying it had power to administer oaths; his commission was conferred by the governor, by and with the consent of the senate, for a term of years and during good behavior; his character is also recognised as magisterial. Rhodes v. Commonwealth, 15 Penn. St. R. 277. By the act of 1817, he has authority to take proof of deeds and other writings, and to issue writs of habeas corpus and give relief thereon, as fully as the president of the common pleas; these powers imply his authority to administer oaths, without which he could not swear the witnesses. The act of 31st March 1860, punishes perjury committed upon an oath taken before the recorder, classing it with oaths taken before any judge, justice, alderman, &c., before whom oaths may be taken. The court of common pleas had decided also, that he had the authority to administer oaths. Schuman v. Schuman, 6 Phila. 318. Thus, being a commissioned officer, and having power to administer oaths, by his certificate of probate to the petition, he asserted his authority to administer that oath; prima facie, therefore, the oath was regularly made and being accepted, was before the court.

The court having a general and rightful jurisdiction over the subject of the petition, assumed it, and in so doing, decided the affidavit to be sufficient; it is not the case of the absence of any affidavit, but is the case of an affidavit prima facie regularly made. Now, after having possession of the case in a manner clearly legal and regular,

(Appellate jurisdiction.)

at least, to a prima facie extent, and after having heard the case on its merits, and found the truth of all the facts necessary to a case on the merits, how can we go behind. the certificate of the recorder, to inquire whether his conceded authority to administer oaths extends to this proceeding? The oath was only necessary to initiate the proceeding, which has now been proved, by sufficient evidence, to be well-founded and true; if we can go behind his certificate, after a decision on the merits, no proceeding is safe; we may as well inquire whether all the petitioners were qualified voters, and if we find one disqualified by non-residence, non-payment of taxes, or a defect in his naturalization certificate, set aside the whole proceedings. This would be a dangerous doctrine, and opposed to the principles decided in the cases just referred to.

The correctness of the oath in these cases is supported by that required to contest the election of the governor, members of assembly, judges, county officers, &c., to wit, that the "facts stated in this petition are true, to the best of their knowledge and belief." It cannot be supposed, the legislature meant to exact severer terms in order to contest an election of city officers; indeed, to require an impossible condition. But analogies are appealed to; it has been decided, that an appellant from an award must swear that he firmly believes injustice has been done, and less will not suffice; this is true, but the difference lies between knowledge and belief; it is not unjust to require of a suitor, knowing his own case, a firm belief of injustice; on the other hand, suppose we were asked to say, that the appellant must swear to the absolute truth of injustice, and thus compel an ignorant man to swear to the law as well as the facts? This would be unreasonable; and it is quite as unreasonable to ask a man who cannot know all the facts, to swear absolutely to the illegality of voters, for whom they voted, the law of residence, of suffrage, and of the duties of election officers, and all else that is necessary to actual knowledge of an undue election.

(Appellate jurisdiction.)

Nor is the argument good, that the act of 1806 requires the direction of the act of 1854 to be strictly pursued. Before a statute can be pursued, we must know what it requires; if the law require personal knowledge, the oath must be so; but this is the very question to be decided, and it is illogical to tell us it means personal knowledge, because it must be strictly pursued. What does the act of 1854 require? personal knowledge of every fact averred, or only knowledge to the best of reliable information and belief? If personal knowledge be not required, that ends the question; and all the numerous authorities cited, to show how strictly a statute must be pursued, are inapplicable.

Nor can the petition be likened to a response in chancery; it is not a proceeding to compel a discovery of facts known to the party, but is simply a complaint to initiate an inquiry in good faith. Its foundation can be reliable information only, and therefore, not absolutely, but credibly true. In conclusion, on this, the only serious question, we have ample authority so to construe the act. "As to the construction of statutes, it is certain, that they are not always to be construed according to the letter." Bank of North America v. Fitzsimons, 3 Binn. 356. "Acts that give a remedy for a wrong, are to be taken equitably, and the words shall be extended or restrained according to reason and justice, and according to their end, though the words be short or imperfect." Schuylkill Navigation Co. v. Loose, 19 Penn. St. R. 18; citing 2 Inst. 152, 249, 395, 572, and Hob. 157, 299. The word "void" has been held to mean "voidable;" Braddee v. Brownfield, 2 W. & S. 280; "or" to mean "on;" Levering v. Railroad Co., 8 W. & S. 463; "or" has also been held to mean "and;" Foster v. Commonwealth, Ibid. 79–80.

Was the jurisdiction lost by the expiration of the term, in the case of the prothonotary? In this respect the law is directory only; the act to be done is judicial, and not ministerial. The court cannot "proceed on the merits"

(Appellate jurisdiction.)

of the contest, without time to take the testimony, and to hear and decide; if the testimony be voluminous, as it must be to correct so large a poll, the merits cannot be reached without time, nor can the merits be reached, if delayed, as here, by dilatory motions. It would be a harsh construction, to defeat its own purpose, by requiring an impossibility of the court; analogies are against it. Commonwealth v. Sheriff, 16 S. & R. 304; Ex parte Walton, 2 Whart. 501; Commonwealth v. Jailer, 7 Watts 366; Clark v. Commonwealth; 29 Penn. St. R. 129. In these cases, a similar limitation was held not to oust the jurisdiction of the court, and it was said, "there is no doubt. that necessity, either moral or physical, may raise an available exception to the statute." The act of 1810 requires certioraris to justices of the peace to be decided "at the term to which the proceedings are returnable;" yet, what lawyer ever heard that a certiorari fell with the expiration of the term? It would be a mockery of justice, were the people to be told, when seeking redress against dishonest servants, that the voice of the judge is silenced in the midst of his sentence, or the uplifted arm of the law struck down, by the stroke of the clock; the matter has been well stated by Allison, J., in Stevenson v. Lawrence, 1 Brewst. 134-5 (ante 532).

The next head is the alleged errors of procedure. The power of the quarter sessions to appoint an examiner is questioned; this affects the case of the district-attorney only. The constitution and power of the court of quarter sessions, under the organizing act of 16th June 1836, leave no doubt of its power to take depositions, and consequently, to appoint examiners for this purpose; this is the practice in road and pauper cases. The quarter sessions is classed with the other courts, in this act, in respect to many of its powers; and the 21st section enacts that "each of the said courts shall have full power and authority to establish such rules for regulating the practice thereof, and for expediting the determination of writs, causes and proceed

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