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That the power of the canvassers over the returns of the election, is exhausted, when they have once announced the result, and given their certificate to the successful party, seems to be generally conceded. The same principle was decided by the supreme court of New York, in Hartt v. Harvey, 32 Barb. 55; and in State v. Warren, it was decided, in Delaware, that where no certificate or other formal mode of making known to a person his election to a public office, is required by law, the result of the election, as ascertained and announced at the close thereof, is conclusive upon the election officers, and cannot afterwards be reconsidered or varied by them. 1 Houst. 39. In Louisiana, where an election was contested upon the ground, that after the commissioners had made their return, they proceeded to count the votes over again, and found there was a difference which would have changed the result, it was held, that as it did not appear that the mistake was committed on the first, any more than on the second counting, full effect must be given to the official returns. Ramsey v. Callaway, 15 La. An. 464. And see Bowen v. Hixon, 45 Mo. 340.
The certificate of the board of canvassers is conclusive of the election of the officer, in a controversy arising collaterally, or between the party holding it and a stranger; but between the people and the party, in an action to impeach it, it is only primâ facie evidence of the right. People v. Cook, 8 N. Y. 67; People v. Vail, 20 Wend. 12. The same principle was determined by the supreme court of California, in People v. Jones, 20 Cal. 50; and in Pennsylvania, in Commonwealth v. County Commissioners, 5 Rawle 75.
HULSEMAN v. REMS.
In the Supreme Court of Pennsylvania.
OCTOBER TERM 1861.
(REPORTED 41 PENNSYLVANIA STATE REPORTS 396.)
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Where the return judges have given certificates of election to the persons appearing to have the highest number of votes, in the absence of proof that they acted fraudulently, the courts will not summarily interfere, by injunction, though it be evident that some of the returns were forgeries, and that through them several of the candidates had improperly obtained certificates of their election; it is a case to be tried by the proper tribunal appointed for the determination of contested elections.
This was a bill for an injunction to restrain the defendants from using a certificate of election which had been issued to them, as members of the common council of the city of Philadelphia, on the ground that the return judges had met at an unusual place and that they had counted, among the returns, certain fraudulent and forged certificates, purporting to be returns of the votes cast by certain. military companies in the service of the United States.
Hirst, for complainants.
Briggs, for the defendants.
LOWRIE, C. J., delivered the opinion of the court. The law providing for the voting of soldiers, who are away from their homes in actual service,* so clearly covers, by its terms, the case of municipal elections, which are held at the same time as the general election, that we are unable to find any argument that is at all satisfactory, for
* Chase v. Miller, which held this law to be unconstitutional, had not then been decided.
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excepting the late municipal election of Philadelphia out of its operation. We must, therefore, declare that the soldiers in camp had a right to vote for their proper municipal officers at home, and to have their votes counted on the second Tuesday of November, if they were properly certified and returned. It was, therefore, the duty of the judges of the 19th ward to meet on the second Tuesday of November, so as to include in their enumeration, such returns of the votes of the soldiers as should be properly certified to them, and this, whether they had a regular adjournment for that day or not. They did meet on that day, and include in their enumeration the votes of the soldiers, issued certificates to those candidates who, by the votes thus included, appeared to have been elected; and now we are asked to declare those certificates illegal, fraudulent and void, to enjoin the defendants from using them, and to require them to be delivered up and cancelled.
Possibly, some of the camp returns, or pretended returns, had obtained so bad a reputation by the public examination which had been had of them before the court of common pleas, that judges who were carefully honest, would have discovered very clear reasons for rejecting them; but, even if we have authority for examining this matter, we have no convincing proof that the return judges acted fraudulently in receiving these returns. They seem to have had formal certificates of them, and they may have committed a mistake, rather than a fraud, in not duly inquiring of the channel through which those certificates were received, and may very honestly have concluded that they had no authority to inquire into the authenticity of papers which came into their hands in proper form. We find fraud enough in these camp returns, without taking suspicions for evidence or proof of it, and without condemning those against whom the evidence is incomplete.
It is alleged, that on the second Tuesday of November,
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some of the return judges refused to meet, and that those who did meet, met at an unusual place, to count the soldiers' votes and to issue the certificates; but the affidavits of the defendants seem to us sufficiently to account for this, by showing that the duties of the return judges were so interfered with, by a disorderly crowd, that they could not be performed at the usual place.
We have, therefore, no ground left for our interference, but the single one, that the return judges included in their enumeration, returns purporting to be from three companies of volunteers, which were forgeries. We admit that, in the evidence before us, it appears clear to us all, that those returns are forgeries, and that it was only by their inclusion in the enumeration, that the defendants have obtained certificates of their election. We admit, therefore, that the evidence proves that these certificates of the election of the defendants are founded in manifest fraud, the forgery of some unknown person, but we do not find that the defendants had any hand in it, and we trust they had not. Can we, on this account, interfere and declare the certificates void? We think not. According to our laws, the election has passed completely through all its forms, the result has been, in due form, declared and certified, and the defendants have received their certificates of election and are entitled to their seats as members of the common council. The title-papers of their offices are complete, and have the signatures of the proper officers of the law; and if they are vitiated by any mistake or fraud in the process that has produced them, this raises a case to be tried by the forms of a "contested election," before the tribunal appointed by law to try such questions, and not by the ordinary forms of legal or equitable process before the usual judicial tribunals. It is part of the process of political organization, and not a question of private right, and therefore, the constitution does not require that the courts shall determine its validity.
The law has appointed a special tribunal to try just such
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a question as this, and we can have no right, to step in between the case and that tribunal, and alter the return of the election judges and annul their certificates. Plain as the fraud appears, and earnestly as we condemn it, as citizens, it is no part of our functions as a court to sit in judgment on it. The common council is the proper tribunal to try cases of contested elections relative to its own members, and there the fraud and forgery must necessarily be tried and decided with final effect; they are appointed by law to try the whole case, and they alone can try it. We decided this, last year, at Philadelphia, in the case of the Commonwealth v. Baxter, 35 Penn. St. R. 263, a case from Bradford county, where a commissioner of highways had received a regular certificate of election, and where we decided that it could be avoided only by the regular process of a contested election case. Perhaps, that case may be found worthy of examination.
If, in this way, we suffer a gross fraud to pass through our hands without remedy, it is not because we have any mercy for the fraud, but because we cannot frustrate it by any decree of ours, without an act of usurpation; another tribunal is appointed to administer the remedy, and we believe that, on proper application, it will administer it rightly, according to the evidence it may have; and if we had any doubts of this, we should still not be justified in interfering. Sad indeed, very sad, has been our recent experience of election frauds; but we cannot believe that our partisanship has become so reckless, and our elective franchise so carelessly exercised, and our thirst for office and power so intensely selfish, that any official body will sanction so base and frightful a fraud upon the public, as this now appears, or that any man deemed worthy of an office would accept it under such circumstances.
It is suggested, that there is danger, if we do not interfere, that this fraud will be persisted in by the defendants, and adopted by their co-partisans, and will be resisted by riotous violence. Possibly this may be so; for,