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(Elections to fill vacancies.)

the policy of notice to electors, other than that which arises from mere legal presumption; and the right of no man is hereby invaded, for no man has a right to filch an office through the medium of a surprise upon the great body of the electors.* Moreover, a knowledge of what vacancies in office exist or impend, is not a matter of law merely; it is quite as much a matter of local history as of law; and the statute supposes that, with this history, the body of electors cannot be expected to be, at all times, familiar; and in the case before us, the circumstances show, that the mistake, out of which the whole matter originated, involved the governor of the state as well as the electors of Logan county, and does no discredit to their character for intelligence; and the sheriff's proclamation, by embracing many other offices, but omitting that of probate judge, was calculated to mislead instead of enlightening them.

Here, then, was an election held without notice to the body of the electors of Logan county, without notice such as the laws prescribe, and without notice in fact from any other source whatsoever; and for this reason, and irrespective of any circumstances of concealment and stratagem, on the part of the few electors who did vote,† which appear in the record, we are of opinion, that the election, as to probate judge, was irregular and invalid.

In deciding this case, however, we do not intend to go beyond the case before us, as presented by its own peculiar facts. We do not intend to hold, nor are we of opinion, that the notice by proclamation, as prescribed by law, is per se, and in all supposable cases, necessary to the validity of an election; if such were the law, it would always be in the power of a ministerial officer, by his misfeasance, to prevent a legal election. We have no doubt that, where

* To appreciate the value of this argument, the reader ought to understand whether Foster was in political accord with the court. Upon this question the author is uninformed.

† 913 votes were cast for Foster.

(Elections to fill vacancies.)

an election is held, in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid. But where, as in this case, there was no notice, either by official proclamation, or in fact, and it is obvious, that the great body of the electors was misled, for want of the official proclamation, its absence becomes such an irregularity as to prevent an actual choice by the electors, prevents an actual election, in the primary sense of that word, and renders invalid any semblance of an election which may have been attempted by a few, and which must operate, if it be allowed to operate at all, as a surprise and fraud upon the rights of the


Judgment affirmed.

There is some conflict of decision as to the validity of a special election to fill a vacancy, which is held without notice to the electors. In New York, it has been determined, that where the office of a justice of the supreme court became vacant by the death of the incumbent on the 23d October, when it was too late for the secretary of state to give notice thereof, it was competent for the electors of the district to elect a person to fill the vacancy, at the ensuing election on the 6th November following, and that such election was valid notwithstanding the want of notice. People v. Cowles, 13 N. Y. 350. So, in Michigan, it was held, that where a city charter requires a vacancy in a city office to be filled, at the next annual election, and directs the clerk to give notice thereof, and of the offices to be filled, and the notice makes no mention of an existing vacancy, the default of the clerk will not invalidate the election; the electors are presumed to have notice of the vacancy from the publication of the proceedings of the city council. People v. Hartwell, 12 Mich. 508. The same point has been ruled in Wisconsin; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Ibid. 363: and in Iowa; Dishon v. Smith, 10 Iowa 218. In Indiana, it was decided, that an election for county auditor was not void by reason of want of notice. State v. Jones, 19 Ind. 356. But in the same state, it was held, that an election to fill a

(Election of judges.)

vacancy cannot be held, where it did not occur long enough before the election, to enable the proper notice to be given. Beal v. Ray, 17 Ind. 554. And in California, it is said that the governor's proclamation is essential to the validity of a special election to fill a vacancy. People v. Porter, 6 Cal. 26; People v. Weller, 11 Ibid. 49; People v. Martin, 12 Ibid. 409; People v. Rosborough, 14 Ibid. 180.


In the Supreme Court of Pennsylvania.



[Election of judges.]

The constitution having provided that judges shall be elective by the people, it is not in the power of the legislature to create a new court, within part of the territorial jurisdiction of an old one, and to provide that the judge of the old court shall hold the new one; the judge of the new court must be chosen by the people of his district.

This was a quo warranto issued, on the suggestion of the attorney-general, against John N. Conyngham, to inquire by what right he claimed to exercise the office of recorder of the mayor's court of the city of Scranton.

By the act of 23d April 1866, incorporating the city of Scranton, there was created a mayor's court for the said city, and it was provided that the president judge of the eleventh judicial district should be recorder of the said city, and should be the president judge of the said mayor's court. The respondent was elected president judge of the eleventh judicial district at the general election in 1851, and was duly commissioned; and by virtue of the said act he claimed to exercise the office of recorder of the said city. To an answer setting forth these facts, the attorney

(Election of judges.)

general demurred, on the ground that the constitution requires all judges to be elected by the people.

Brewster, attorney-general, Ward and Handley, for the commonwealth.

Hand and Willard, for the respondent.

THOMPSON, C. J., delivered the opinion of the court. The writ in this case was issued upon the relation of the attorney-general, to test the right of the respondent to exercise the office of recorder of the mayor's court of the city of Scranton, in Luzerne county, under the provisions of an act incorporating said city, passed the 23d of April 1866, and the supplement thereto of the 30th of March 1867. At our sitting in July last, in the eastern district, having heard the arguments in the case previously, we entered judgment on the issue made, in favor of the commonwealth, and consequently, of ouster against the respondent, and reserved to the present time the announcement of our reasons for the judgment so entered, some of which we propose now briefly to state.

By the first of the above-mentioned acts, the inhabitants embraced and residing within the territorial limits of the township of Providence, the borough of Scranton, the borough of Hyde Park and the borough of Providence, in the county of Luzerne, are constituted a corporation by the name and style of the City of Scranton, and divided into twelve wards. In addition to the usual powers conferred on such municipal corporations, a mayor's court is established by the act, to be holden quarterly by the mayor, recorder and aldermen, or any three of them, the mayor or recorder being one, "with full power," says the act, "to hold and keep a court of record within said city, four times in each year, to continue one week each," and longer, by adjournment, if necessary.

The criminal jurisdiction of this court is, by the act, to

(Election of judges.)

extend to "all such offences, committed or arising within the limits embraced by the city, as are triable in other courts of quarter sessions in the commonwealth," with the power to forfeit and issue process for the recovery of all recognisances forfeited therein, and "generally," says the act, "to do all such matters and things within the said city, as any court of quarter sessions of the peace of and for any county within this commonwealth, may or can do within such county." Thus, there is established, within the city, a court of quarter sessions of general jurisdiction, as fully and clearly as any other court is or can be established within any county of the commonwealth.

In addition to this general criminal jurisdiction, it is provided in the 15th section of the act, as follows: "That the mayor's court for the city of Scranton shall have original civil jurisdiction to the same extent as is conferred by law upon the court of common pleas of Luzerne county, in all cases where the defendant shall reside within the limits of said city, and also of all amicable actions where the parties shall, by writing, institute the same in said county; and the remedies, processes, pleadings and costs shall be similar to like proceedings in the court of common pleas in said county; and the said mayor's court shall also have the same chancery powers and jurisdiction, within the said city, as is now by law vested in the courts of common pleas; and shall also have the same power and jurisdiction, within the said city, as is now conferred by law upon the orphans' court of Luzerne county." Jurisdiction of divorce cases was afterwards conferred by the supplement to the act of incorporation; power is also given to this court to issue writs of certiorari to judgments of the aldermen of the said city as other courts of common pleas do. It possesses all the machinery and officers of other courts of record, viz: a clerk, seal and records, and its judgments are revisible on appeal and writ of error from this court, as are the judgments of other courts of general jurisdiction. It is, therefore, a court of

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