(Amendment of petition.)

spear of Ithuriel, stands exposed to the rebuke and condemnation of the law."

In my opinion, we should be wanting in a faithful administration of that high trust which the legislature has confided to us by the act of 1839, if we should refuse the amendment now asked; we should give countenance to an alleged fraud, and perhaps conceal it from public view; a thing which no principle of law sanctions, and which, as a judge, I never have suffered, nor ever will suffer, when presented to my view.

It has been contended, that the amendment, in the form now offered, cannot be allowed, inasmuch as there are more than thirty citizens who signed the original petition, and only twenty-one of them have signed a petition for the present amendment, although verified by the same persons who made the affidavit to the original petition. This objection, on no sound principle, can be sustained. Suppose an election has been carried by the most abominable fraud; the act requires there should be twenty citizens of the county to sign a petition for the contest; ten of those who were concerned in the fraud might unite with ten innocent individuals in the contest, and then appear and ask to withdraw, or refuse to unite in an amendment clearly admissible, and thereby conceal the very fraud they had concocted and perpetrated. I concur with Judge Woodward, in his able opinion in the Clinton County Election Case, 3 Penn. Law J. 160, 166, that the jurisdiction of the court attached from the moment the petition was filed, and a few individuals, by withdrawing, should not shut out all inquiry. Here, the number have signed the petition to amend, that is required by the act, which is a sufficient answer to the objection; and even if they had not, we would never suffer the course of public justice to be obstructed, because some choose to withdraw. Therefore, in our opinion, the amendment proposed should be filed, and be considered as forming a part of the ori

(Amendment of petition.)

ginal petition for the purpose of a future investigation of the case.

CAMPBELL, J., dissented.

Amendment allowed.

The right of the courts, under their common law power to permit an amendment of a petition contesting an election, was affirmed by the supreme court, in Gibbons v. Sheppard, 65 Penn. St. R. 20, 35. "In point of reason," said Judge Agnew, "why should the court not have power to amend, in a contested election case? It is a judicial remedy, and concerns important rights. On what ground should the cause of the people be held so strictly, that a mere specification of facts within the same general complaint, relating to the same contest, and the same returns, should not be amended in order to reach the very merits the court is ordered to try." It was held in the same case, that it was in the power of the court below to allow an amendment, nunc pro tunc, after the case was closed; and that being a discretionary power, the propriety of its exercise could not be reviewed by an appellate court.

The amendment, however, must be confined to defining more clearly the charges made in the several specifications in the original petition. If it be inconsistent with the petition, or attempt to introduce new matter, it will not be allowed. Mann v. Cassidy, 1 Brewst. 32; Thompson v. Ewing, Ibid. 68, 97, 101. But the amendment need not be verified by the oaths of the identical persons who swore to the truth of the original petition. Mann v. Cassidy, 1 Brewst. 11.

The court will not permit an amendment of the answer, during the progress of the hearing. This was decided in Mann v. Cassidy (Report 386), where Judge Thompson says: "This case differs from most others, and we must shape our decisions according to its peculiarities; the contestant is bound, within a certain time, to file his petition, setting forth his objections; and in our opinion, after his case is commenced, he cannot introduce new matter. The answer put in by the respondent, sets up fresh subjects of inquiry; in addition to a mere formal traverse, he puts in distinct charges, bearing upon nothing in the petition, but being an attack which would have been made by Mr. Cassidy, if Mr. Mann had been returned; if that had been the case, fairness would have required him, in like manner, to spread his whole case upon the record.

(Amendment of petition.)

So far as the answer is responsive to the petition, the respondent can go into the fullest inquiry; but so far as it sets up new matter, we think he must aver it all, before his case commences; the same fairness which required the contestant to do this, applies with equal justice to the respondent."

But in Dechert's case, it was ruled, by the senate of Pennsylvania, that a legislative election committee is not authorized, by law, to permit a petition to be amended in matter of substance. "Amendments merely formal, including corrections of error, may, of course, be made at all times by permission, because they will not change the substance of the petition, or the character of the issue to be tried. It is possible, that amendments affecting substance have sometimes been allowed by committees, in view of precedents drawn from courts of justice; but, if so, their allowance must have been without due consideration. Courts of record claim a common law power of amending election petitions before them; and this power was affirmed by our own supreme court in a case recently determined; but clearly, election committees of the legislature have no common law jurisdiction or powers; they are creatures of the statute of 1839, and have only such powers as the statute gives them, among which no power of amendment is contained. Besides, the oath to be taken by members of election committees, as prescribed by the 137th section of the act of 1839, is, in itself, almost decisive against their possession of any general amendment power; that oath is 'to try the matter of the petition, and give a true judgment thereon, according to the evidence, unless the committee shall be dissolved;' obviously, they are to try the matter of the petition as it comes to them, and not as it may stand after they shall have changed it, in any essential particular, by amendment." 16 January 1871.

351

MANN v. CASSIDY.

In the Court of Quarter Sessions of Philadelphia.

SEPTEMBER SESSIONS 1856.

(REPORTED 1 BREWSTER 11.)

[Striking out specifications.]

The court will strike out from the petition contesting an election, all specifications which do not set forth matter sufficient to throw out the returns, or to hold the election void.

The petition must state the facts distinctly; charge an undue election and false return; show the figures returned for each candidate, the votes received by each, and the divisions in which votes were illegally received; also, the manner in which the fraud was effected, and the number of votes fraudulently received; but the petitioners need not set out their full knowledge, the names of the illegal voters, nor the reason why the votes were illegal.

This was a petition contesting the election of Lewis C. Cassidy to the office of district-attorney for the city and county of Philadelphia, at the general election of 1856.

The petition averred that Lewis C. Cassidy was unduly returned as having received 34,475 votes, and William B. Mann as having received 33,924 votes for said office; whereas, the petitioners alleged that Lewis C. Cassidy received not more than 32,915 votes, and that William B. Mann received at least 34,399 votes; whereby the latter had a majority of at least 1484 votes, and was duly elected to the office. The petition then proceeded to specify the grounds of contest, the form of which, from the 3d to the 46th inclusive, was as follows: 3. "That in the 5th division of the 1st ward of the city of Philadelphia, the election officers of said division received the votes of persons to the number of ten, and upwards, for the office of district-attorney, which were taken and counted in the general return for Lewis C. Cassidy, for district-attorney, none of whom were qualified electors in said division." Then fol

(Striking out specifications.)

lowed a series of specifications averring that, in certain election divisions, at the election for inspectors, the voters fraudulently divided their vote, so as to elect two inspectors representing their own particular views; that in said divisions, certain votes were received for Lewis C. Cassidy for district-attorney, and that the inspectors in receiving such votes utterly neglected to comply with the directory provisions of the election law. The respondent's counsel moved to strike out the specifications, except the 1st, 2d and 43d, and to quash the petition for the insufficiency of the remaining specifications.

B. H. Brewster and McCall, for the respondent.

F. C. Brewster, D. P. Brown and John M. Read, for contestants.

THOMPSON, P. J., delivered the opinion of the court. It is impossible to specify with precision all that a petition contesting an election must contain. If presented according to the provisions of the law, all that the court can require is, that it shall state, in an intelligible manner, and with due precision, such facts as, if sustained by proof, would show that there has been an undue election and false return. It is obvious, that if the court were to require the same precision and certainty in an election petition, as in the pleadings between parties to a suit at law (the object of which is, to produce a single issue), the difficulty of stating precisely the manner in which a fraud had been perpetrated, or an undue return made, would, to a great degree, nullify the law itself, which designs that such charges shall be investigated. The rule must not be held so strictly as to afford protection to fraud, by which the will of the people is set at naught; nor so loosely as to permit the acts of sworn officers, chosen by the people, to be inquired into, without an adequate and well-defined cause. To ascertain and to apply the proper rule, has