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(Appellate jurisdiction.)


The argument, that the claim of the petition to have certain returns stricken out, makes it defective or unsound, is wholly unfounded. If the facts set forth are sufficient, as we have seen they clearly are, the prayer to strike out does not vitiate the charge of an undue election and false return; that charge remains, especially in view of the concluding prayers of the petition, which are strictly correct and cover the entire ground of the case. prayer to strike out is no part of the charge in the complaint; the court may disregard it, if unfit, if too broad, if unsupported by evidence, when there are prayers suitable to the case and covered by the evidence; and we are bound to believe they did disregard it; omnia præsumuntur . legitime facto, donec probetur in contrarium. The court having exclusive and final jurisdiction, we have no right to presume that it abused its powers; the evidence, calculations and opinion of the court, as we have seen, are not before us; we cannot judicially know whether the court struck out divisions, or merely found frauds sufficient to change the result; we know only the decree, and that is clearly right. The whole argument upon the power to strike out polls is outside of the record before us.*

And even if it were conceded, that the prayer to strike out was a defect in itself, yet, the decree cannot be affected by it. The presumption now is, that, if illegal, the court

*It will be seen, that the court skilfully evaded the main question in the cause; in point of fact, the court below did strike out the return of entire polls, as prayed in the petition. The effect of this was, to decide the cause in favor of the candidate attached to the same political party as the majority of the court, who was so clearly defeated at the polls, that the court below was compelled, on a rehearing, after the record was remitted, to declare his competitor duly elected. In his dissenting opinion, Chief Justice Thompson very forcibly argues, that the judgment of the court below must be presumed to have followed the allegata of the complaint; that contained a prayer that, for certain violations of the law on the part of the election officers, certain entire polls might be stricken out from the general return; and it is difficult to see the force of the learned judge's argument that there was nothing before the supreme court to show whether the court below had done so or not. See 1 Brewst. 196.

(Appellate jurisdiction.)

disregarded it; this is supported by authority; thus, in Hazen v. Commonwealth, 23 Penn. St. R. 355, this court held, upon an indictment of eleven counts, where, after a motion to quash was refused, a general verdict of guilty was rendered on ten of the counts, and judgment arrested on two, that the judgment upon the remaining eight would not be reversed, if any count were sufficient, and the first was found to be good. The same had been decided in Commonwealth v. McKisson, 8 S. & R. 420; and in Hartmann v. Commonwealth, 5 Penn. St. R. 63, Burnside and Bell, JJ., said in argument, "the law of Pennsylvania is settled, that if one count be good, it is sufficient;" so also, as to several matters contained in the same count. In Cotteral v. Cummins, 6 S. & R. 348, Justice Duncan said, "it is the law, that where several matters are laid in the same count, part of which is not actionable, or not actionable in the form laid, if there are sufficient facts to support the action, it will be intended, after verdict, that damages were given only for such as were properly laid." The same is said in 1 Chit. Pl. 682, and the reason given, that the verdict will be sustained by the intendment and presumption that the judge duly directed the jury, not to find damages on the defective allegations. The same intendment was made in Weigley v. Weir, 7 S. & R. 310, the court remarking, that it is not to be presumed, the judge would direct, or the jury would have given the verdict, without sufficient evidence of the breach of the contract; the defect was, therefore, cured by the verdict. There are many analogous cases; Stoever v. Stoever, 9 S. & R. 454-5; Kerr v. Sharp, 14 Ibid. 399; Turnpike Co. v. Rutter, 4 Ibid. 6; Sedam v. Shaffer, 5 W. & S. 529; Corson v. Hunt, 14 Penn. St. R. 510; Seitz v. Buffum, Ibid. 69. In this case, the intendment should be even stronger, for the court being the exclusive judges of the facts as well as the law, we cannot suppose the decree was rendered on incompetent or insufficient evidence. "The courts make every reasonable presumption to rid themselves of

(Appellate jurisdiction.)

objections which do not touch the merits;" per Rogers, J., Seitz v. Buffum, supra.*

Thus, it is evident, from this array of authority, no presumption can be drawn from the decree, that the court struck out divisions, because such a prayer is contained in the petition; the decree itself furnishes no such evidence, while the prayer, if illegal, we must now presume, was disregarded, upon the legal intendment the cases all say should be made. The argument, therefore, founded on the decree following the allegata et probata is a non sequitur, and illogical; the probata are not before us, while the allegata are not presumed to be followed, contrary to law. But, in addition to this general principle, we have an authority in point; in Ewing v. Filley, 43 Penn. St. R. 384, it was held, that the proceedings could not be reversed because of contradictory averments in the specifications, but the proper course would have been, to move the court below to strike out the contradictory part; and the certiorari was quashed. There was no motion in the present cases to strike out this prayer as illegal; the only motion was to quash.

Upon the whole record, in these cases, we discover no error, and the several decrees are, therefore, affirmed. Decrees affirmed.

THOMPSON, C. J., and SHARSWOOD, J., dissented.

This case is undoubtedly authority for the principal point decided, namely, that the supreme court has jurisdiction to review the regularity

* A labored argument, abounding in generalities, but which must fail to convince the understanding of any really learned man. It is well understood that the majority of the court were compelled to assume this illogical position, by the refusal of one of their number to join in an affirmance of so much of the decree of the court below, as rejected entire election polls, for the reasons set forth in the petition. It is to be regretted that the plan of this work compels the omission of the able dissenting opinion of the Chief Justice.

(Appellate jurisdiction.)

of the proceedings of the court below, in a case of contested election, but not to re-try the case upon the merits. Its authority, however, upon the other questions involved, is much weakened by the able dissenting opinion of the Chief Justice, and the acknowledged great ability of the dissenting judges. It is always to be regretted, that a court should be divided politically, upon a contested election case, and that the decision should be in favor of the candidate of the political party to which the majority of the court are attached; it necessarily weakens the authority of the case as a precedent.

It was early decided in Pennsylvania, that the jurisdiction of the supreme court over the proceedings of the court of quarter sessions, in a contested election case, was revisory only, and that a certiorari would not lie to remove the proceedings in a case then pending and undetermined. Wallington v. Kneass, 15 Penn. St. R. 313. And in Carpenter's Case, 14 Ibid. 486, it was held, that the general revisory power of the court, to correct errors apparent on the face of the record, had been taken away by the act of 1839, which declared that the action of the court below should be final; and a writ of certiorari issued in that case was, accordingly, quashed. This was followed by Scheetz's Case, in which the supreme court, on the 14th April 1853, were divided on the question of overruling Carpenter's Case, and sustaining the writ; Black, C. J., and Lowrie, J., being in favor of affirming the former decision, and Lewis, J., and Woodward, J., for overruling it, so far as to sustain the writ, for the purpose of examining into the regularity of the proceedings of the court below, but not to rejudge the merits; Gibson, J., by whom the opinion in Carpenter's Case was delivered, being absent at nisi prius. The latter opinion has been finally established as the doctrine of the supreme court, and was followed in Chase v. Miller, 41 Penn. St. R. 403 (ante 214), and Ewing v. Thompson, 43 Ibid. 372, as well as in the principal case. And see Commonwealth v. Garrigues, 28 Ibid. 11; Powers v. Reed, 19 Ohio St. R. 189. If, however, the record do not show on its face, sufficient ground for the issuing of a writ of certiorari, it may be quashed on motion. Ewing o. Filley, 43 Penn. St. R. 384.

In Ohio, the judgment of the common pleas in a case of contested election, is reviewable in the supreme court. Lehman v. McBride, 15 Ohio St. R. 573. In Illinois, under a similar statute, which provided that the decision of the circuit court in a case of contested election

(Appellate jurisdiction.)

should be final, the supreme court held, that their appellate jurisdiction was absolutely taken away, and that a writ of error issued in such a case must be dismissed. Moore v. Mayfield, 47 Ill. 167; People v. Smith, 51 Ill. 177. In Missouri, on an appeal, there is a trial de novo in the circuit court. Boggs v. Brooks, 45 Mo. 232.

The statutes, however, giving jurisdiction to municipal corporations to try contested elections of their own members, have been held not to oust the jurisdiction of the supreme court, to inquire into the legality of their proceedings, by granting an information in the nature of a writ of quo warranto. Commonwealth v. McCloskey, 2 Rawle 369 (ante 196). But the contrary was decided in Commonwealth v. Leech, 44 Penn. St. R. 332, and in Commonwealth v. Garrigues, 28 Ibid. 9. The same principle was involved in Commonwealth v. Small, 26 Penn. St. R. 31. And in New Jersey, as early as 1794, the right of the supreme court, without any statute, to examine into the proceedings of an election, and if illegal to declare it void, was asserted in an able opinion by Chief Justice Kinsey, in State v. Justices of Middlesex, Coxe 244. This case, however, is said, in a note, to have been reversed on error before the governor and council, by a vote of 8 to 3, on the ground of want of jurisdiction.

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