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(Qualification of election officers.) tled to the benefit of all ballots which were manifestly intended for him. Turner o. Baylies, 1 Cong. Elect. Cas. 234; Williams o. Bowers, Ibid. 263; Willoughby v. Smith, Ibid. 265; Root o. Adams, Ibid. 271 ; Mal. lary o. Merrill, Ibid. 328 ; Colden v. Sharpe, Ibid. 369; Hagunin 1. Ten Eyck, Ibid. 501 ; Wright o. Fisher, Ibid. 518; Chapman o. Ferguson, 2 Cong. Elect. Cas. 267.

BOILEAU'S CASE.

In the Court of Common Pleas of Philadelphia.

MARCH TERM 1845.

(REPORTED 2 Parsons 503.)

[Qualification of election officers.]

It is no sufficient ground for setting aside an election for alderman, that one of the candidates for another office acted, temporarily, as a clerk of the election, without having taken the oath required by law.

Nor, in the absence of proof of fraud, that there had been a thoughtless inconsiderate interference with the tickets, by a third person, who came into the room whilst the officers were canvassing the tickets.

This was a petition contesting the election of Isaac Boileau to the office of alderman of the Third ward of the district of Kensington. The facts of the case are fully stated in the opinion.

KING, P. J., delivered the opinion of the court. In the matter of the contested election of alderman of the Third ward, Kensington, two grounds have been assigned as affording sufficient reasons for setting aside this election. 1. It is said, that one of the candidates for assessor acted as clerk of the election, without taking the oath required by law: 2. That third persons, not officers of the election, meddled with the tickets voted, and otherwise interfered improperly during its progress.

The facts connected with the first alleged irregularity (Qualification of election officers.) seem to be these: on the 16th March last, the polls of the Third ward of Kensington, were regularly opened by proper officers, duly sworn or affirmed according to law, for the election of ward officers; towards evening, one of the clerks of the election became so much intoxicated, as to be disqualified for the further execution of his duties; at the request of the inspectors, Samuel C. Coxe acted as clerk, in his place, until after the closing of the polls, and until about three in the morning of the next day, when the formally appointed clerk, having become relieved from the effects of his debauch, appeared and signed the returns. Mr. Coxe, it is admitted, was not sworn or affirmed, as is required by the election law; and he was a candidate, at this election, for assessor. The majority given for Mr. Boileau over his competitor, Mr. Streeper, for alderman, was seventy-three.

The facts connected with the second ground of complaint, viz: the improper interference with the election, by persons not officers, are not very precise. The deposition of Lewis Green, one of the inspectors, however, establishes, that Mr. John Haines, a candidate for judge, was occasionally in the room where the election was held, during its progress, and after the polls closed, and that a few of the assessor tickets were opened by him; being admonished against this by Mr. Green, he desisted. Daniel L. Young proves that Haines emptied the assessor's box, after the poll closed, but that he stopped, on being told by Mr. Green not to handle any more tickets. Haines, himself, on his examination, admits that he handled some of the assessor's tickets, but no others. Edmund Taylor proves that Haines did handle tickets to a greater extent than was observed by the other witnesses, though his testimony is defective in precision. Mr. Coxe, undoubtedly, assisted the other officers in ascertaining the result of the election, by opening tickets, keeping the tally, &c., and indeed, seems to have acted as if he had been a regularly-sworn officer.

(Qualification of election officers.) It has not been pretended that this election is, in any particular, tainted with actual fraud; no evidence has been adduced, either showing legal votes to have been rejected, or illegal votes received; the election seems to have been honestly conducted, and to be a fair expression of the sentiments of the people of the ward. Against Mr. Coxe's fidelity, in the execution of the duty he assumed, at the request of the inspectors, nothing has been advanced; and although Mr. Haines did interfere in the count, during its progress, nothing has been shown to establish that anything wrong or improper was done by him, except so far as any interference with the duties pertaining to the regular officers, was improper. If, therefore, this election is set aside, it must be, because there is some incurable irregularity in conducting it, which requires the court to take this course. It is material, to be borne in mind, that the act of assembly which gives this court authority to inquire into and determine upon a complaint of the undue election of an alderman or justice of the peace, requires us, in judging concerning such election, to proceed“ upon the merits thereof;" hence, in all cases in which the irregularities in conducting an election are not of a flagrant character, we are required to look into its good faith and integrity; and if they are manifest, we are not to defeat the expression of the popular will, because of some slip in the minor details of the election, which does not prevent our ready ascertainment of what that will truly is. This is the spirit of the act of assembly giving us this delicate jurisdiction; a spirit in entire harmony with our popular institutions; with this landmark before us, indicating what ought to be our direction, we will proceed to inquire into the sufficiency of the objections interposed against the election of alderman Boileau.

The first arises from the fact that Samuel C. Coxe acted as one of the clerks of the election, without being sworn, he being, at the same time, a candidate for the office of

That Mr. Coxe ought to have been sworn, before

assessor.

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(Qualification of election officers.) proceeding to execute the duties of clerk of the election, is undoubted. If the clerk of an election, originally chosen, become, from any cause, incapable of executing his duties, his place may be supplied by a new appointment; but the substituted officer is required to act on oath or affirmation; hence, Coxe ought not to have acted without taking the qualification required by law. But is the omission to take this qualification, such an irregularity as should induce us, determining on this election, “on the merits thereof,” to set it aside? Under the facts disclosed, I think not. All the other officers were sworn; he was called in at a late period, in consequence of the temporary inability of the original sworn officer to act; the neglect to swear him is such an omission as might naturally have been made by persons not familiar with the law, and who may have supposed that, having made one appointment in the manner prescribed by law, their authority was exhausted.

Although in a case in which it is shown, that in making the preparatory arrangements for holding an election, a reckless disregard of, or a criminal carelessness as to, the directions of the law has been manifested, we would hold such an election undue and illegal; yet, where a single mistake, such as occurred here, has taken place, and where there is no reason to infer that the officers of the election acted with bad faith, we would not adopt a course so stringent; such an irregularity is exactly the one the legislature considered we ought to make an allowance for, when we are directed to decide such a disputed election "on the merits thereof." To set aside this election, for such a cause, would smack too much of technicality, for a decision purporting to be made on the merits. I do not mean to say, that the omission to swear or affirm the officers of an election, might not be a sufficient cause for pronouncing it null; under appropriate circumstances, this result would inevitably follow such an omission. But in a case like the present, where the substituted clerk was called in at a late period of the election; where the person (Qualification of election officers.) substituted was, like Mr. Coxe, the assessor of the last year, attending the election as such, and where no circumstances savoring of fraud or contrivance appear in the whole transaction, it would be going too far, to declare that, because of such an irregularity, the popular voice, honestly expressed, should not be suffered to prevail.

Nor is the fact that Samuel C. Coxe was a candidate at the election at which he acted as clerk, a sufficient cause for declaring it void. By the 2d section of the act of 13th June 1840 (Purd. Dig. 385), it is declared, that neither that act, nor the general election law to which it is a supplement, “shall be construed to prohibit a judge, inspector or clerk of election from being voted for to fill any township office, or render either or any them ineligible to hold the same. The fact of Coxe's having acted, while a candidate for assessor, as clerk of the election, could, therefore, have no effect on his own election, and certainly none on that of the other candidates. Had the law of 1840 never been enacted, I should have been of opinion, that votes given to an officer of election, could not affect the legality of such election; such votes might be null as to him, on the ground of his want of legal eligibility, but could have no further operation. The personal ineligibility of an election officer, to be chosen to any office at an election at which he acted, could not have the superadded effect of making void the whole election, by any reasonable construction of a law which simply declares all such officers ineligible to any office voted for at such election; this would be punishing the unoffending, for an act over which they had no control. But the proviso of the 2d section of the act of 1840, which declares that the ineligibility of election officers shall not extend to township offices, supersedes all speculation on this subject.

The alleged interference of Mr. Haines, although it was improper, is equally inefficacious for the purpose of the complainant. No fraud is either proved against or attributed to him; nor does the testimony justify any such imputa

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