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GIBBONS v. SHEPPARD.

In the Court of Quarter Sessions of Philadelphia.

MARCH SESSIONS 1870.

(REPORTED 2 BREWSTER 117.)

[Rehearing.]

Where, in a contested election case, there was a decree for the contestant, whereupon the other party filed his petition, praying for a rehearing, on the ground of an erroneous computation of the votes, on the basis settled by the opinion of the court, and pending this petition, the cause was removed to the supreme court, by certiorari, where the decree was affirmed, the court being of opinion that the computation of the court below was not brought up with the record: it was held, that after the record had been remitted, the court below had power to hear the petition and correct any errors of computation in their decree.

In purging the polls, illegal votes are to be deducted from the entire vote, not from the majority.

A vote, prima facie illegal, must be disallowed, if the voter did not, at the time of offering it, produce the preliminary proof required by law.

This was a proceeding to contest the election of Furman Sheppard to the office of district-attorney for the city and county of Philadelphia at the general election held in October 1868.

The court of quarter sessions, on the 16th October 1869, made a decree in favor of the contestant; whereupon a writ of certiorari was sued out to remove the cause to the supreme court; but before any action was had upon the certiorari, Mr. Sheppard filed his petition for a rehearing in the quarter sessions, on the ground that there were errors in the computation of the votes for the respective parties, on the basis of the principles announced in the opinion of the court, which ought to be corrected. The court refused to disturb the decree, pending the certiorari; but the decree having been there affirmed, and the record remitted, the motion for a rehearing was renewed by the counsel for Mr. Sheppard.

(Rehearing.)

The contestant, thereupon, filed a bill in equity in the court of nisi prius, before Read, J., praying for an injunction to restrain further proceedings in the cause on the part of Mr. Sheppard; an ex parte injunction was granted, and the case came up on a motion to continue the same under final hearing.

READ, J., delivered the following opinion. The election of the second Tuesday of October 1868, in the city of Philadelphia, was fruitful of contested election cases. There was the contested election of a judge of the district court for the city and county of Philadelphia, tried and decided by a joint committee of the senate and house of representatives at Harrisburg; the elections in the 3d and 5th congressional districts were also contested in congress, one of which has been determined, and the other is still pending, if not recently decided. Besides these, there were seven contested election cases, tried before the president judge and his associates of the court of common pleas, either as holding that court or the court of quarter sessions; the contested offices were the mayor, districtattorney, city solicitor, city controller, receiver of taxes, city commissioner and prothonotary of the court of common pleas.

In the month of October 1868, petitions of qualified electors were filed in all these cases, complaining, in each of them, of a false return and undue election for the particular office. On the 14th November, motions were made, in all the cases, to quash the petitions, and were filed with reasons; these motions were argued together by Messrs. Rawle and Meredith for the contestants, and by Messrs. Hirst and Phillips for the respondents; and on the 5th December, the motion to quash was overruled, and the respondent, in each case, was ordered to file his answer on or before the 31st December 1868, on which day, all the answers were filed. On the 6th January 1869, the court appointed William P. Messick and Richard M. Batturs,

(Rehearing.)

examiners to take testimony, who, on the 11th January, entered upon their duties, and were attended by William H. Rawle, Erastus Poulson and James T. Mitchell, Esqs., counsel for contestants, and by Lewis C. Cassidy and Isaac Gerhart, Esqs., counsel for respondents; Mr. J. I. Gilbert was the phonographic reporter. The contestants' testimony commenced on the 11th January and closed on the 9th April, having occupied 37 days in actual business sittings; Mr. Mann, on the part of the contestants, and Mr. Sellers, on the part of the respondents, were present during a large portion of this time, and took an active part in the proceedings. The testimony on the part of the respondents commenced on the 3d May and closed on the 21st July, occupying 33 days, and covering 679 pages of printed matter; Messrs. Sellers, Gerhart and Fletcher, for the respondents, and Messrs. Mann, Mitchell and Donegan for the contestants. The testimony on the part of the contestants, in rebuttal, commenced on the 26th July and closed on the 31st July 1869, occupying six days. The testimony on the part of the contestants, in chief and in rebuttal, covered 901 pages of printed matter. The report of the examiners was filed on the 6th September, the court having fixed that day for the argument.

The effect of climate on legal business, is strikingly exemplified in this case. During its progress, one counsel on each side went to Europe, and on the 12th July, it was stated, in open court, by one of the counsel for the respondents, that one of the counsel was going to the White Mountains and would not return until September; another had to leave the city, by advice of his physicians; and another was in Europe; so that, if it was ordered by the court, that the cases should be discussed in August, the mayor, district-attorney and city commissioners would be in court without counsel.

The arguments commenced early in September, and continued for several days: Messrs. Mann, Strong and Meredith for the contestants, and Messrs. Sellers, Phillips and

(Rehearing.)

Hirst for the respondents. The court took time to consider, and on Saturday the 16th October 1869, it was ordered, adjudged and decreed by the court, that at the election held in the city and county of Philadelphia, on the 2d Tuesday of October 1868, Charles Gibbons was duly elected to the office of district-attorney; similar decrees were made in the other cases in favor of the contestants, except in the case of the mayor, in which case the decree was in favor of the incumbent, and this office became no longer the subject of contest. In the six remaining cases, appeals, so called, were entered by the respondents, in each case, and writs of certiorari were sued out and allowed by the chief justice, at Pittsburgh on Monday the 18th October, and were filed in the proper office on the next day, Tuesday the 19th of October. These writs of certiorari brought before the supreme court nothing but the records, as they stood on that day. The six writs of certiorari were heard before a full bench, on the 27th, 28th and 29th January last; the plaintiff's above being represented by Messrs. Biddle, Phillips and Hirst, and the defendants above by Messrs. Rawle, Mann and Strong (now an associate justice of the supreme court of the United States); the argument, on both sides, was exhaustive." On Monday the 14th February, the opinion of the court was delivered by Judge Agnew, in which Judge Williams and myself entirely concurred; there was a dissenting opinion by the Chief Justice, concurred in by Judge Sharswood.

The court looked neither at the evidence nor the opinion of the court below, which were not brought up by the writs of certiorari, but simply at the record itself, and finding no error on its face, affirmed the decrees of the court below. Nothing subsequently to the 19th October was before them, and therefore, whatever took place afterwards was not passed upon, and was not affected by the affirmance of the decrees.

In the case of the district-attorney, within the term of

(Rehearing.)

the court at which the decree was entered, to wit, on the 28th October 1869, a petition was presented by Furman Sheppard, setting forth certain errors and omissions in the calculations upon which the decree was based, and praying to be heard to explain the same, without seeking to re-argue or to controvert any of the principles of law adopted by the court in its opinion. This petition was received and directed by the court to be filed, and a copy thereof was served upon Mr. Gibbons or his counsel; the court fixed the 30th October 1869, to hear an argument on behalf of the present plaintiff and defendant, upon the petition, on which day, both appeared in person or by counsel, and were heard upon the allegations in the said petition, whereupon the court held the same under advisement; on the 4th November, a supplemental petition was filed, by leave of the court, and a copy of the same served upon the present plaintiff or his counsel; to these petitions the present plaintiff filed answers, but suggesting no objection or exception to the right of the court to consider and determine upon the matters set forth in the said petitions; for reasons satisfactory to the court, they reserved their judgment upon the said petitions and answers.

The decree of the court of quarter sessions having been affirmed, the court took up the said petitions and answers, in order to dispose of the same, and with the knowledge and assent of the counsel of the plaintiff and defendant, assigned a day for the hearing thereof, which was postponed until the 28th March 1870, when the present plaintiff filed a paper, objecting to any further proceedings in the cause, because of the final decree of the 16th October, and because, on the 25th October, he took the oath of office, and because, the judgment of the court of quarter sessions was affirmed, on certiorari, by the supreme court. The court fixed Friday the 1st April, at 10 A. M., to hear the argument upon this paper, and upon the petitions and answers, of both of which petitions and answers I have been furnished with copies. On the 1st April, I

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