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proved that any candidate has received the vote of one who had no right to give it, we will take it from him, no matter what may be the effect; but we think it unjust to deprive him of his election, when, in all human probability, the illegal vote was cast for his opponent, who is in the minority. It would be unjust to adopt a principle which, in its application, might produce such a result. McDonald testified that he did not know for whom he voted as assessor; but if we were to weigh the evidence and take circumstances for our guide, the inference might be fairly drawn, that he voted for McDaniels. It was admitted by counsel in the argument, that he ran on the "Apple ticket;" the witness said he voted five tickets, that they were given to him in a bundle, that he could not read or write, but that he asked for a ticket headed by John Apple for alderman, and they gave him one. From the zeal with which closely-contested elections are generally conducted in this state, and the nice manner in which entire tickets are arranged, it would not be a strained inference to presume that the witness voted for McDaniels. If so, then it should be taken from his votes, and that would increase the majority for the candidate who has the
We do not, however, place our decision upon that ground, but upon the rules of law which we have already laid down. We are of opinion, from the evidence before us, that the candidate who has the return was duly elected assessor of the Sixth ward, and therefore, order this complaint to be dismissed, and the election of Jacobs confirmed; we likewise order and direct that the county pay the costs of these proceedings.
McDaniels' case is a leading one upon the several points decided, all of which are fully sustained by subsequent decisions, and may be accepted as the undoubted law upon the questions involved. In Chase v. Miller, 41 Penn. St. R. 420, it was said by the supreme court, that "from 1799 down to the present hour, election districts, within the meaning of
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our statutes, have denoted subdivisions of Pennsylvania territory, marked out by known boundaries, pre-arranged and declared by public authority" (ante 223). On the 26th April 1844, the legislature attempted to overrule the decision in McDaniels' case, by providing that any qualified elector who might have removed from one election district to another, in the same county, within ten days preceding any general election, should be entitled to vote in the district from which he had so removed; but this was declared to be unconstitutional, in Thompson v. Ewing, 1 Brewst. 68, 103.
CHADWICK V. MELVIN.
In the Supreme Court of Pennsylvania.
MARCH TERM 1871.
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If an election be held, without necessity, at a different place from that designated by law, the entire poll must be rejected.
And so also, it seems, if the polls be opened at a much later hour than the time prescribed by law.
Certiorari to the court of Quarter Sessions of McKean county. This was a petition contesting the election of Charles C. Melvin to the office of treasurer of McKean county, at a general election held on the second Tuesday of October 1870. The court below, on motion of the respondent's counsel, for the reasons stated in the opinion of the court, quashed the petition, and dismissed the proceedings; whereupon the cause was removed to this court, and the quashing of the petition was here assigned for
THOMPSON, C. J., delivered the opinion of the court. We think the court below committed a clear error, in quashing the complaint of the requisite number of citizens
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of McKean county, complaining of an undue election of the respondent as county treasurer, at the general election of 1870. It sets forth what is claimed as material violations of the election laws, in three districts or townships, giving sufficient majorities to elect the respondent over the contestant by an aggregate of thirty-two votes in the county. The complaint is, in holding the elections in these three districts, at different places from those established by law, and designated in the sheriff's proclamation; to wit, in Wetmore township, the place of holding the annual elections, as fixed by law, is at the house of William Toby, in said township; whereas, it is alleged, it was held at the school-house, at Wetmore station, three miles distant, without authority of law, and at which were cast, returned and counted for Charles C. Melvin, the respondent, forty-seven votes, and for the contestant, John R. Chadwick, four votes: in Bradford township, the place fixed by law for holding the election, and designated by the sheriff's proclamation, was the school-house in the village of Littleville; whereas, the election was not held there, but at a school-house more than half a mile distant, across Tunungwant creek, at which place there were cast, returned and counted one hundred and eighty-three votes for the respondent, and one hundred and fourteen votes for the contestant: in Hamlin township, the election, it is alleged, was not held at the Aldrich school-house, the place fixed by law and the sheriff's proclamation, but at a vacant house, more than half a mile distant, at which were cast, returned and counted for the respondent twenty votes, and for the contestant four votes. The complainants allege that these township returns were illegal, and should not have been counted in the return of the election for treasurer, and which, if not counted, would leave the aggregate vote of the county (if not otherwise changed by uncounted votes, if any, in favor of the respondent, or by deductions from the contestant), to stand, 358 votes in favor of the former, and 575 for the contestant, giving the latter a majority of 271 in the county.
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The learned court quashed the petition, on motion, because it was not alleged in it, that these irregularities were committed for the purpose of advancing the election of the respondent and defeating the complainant. This was not material, we think, nor necessary; had it been, the petition might have been amended; it was merely formal; the complaint was of an undue election, that the respondent was illegally and wrongfully returned, and the contestant duly elected and entitled to the return; this was sufficient to give jurisdiction. Another reason for quashing the petition was, that it did not allege that illegal votes were given, in those districts, enough to change the result of the election; a third was, insufficiency of the complaint in specifying the irregularities complained of in Corydon and Liberty townships; a fourth, that if all the allegations in the petition were true, they were insufficient to change the result of the election; and lastly, that no decree or order had been prayed for in the petition, nor time or place fixed for a hearing.
The second and fourth reasons for quashing the complaint, seem entirely to ignore, as of no consequence, a compliance with the law fixing the places for holding the election in those districts, by acts of the legislature and court, to wit: by the act of 5th March 1841, in Bradford township, at the school-house in Littleville; by the act of 4th February 1859, in Hanilin township, at the Aldrich school-house; and in the township of Wetmore, by the court of quarter sessions of McKean county, at the house of William Toby. The complaint shows that the election for 1870 was not held at either of the above-mentioned places, but at other and entirely different places, neither fixed by law nor by the action of the court.
The places for holding the general elections in this commonwealth, have always been fixed, either directly by the legislature, or by the courts, under authority given them by the legislature, or by a vote of the people, under the act of 20th April 1854. Hundreds of acts on our statute books fully attest this legislative supervision of the appointment
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of places for holding general elections, which is extended to all possible contingencies that may occur; for instance, where a particular building is designated as the place for holding the elections in a township or district, and is destroyed, changed or altered, so as to be unsuited for the purpose, another place must be assigned by the proper court, subject to the action of the electors under the act of 1854: see act of 17th April 1866. Even in case of the existence of a contagious disease, rendering a change necessary, the place for holding the election must, in that case, be designated by the governor, and notice thereof given by the sheriff, at least seven days before the day of the election: see 94th section of the act 2d of July 1839.
Can it, therefore, be maintained, in view of these provisions of law, that the places fixed for holding elections are merely directory, and may be disregarded by the election officers, without any other effect on the poll than that which takes place in all regularly-defined districts? We, assuredly, think not. What is the meaning of the requirement in the act of 1839, of the notice to be given by the sheriff, by proclamation, of the time and place of holding the general elections, if not to notify voters where they are to assemble for the purpose of voting? This duty is mandatory upon the sheriff. A fixed place, it seems to me, is as absolutely a requisite, according to the election laws, as is the time of voting; the holding of elections at the places fixed by law, is not directory; it is mandatory, and cannot be omitted, without error. I will not say that, in case of the destruction of a designated building, on the eve of an election, the election might not be held on the same or some contiguous ground, as a matter of necessity; necessitas non habet legem; but then the necessity must be absolute; discarding all mere ideas of convenience. It is, however, not necessary to adjudicate authoritatively as to this. To remove the place of election three miles from that designated by law, or, from a village and across a considerable stream a half mile or more distant from the village