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(Effect of certificate.)

when public forms of proceeding are tainted with known fraud, public or common sense cannot help regarding the sanction of them as a mere exercise of force, without right, and then riotous resistance becomes probable, where the public take great interest in the matter; as violence is very apt to beget violence. God save our country from this additional degradation! The violence of partisan strife has already humiliated us much; let not fraud and force be met by riot now and here; rouse by violence the passions of men, and the contested election case will become a trial of opposing parties, and not of the truth of the case. Silence the passions, and let truth have a chance to present her claims to quiet reason; let stillness or the quiet force of relevant testimony rule the time that intervenes between now and the decision of the contested election, and the decision will be right. No man of sense, much less of conscience, will dare to stand in broad open day, before high Heaven, and before the honest conscience of the country, and sanction this forgery, if the evidence be then as it now is; none such will desire to do it. But if his judgment be beclouded by the passions of opposing popular parties, and he be forced to assert his courage rather than the truth, then the rights of justice will be insecure.

It is a sore affliction to us, to witness these disorders of our country; we cannot help reflecting, whither do they tend? and we wish that all others would think of this, that we may find a proper political remedy. Our selfish assertion of our rights, and neglect in studying our duties, may have much to do with them. Our elections have become so intensely selfish, that opposing parties treat each other as enemies, and thus many on each side will come to think that tricks and lies, fraud, forgery and perjury are legitimate strategy; and candidates are very apt to be selected, not because of their honesty, or their competency for the office, but of their capacity to lead in an election combat, and of their readiness to reward their

(Effect of certificate.)

assistants at the expense of the public. When elections are conducted, in any large degree, on such principles, they become a form of civil war, repeated annually by appointment of law, and tending to substitute anarchy for law; for a while it is a question which party shall assemble the most voters, honestly or dishonestly, by fair argument or by lying charlatanism; but soon it becomes a question which party can force the election returns to count the highest numbers, and then forgery and perjury lend their assistance. This is a frightful stand-point to occupy for a look into the future; we shall not attempt to report its revelations.

Injunction refused.

In Miller v. Lowry, 5 Phila. 202, the court of common pleas of Philadelphia, disregarding the decision of the supreme court in Hulseman v. Rems, enjoined the party who had received a certificate of election, from using it, on the ground of fraud. This, however, would appear to be in conflict with the whole current of authorities; in Commonwealth v. Baxter, 35 Penn. St. R. 263, it was decided, that a certificate of election is legal and primâ facie evidence of title to the office, which can only be set aside by proceedings for a false return. The same point was decided in Kerr v. Trego, 47 Penn. St. R. 292; and in State v. Churchill, 15 Minn. 455. So, in State v. The Governor, 1 Dutch. 331, the supreme court of New Jersey held, that where the governor is required by law to issue a commission, in accordance with the determination of the board of county-canvassers, the court will not award a mandamus directing a commission to be issued in conflict with such determination, although it appear affirmatively that the decision of the board of canvassers was based upon illegal evidence, and is contrary to the truth of the case. The certificate, whether rightfully or wrongfully given, confers upon the person holding it the primâ facie right to the office, until overthrown by a judicial determination against him. People v. Miller, 16 Mich. 56; Territory . Pyle, 1 Oregon 149; Crowell v. Lambert, 10 Minn. 369; State v. Sherwood, 15 Minn. 221; State v. Churchill, Ibid. 455. If, however, the certificate, upon its face, recite facts upon which the canvassers rely as their justification and authority for giving it, and

(Requisites of a petition to contest an election.)

these facts show that the holder was not duly elected, it may be disregarded. Hartt v. Harvey, 32 Barb. 61.

Although no certificate or other formal mode of making known to a person his election to an office be prescribed or required by law, the result of the election, when ascertained and announced by the election officers, is final and conclusive, and cannot be reconsidered or altered by them. State v. Warren, 1 Houst. 39. But the determination of the canvassers has no such final effect, as to interfere with a full investigation of the result of the election, upon a writ of quo warranto. State v. Clerk of Passaic County, 1 Dutch. 354. And see Commonwealth v. County Commissioners, 5 Rawle 75.


In the Court of Common Pleas of Philadelphia.



[Requisites of a petition to contest an election.]

A petition complaining of an undue election and return, must set forth the facts, with precision; and they must be sufficient, if sustained by proof, to render it the duty of the court, either to vacate the election, or to declare that another person than the one returned, was duly elected.

Unless the petition be thus specific, and set forth facts that, if true, would have changed the result, it will be quashed, on motion.

Mere irregularities, on the part of the election officers, will not vitiate the poll.

This was a petition complaining of an undue election and false return of David C. Skerrett, for the office of prothonotary of the District Court. The respondent's counsel moved to quash the petition on the ground that it contained no such sufficient allegations and specifications as would justify the court in setting aside the election.

(Requisites of a petition to contest an election.)

John W. Ashmead, for contestants.

H. M. Phillips, for respondent.

KING, P. J., delivered the opinion of the court. Thirty or more qualified electors of the city and county of Philadelphia have filed their petition, in what they suppose to be the form prescribed by the act of 2d July 1839, complaining of the undue election and false return of David C. Skerrett, as prothonotary of the district court, at the general election of October last. A motion has been made, on behalf of Mr. Skerrett, to quash the petition and proceedings consequent upon it, on the ground that it wants precision and directness. The respondent assumes the position, that the court cannot, under a sound and practical construction of the act of assembly, entertain such a petition, unless it contain some precise allegation of fact which, if sustained by proof, would be sufficient to vacate the return; and that mere general allegations that the party returned as elected was not duly elected, and that the return declaring him elected is untrue, false and fraudulent, afford no basis for the court to proceed in the investigation. On the contrary, the petitioners insist, that general allegations of an undue election and false return, are all that is required by the letter of the law, to authorize the inquiry demanded, and that, at all events, the specifications of irregularities and illegalities, said to have been perpetrated at this election, as set forth in the petition, taken in connection with the general allegations contained in it, exhibit such a case as requires the court to permit the investigation to proceed.

The case is interesting, not only from its subject-matter, affecting, as it does, one of the most important relations of our political system, but from the manifest necessity existing, that the true rule regulating such proceedings should be defined, so as to advance, on the one hand, substantial and meritorious, and to arrest, on the other, futile and

(Requisites of a petition to contest an election.) querulous complaints. He has been but a casual observer of the disturbing influences of human passions, who will not admit that if one thing is more required than another to rest on solid, tangible and practical principles, it is the class of inquiries like the present, that spring up amidst the fiercest excitements and most vehement feelings, which men, living under such a government as ours, are the subjects of. Should too ready an ear be lent to such complaints, it does not require the spirit of prophecy to divine, that elections will rarely terminate with the ordinary functionaries under whose superintendence they are placed; but that courts of justice will be perpetually invoked to assume the office most foreign to their organization that of umpires between the contestants for public favor at the ballot-box. Where everything is to be gained, and nothing to be lost, it will require more philosophy than ordinarily belongs to a discomfited party, to resist the temptation of an appeal from a decision against them at the polls, if such an appeal be afforded, on a complaint so vague and indefinite as to offer no shock to the most tender conscience.


For the greater simplification of the precise question for decision, we will first refer to the law, whose application the petitioners invoke: secondly, we will inquire what is its true construction, intent and meaning: thirdly, whether the petition before us is in conformity with these, or otherwise. The conclusion arrived at from these premises results in the decision of the case.

The jurisdiction of this court in the premises is derived from the fifth section of the act of 1839, regulating the election of prothonotaries, clerks, &c. By this section it is enacted, "that the returns of the elections under this act shall be subject to the inquiry, determination and judgment of the court of common pleas of the proper county, upon complaint, in writing, of thirty or more of the qualified electors of the proper county, of undue election or return of any such officer, two of whom shall take

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