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(Place of holding elections.) 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 Hanılin 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
(Place of holding elections.) 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 (Place of holding elections.) where it ought to have been held, or, from a designated school-house to a vacant house more than half a mile distant therefrom, without authority or any absolutely controlling circumstances, must render the election therein void, and if the votes taken be counted, constitutes an undue election. This was decided by a committee of the house of representatives of this state, in setting aside an election return from Potter county, which gave the seat to the contesting member, Mr. Beck, against the sitting member, Mr. McGhee; the sole ground was, that the election had been held at a place not fixed by law, in one of the townships of the county, but at another place. House Journal 1856, page 204. This was not a decision by the house, in its political character, as suggested, but by a committee, in a judicial character; there were one or more distinguished lawyers upon it; indeed, the election laws are generally as well understood by laymen, in the country, as by lawyers, and it is no argument against that decision, that laymen were of the committee.*
By the 15th section of the act of 2d July 1839, the inspectors and judges are required “ to meet at their respective places appointed for holding the election in the district to which they respectively belong, before nine o'clock in the morning of the second Tuesday of October of each and every year,” &c. Where is there any authority for meeting elsewhere? I find none. But this was disregarded as to the places fixed, in the case in hand, without even an attempt to show an overruling necessity justifying it, if we could concede that that might justify it. It seems to us, that if the judges could carry and hold the election in districts half a mile distant from the appointed places, they might carry and hold them three miles, as they did in one district complained of, and if they might go three miles distant, they might, without altering the
* A distinguished senator lately said to the author, that modern legislative precedents were of no authority; that the decision of a contested election had become simply a question of power, without regard to the right.
(Place of holding elections.) principle of action in the least, go ten. This would, assuredly, inaugurate a fruitful source of fraud, and furnish a most fertile field of litigation; we cannot give our assent to any such practice. In Juker v. Commonwealth, 20 Penn. St. R. 484, it is said, that where the law prescribes a time and place for holding a corporate election, the officers may not hold the election at another time and place. Without elaborating this point further, we regard the elections held in the districts named, as void, for the reasons suggested, and hold that the returns should have been stricken out by the return judges, if the facts be as alleged, and so far they are not disputed.
That a whole election district may be stricken out, as showing an entire disregard of conformity to law in holding it, either by design or ignorance, is now well settled. Juker v. Commonwealth, 20 Penn. St. R. 484. The minority opinion of this court, in the case of the contested elections of 1868 (65 Penn. St. R. 44), was referred to in the argument of respondent's counsel, for a contrary doctrine from that claimed here, but he misquotes that opinion; it is there said, “I maintain, that there is nothing which will justify the striking out of an entire division, but an inability to decipher the returns, or showing that not a single legal vote was polled, or that no election was legally held;" per Thompson, C. J. The last we hold is what occurred here, to wit, that no election was legally held in the districts mentioned in the complaint of the petitioners. The doctrine of striking out entire divisions, was held by the common pleas in that case, and in Batturs v. Megary, 1 Brewst. 162, in which we are referred to a decision, in 1859, by Judge Taylor, in Cambria county, to the same effect.* In my opinion, however, this ought never to be done, where a legal election, as to time and place, is held, although fraudulent votes shall have been received; the remedy, in such a case, is, to purge the polls, by striking out the fraudulent votes, if possible.
* Cambria County Election. Altoona Tribune, 10th February 1859.
(Place of holding elections.) We need not notice the suggestion, that the county treasurer is not within the general election laws requiring time and place to be fixed for the election, as is the case with other officers. This is so obviously erroneous, that we will not spend time upon it.
We think that, if the facts be as stated in the petition, in regard to Corydon township, viz: that the election was not opened until two o'clock P. M. of the day, instead of between six and seven A. M., as required, the return should have been rejected; but I think this cause of complaint is not sufficiently averred, as it is conjoined, in its injurious effect to the contestant, with Liberty township; it should have been set forth separately. If necessary, this, being formal, perhaps, might be amended, by stating the loss of votes occurring to the contestant in each of these districts; but it is likely that this will not be necessary, if the other causes of complaint in the petition be made out. It seems, that amendments are allowable in cases of this kind. Contested Election Cases of 1868,65 Penn. St. R. 35. (Opinion of the majority of this court, per Agnew, J.)
In conclusion, we think the learned court erred in quashing the petition in this case, and that the order to that effect should be reversed; and it is now ordered, that the same be reinstated on the record, and that the court of quarter sessions of McKean county do proceed to hear, consider and decide this case, in accordance with law and the views herein expressed.
Proceedings reversed and procedendo awarded.
The doctrine of the principal case, that time and place are of the substance of every election, is generally conceded to be law. Dickey o. Hurlburt, 5 Cal. 343. (See People v. Murray, 15 Cal. 221.) Accordingly, it was held, that if the election officers opened the polls and held the election at a place not authorized by law, and at a distance from the place appointed, without any excuse therefor, the poll must be rejected as invalid. Knowles o. Yeates, 31 Cal. 82. So, it has been determined