(Failure to elect.) returned that Rutherford was duly elected assessor and Linnard and Benner assistant assessors; the other, signed by Lippard, as constable, and Schofield and Caldwell, as judges, that Leslie had received the highest number of votes for assessor, and Vollum and Sullivan, for assistant assessors. The return further stated that the electors of Locust ward assembled at the place designated by the constable, and at 2 o'clock P. M. on the 3d October 1834, chose the judges of the election; but who they were, it had been impossible to ascertain with certainty. That on the opening of the polls, or while preparations were making for it, much confusion and disorder arose, and a number of persons forcibly and violently interfered with the due opening of the polls; that these persons, with the constable of the ward, and the two citizens whom they alleged to have been elected judges, opened polls at a neighboring house, and there impartially and tranquilly elected the persons mentioned in their return; that the electors who continued at the place designated in the public notice by the constable, proceeded in the election, impartially and tranquilly, and elected the persons mentioned in the return first above referred to. That the public exigencies requiring them to act without delay, they had chosen the persons mentioned by them in their return. Meredith and Scott, for the relator. Dallas, attorney-general, for the respondents. ROGERS, J., delivered the opinion of the court. A rule has been obtained on the commissioners of the county of Philadelphia, at the instance of James Leslie, to show cause why a mandamus should not issue, directing them to receive the return of the assessment made in Locust ward, by James Leslie, Henry Vollum and Nathan P. Sullivan; to make payment to said persons of the amounts (Failure to elect.) prescribed by law for their services as assessor and assistant assessors of said ward; and to appoint as collector of taxes in said ward, one of the individuals returned to them for that purpose, by the said Leslie, Vollum and Sullivan; cause has been shown, the grounds of which are stated at large in the return of the commissioners to the rule. For the relators to succeed in this application, it must clearly appear, that the assessors de facto were not duly elected; for, if it were a doubtful election, a mandamus ought not to be granted. I do not take into view, that the assessors de facto were not made parties to this rule, as we shall consider the case in the same light as if the rule were amended by the insertion of their names in the record. But still the objection remains, that when there is any doubt of the validity of the election, the court will not interfere by mandamus, but will put the party, in the / first instance, to an information in the nature of a quo warranto; before a mandamus would be granted against the commissioners, we should require that there should be a judgment of ouster against those who were actually performing the duties of the office; and this would be a sufficient answer to the rule; for here it is plain, that the election or appointment of the officers de facto is not, apparently, such a one as is merely colorable and void. Rex v. Bankes, 3 Burr. 1454. But we do not intend to rest the case on this ground, as the effect would merely be, to turn the relators round to a new proceeding; this course would not meet the wishes of either party. I shall examine the case in two points of view: 1. What is the title of the relators? 2. The title of the respondents? and by respondents, I mean the officers de facto, to whom the commissioners directed their precept, and whom we take to be parties to the rule. 1. I must first premise, that as a prerequisite to the issuing of a mandamus, it must appear, not only that the respondents have no title, but that the relators have. The writ is grounded on the suggestion of their own right; it (Failure to elect.) cannot be claimed as a right, that the court is bound to issue a mandamus to compel the commissioners, for instance, to pay money for services rendered as assessors, when they are not legally such, nor even colorably so; and this makes it our duty to inquire, by what title the relators claim to be assessors. The counsel for the relators rest their pretensions on the return of the constable, made in pursuance of the 4th section of the act of 11th April 1799. (3 Sm. Laws 393.) The act directs that the constables holding elections shall make a return thereof, signed by the judges, within ten days, to the commissioners of the proper county, &c., who shall file the same in their office. They contend that the commissioners are compelled to receive and file the return of the constable, and to issue their precept to the persons therein named, to make the assessment; but conceding that the commissioners have no discretion in relation to the return (a point which I shall hereafter notice), yet, it is not perceived, how this helps the relators' case, unless it can also be shown, that the return is conclusive on the supreme court, and that, in fact, there is no tribunal in the commonwealth competent to examine into and correct gross fraud or illegality of procedure on the part of the returning officer. It is in vain to deny, that this court have a superintending power, by information, to examine and correct abuses in such cases; and I cannot conceive how this can be done, in many cases, unless we go behind the return; it is not sufficient that forms have been observed, but it is necessary to its validity that the election shall have been conducted in the manner prescribed by law. By the return of the commissioners, in which the facts are stated with the requisite clearness and precision, it appears, that the constable, in pursuance of the directions. of the act of assembly, gave notice of the time and place of holding the election; that the electors assembled at the time and the place designated, that being the place generally used for the purposes aforesaid; that much con (Failure to elect.) fusion and disorder having arisen, the constable and the two persons who, it was alleged, were elected judges, removed the election from the place designated, and opened the polls at a neighboring house; at which place the relators had the highest number of votes, and were returned by the constable and judges as duly elected assessors of the ward. The change of place was the act of the constable, or of the constable and judges; and if such authority is vested in him or them, it must be by virtue of some act of assembly which has not been produced. The only mode in which the place can be altered, is by force of the act of the 13th April 1807 (4 Sm. Laws 471), which makes it lawful for a majority of the qualified electors present at any meeting held at the usual place for electing assessors or inspectors, or other township officers, to change the place of holding said election, to any suitable or convenient house best adapted for the convenience of the inhabitants of the respective townships. Now, whether the majority present would have had the right to adjourn the election, it is useless to determine, as there is no evidence of an overwhelming necessity; nor is there any allegation that any vote was taken to ascertain the wish of the electors. We are, therefore, of the opinion. that the relators were not legally elected, and have no title to the office of assessors; and this is, of itself, a decisive answer to the rule for a mandamus. 2. I shall now proceed to examine the respondents' title; and by the respondents, as before intimated, we mean the persons appointed assessors by the commissioners. In discussing the question, it will be necessary to inquire what rights were acquired by the election held at the proper place; for, after the secession of the constable, the electors who remained elected judges, who held an election at the usual place designated by the constable, and returned to the commissioners that John Rutherford, James M. Linnard and John Benner had received a majority of votes, stating the number each had received, (Failure to elect.) and that they were duly elected assessors for the ward. This was a proceeding wholly unwarranted; there is no law which authorizes an election under such circumstances, and in the manner above stated; for the 2d section of the act of the 15th February 1799 (3 Sm. Laws 341), prescribes that, if any constable shall neglect or refuse to perform the duties required of him by that act, he shall forfeit the sum of $50; and in case of neglect, refusal, death or absence from the county of any constable or constables, the overseers of the poor of the township, ward or district, or where there shall be no overseer of the poor, the supervisors of the highways shall perform the duties required to be done by the constable, &c. This act relates to the election of inspectors; but by the 4th section of the act of the 11th April 1799, the constable is directed to hold the elections of assessors; and the elections are ordered to be holden under the same regulations, as inspectors for the general election are directed to be chosen (3 Sm. Laws 393). It is then clear, that on refusal or neglect of the constable, the overseers of the poor, or, in default of an overseer of the poor, the supervisors of the highways, or in the city, the street commissioners who take the place and perform the duty of supervisors, should have been called in by the electors to conduct the election. In default of such an officer, no judges could be properly chosen nor legal election held. This, then, is the case of a failure on the part of the electors to elect; and the 87th section of the act of 15th April 1834 (Purd. Dig. 963) provides, that if the electors of any township shall fail to choose an assessor or assistant assessor, at the time appointed by law, or if any person elected to such office shall neglect or refuse to serve therein, or if any vacancy shall happen therein, by death or otherwise, the commissioners of the county shall appoint a fit person to fill the office, who shall have the same powers, be subject to the same penalties, and receive the same compensation, as if he had been elected, &c. This act |