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(Payment of taxes.)

would clearly extend to both species of taxation. Be this as it may, it is certain, that although the other sections. of the third article, after the report of the grand committee, and before the final adoption of the whole instrument, were reconsidered, no further debate or vote was had on the first section thereof. From the minute detail I have given of the proceedings in the convention, I am irresistibly led to conclude, that it was their true meaning, the payment of an individual tax, assessed at least six months before the day of election, should be an essential pre-requisite to entitle a person to vote, except in the case of the sons of persons properly qualified, between the ages of twenty-one and twenty-two years. Upon the whole matter, I am of opinion, that the demurrer has been supported, and that judgment must be entered for the defendant.

BRACKENRIDGE, J. The right to vote would seem to be considered as a great privilege, else why make the payment of a tax a sine quâ non, or pre-requisite of the privilege? The payment of a tax, which had been apportioned to the individual, six months before, is a restriction of the privilege; it is only in this point of view, that the limitation of six months, can be at all material; for there can be no evidence or criterion of residence that is intended, this being provided for, under the clause of the two years just preceding. It must have been to provide against the very thing that has here happened, a moneyed man procuring votes, on the spur of the occasion, by getting individuals assessed and paying a tax for them. In this point of view, it is anti-republican, and I am inclined to reject a construction that will have that operation. The constitution would seem to have thought (I mean the framers of it), and we are bound to think, with good reason, that the getting taxes paid for those who are not disposed to pay for themselves, was not a set-off, in good policy, against the weight it would give to men of property, in

(Payment of taxes.)

elections, who could afford to procure votes in this way; if this was the reason of this provision in the constitution, it was good. Though it does not necessarily follow that this would be the effect, it is not the most probable, that an individual, barely for the sake of the public good, would come forward and get himself assessed, and pay a tax, at a late day, who had escaped assessment by the oversight of the assessor, or by his own concealment or evasion; it would be more likely, that it was at the instance of another, a man who could afford to regard money less than power, and had an interest in procuring votes according to the exigency. Admitting that an esprit de corps might lead, occasionally, a sans culotte, when a brother sans culotte had set up, to procure an assessment and pay a tax; in general, I take it, he would be more likely to let the rich man pay it for him, and be hauled up to the polls at the election. For this reason, I am against the construction, as aristocratic, and think the plaintiff in this case was not entitled to a vote.

Judgment for defendant.

It has been contended, as suggested by Judge Yeates, in Catlin v. Smith, that the constitution prescribes the payment of a poll-tax, as a pre-requisite of the right to exercise the elective franchise; but the argument of the learned judge shows that this idea was entirely excluded from his mind. The objection was raised in Thompson v. Ewing, 1 Brewst. 102-3, that a resident citizen who had paid a county tax assessed upon his real estate, was not a legal voter; but Judge Thompson held that this was such a tax as was contemplated by the constitution; that this was a personal assessment, and that he had complied with the requisitions of the law by making payment of it. The present constitution of Pennsylvania provides that the tax, of which the payment is one of the qualifications of an elector, shall have been assessed at least ten days before the election; but this does not require that facilities should be provided for the assessment of voters down to the tenth day preceding the election; it is a restriction, not an injunction;

(Payment of taxes.)

and therefore, a registry law that does not provide for such assessment, is not, on that ground, in violation of the constitution. Patterson v. Barlow, 60 Penn. St. R. 81. It is the right of a citizen who is assessed for both a state and county poll-tax, to pay either of them, in order to entitle himself to exercise the rights of an elector, and the receiver of taxes is not justified, in refusing to give a receipt for the one, without payment of the other; it is competent, however, for the legislature, in authorizing the appointment of deputy-receivers, for the convenience of the electors, to provide that they shall collect both the state and county taxes; and a citizen is not deprived of any constitutional right, by not being allowed to pay one of his taxes to such deputy; if he wish to do so, he must seek the office of the principal receiver, and tender his tax to him. Commonwealth v. Peltz, 1 Brewst. 159. The payment of a state or county tax, by one otherwise qualified, entitles him to vote, though such tax were illegally assessed upon him. Humphrey v. Kingman, 5 Met. 162. And although a tax, which is assessed upon one person, be paid for him by another, without his previous authority, yet, if he recognise the act, and promise to repay the amount, on the ground that such person acted as his agent, he thereby acquires the right to vote, the same as if he had paid it with his own hand. Ibid. And see Draper v. Johnston, 1 Cong. Elect. Cas. 702. In Massachusetts, persons exempted from payment of poll-taxes, by reason of old age, are not entitled to vote, unless they have paid a property tax. Opinion of the Judges, 5 Met. 591.


In the Court of Common Pleas of Philadelphia.


(Reported 2 Ashmead 261.)

[Validity of a minority election.]

If a quorum of the proper body be present, and a majority of them either refuse to vote, or vote in a manner different from that prescribed by law, a minority, composed even of a single member, is sufficient to make a valid election.

If the law require the vote to be by ballot, and the majority vote vivâ voce, a single ballot, if given and received as such, is sufficient to elect.

This was a quo warranto to test the right of the defendant to exercise the office of treasurer of Philadelphia county. Issues of fact having been joined, the case was submitted to a jury, after a discussion of the questions of law by the respective counsel, under the charge of the court.

St. George T. Campbell, for the relator.

Goodman, Raybold and W. B. Reed, for the defendant.

KING, P. J. The proceeding in which we are engaged, is technically termed a quo warranto. It is prosecuted by the commonwealth, at the suggestion of Hugh Clark, against the defendant, George Read, and requires of the latter to show by what authority he claims to exercise the office of treasurer of Philadelphia county.

By a general law of the commonwealth, passed on the 15th of April 1834, the commissioners of each county are annually to appoint a respectable citizen as county treasurer. By the act of the 16th June 1836, the countyboard for the city and county of Philadelphia, for the

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(Validity of a minority election.)

time being, are to meet at the county commissioners' office, on the first Monday in June 1837, and on the first Monday of June in every second year thereafter, between the hours of two and six o'clock in the afternoon, and then and there elect by ballot, a county treasurer, to serve for two years from the said election, who shall perform the duties and incur the liabilities now prescribed by law for the said treasurer. The sole operation of this law, therefore, being to change the body electing the treasurer of Philadelphia, and to extend the period of his official term; leaving him in all other respects charged with the duties and subject to the obligations imposed by the general law upon other county treasurers.

The county-board to whom, by the act of 1836, the power of making choice of the county treasurer, is thus transferred from the commissioners, is composed of the members of the senate and house of representatives, representing the city and county of Philadelphia in the general assembly. To constitute a quorum of this board, a majority of the whole number of city and county members is requisite. By a joint resolution of the legislature, passed on the 27th of March 1839, the time of electing the county treasurer by the county-board, was changed from the first Monday of June to the second Wednesday of April 1839.

Thus stood the law on the 10th of April last, when the alleged election of the defendant took place. On that day, all the members of the county-board, being in number twenty, assembled at the commissioners' office, and organized for the dispatch of business, by the appointment of one of their body as president, and of a citizen as secretary. A motion being made to proceed to the election of treasurer by ballot, it was amended, so as to make the election vivâ voce, by a vote of eleven for, to nine against the amendment, and the resolution as amended prevailed; against the adoption of this amendment, several of the members protested, as a direct infraction of the law under

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