(Striking out specifications.) The concluding allegation of this specification, that the election in said division was not a fair election, held according to the intent and spirit of the law, but was a fraud contemplated and directed by the majority of voters in said election division, and carried on by the election officers, who were the agents of the said majority, is a repetition of the charge first stated in this specification, which charge has already been disposed of, as a matter not within the scope of the present proceeding. Were we to attempt to investigate such a charge, we would be at a loss to understand, how an election held at a time and place prescribed by law, could be shown to be a fraud contemplated and carried on by the majority of the voters. There is a want of intelligibility in such a proposition, which affords an additional reason for excluding it from the petition. This whole specification, the separate allegations of which we have thus briefly considered, we can view in no other light than as a charge of conspiracy entered into by the majority of the voters of the election division, to perpetrate a fraud; the means to be employed are stated, but the only definite result arrived at, so far as it can affect the case before us, seems to be, the reception of 200 illegal votes for Mr. Cassidy. Assuming that the facts stated could be fully proved, would it be our duty to consider the election thus conducted, entirely void, and to disregard and throw out the returns, or should we deduct the votes fraudulently received from the number returned for the party for whom they were counted? Where the latter course can be pursued, it seems not only consonant with justice, but in pursuance of the law which requires us to determine which of the candidates has the greatest number of votes; the votes of honest electors are not thereby lost, and they disfranchised. This course has been heretofore pursued by the court in similar cases, and great pains have been taken to ascertain and correct the fraud, (Striking out specifications.) rather than to disfranchise the citizens of an entire election district. Adopting this principle in the present case, we do not perceive that any benefit can result from retaining in the petition any part of the specification under consideration, and the same is stricken out. This ruling applies to all the specifications after the 46th. The petition thus expurgated will embrace the specifications from No. 1 to No. 46 inclusive; and as there is sufficient therein, if proved, to change the result of the election, the motion to quash, because the 1st, 2d and 43d specifications do not contain matters sufficient for that result, must, of course, be refused. It was ruled in an early case, that where some of the grounds alleged in the petition were mere irregularities, which, if sustained by proof, would not be sufficient ground for a setting aside the election, the court would strike out such allegations, and would not put the respondent to the trouble of taking proof. Kneass's Case, 2 Pars. 553. Thus, a specification merely alleging the absence of tally-papers and praying for a recount, was stricken out as immaterial. Thompson v. Ewing, 1 Brewst. 68. So was a specification charging fraud in a prior election at which the election officers were chosen. Weaver v. Given, Ibid. 140. But in the late cases which have come before the court that decided Kneass's Case and Mann v. Cassidy, that court has departed from the wholesome rule laid down by their predecessors, and has refused to strike out specifications charging a disregard of the directory provisions of the election law, by the officers of the election. Batturs v. Megary, 1 Brewst. 162. And see Thompson v. Ewing, Ibid. 68; Weaver v. Given, Ibid. 140. This departure from the ancient landmarks is but another proof of the vicious policy of vesting discretionary powers, in political cases, in an elective judiciary holding office for a limited term of years. We do not expect superhuman virtue from frail men, and it is utterly impossible that in such cases the scales of justice should be held with an even hand; political prejudice, the fear of offending the body of their partisans, and a thousand other causes combine to destroy the independence of the courts in political causes. And we do not hesitate (Issue and recounting of ballots.) to re-assert that no greater danger exists to the permanency of our free institutions than this discretionary power of the judges; it is wholly incompatible with political freedom. The right to strike out incompatible specifications was asserted by the supreme court of Pennsylvania, in Ewing v. Filley, 43 Penn. St. R. 384. Regularly, the motion to strike out should be submitted before the evidence is gone into; but the right to move to strike out may be reserved. Thompson v. Ewing, 1 Brewst. 68. KNEASS'S Case. In the Court of Quarter Sessions of Philadelphia. DECEMBER SESSIONS 1850. (REPORTED 2 PARSONS 599.) [Issue and recounting of ballots.] An issue to a jury will not be directed, to try the question of an alleged fraud in an election. An application for a recount of the ballot-boxes will not be granted, unless some specific mistake or fraud be pointed out in the particular box to be examined. KING, P. J., delivered the opinion of the court. I will notice two matters which occurred during the hearing, on which my opinion was expressed against the respondent, and which I have since fully reconsidered; these are, the application made to the court to award an issue, in order that the whole case might be submitted to a jury; and the request that the court would direct a general recount of all the ballot-boxes of the city and county of Philadelphia. I. As to the first, I remain of opinion, that it is inadmissible in principle, and even if so admissible, that it was, in this instance, made out of time. The legislature, in clothing this court with the powers of an election com (Issue and recounting of ballots.) mittee, in cases of contested elections, contemplated a prompt and immediate termination of such exciting conflicts, without subjecting them to the delay incident to technical actions at law; so far has the law giving us the power, gone, that all right of reviewing our proceedings and decisions is taken away from the supreme court, our determination of every question arising, being absolutely "final and conclusive." If we should now accord this request to the respondent, we, of course, must do so to every other contestant or respondent in an election contest, involving disputed questions of fact; under such a system, what becomes of the promptness of action and decision, demanded by the public interest and feeling, contemplated by the legislative provisions? Delay must take place in preparing and setting down such an issue for trial; after a trial of the most tedious and expensive kind, the jury may disagree (one dissenter from the rest being adequate to produce that result), and their consequent discharge; another and another trial may follow, with like results, until one of the parties, weary with delay, or bankrupt in prosecuting his rights, abandons them in despair; should a jury ever agree, either party might, during the trial, claim bills of exception to the admission or rejection of testimony; writs of error might follow, and the litigation be thus further protracted. A system tending to such results, might suit the party having the return, who, in the meantime, holds the honors and receives the emoluments of the office; but it would operate most unjustly to the contestant, if rightly entitled to the return. The law gives us the power of a legislative election committee: how would a proposition be received, made to such a committee trying the contested election of a governor, a judge of the supreme court, an auditorgeneral or any other of the high elective officers of the state, to cause proceedings to be instituted in a court, to try the question before them by jury? As I doubt such a (Issue and recounting of ballots.) proposition ever being seriously made, I am at a loss to suppose how it would be seriously answered. But this application came too late, if it had been admissible under appropriate circumstances. This investigation commenced on the 12th of February, and had been progressed in until the 7th of March, when this application was first made; all the contestant's witnesses in chief, amounting to hundreds, and part of the respondent's, had been heard; if a jury trial had been desired or contemplated by either party, ought it not to have been demanded at the outset of the proceedings? The specifications admitted clearly pointed out, that questions of fact, and grave questions, too, were involved in the inquiry; so that it cannot be argued, that the knowledge of such questions existing in the cause, was only disclosed by the examination of the witnesses. Under such circumstances, would it be just in a court to adopt a practice that would permit a party to delay his application for a jury trial, until all his adversary's case had been fully disclosed to him, and then grant it? Such a delay alone, in my opinion, affords, in itself, an adequate reason for refusing the application, if none other existed. To a court, the reference of such a question to a jury, might be a grateful and desirable transfer of an oppressive public duty, to a body not directly responsible to the people. But would this be an execution of the duty imposed upon the judges by the law? or would it not be an evasion of it? II. In reference to the application made to us, to order a recount of all the ballot-boxes of the city and county, I remain of the same opinion as that originally expressed when the motion was made; I believed it then, and I believe it now, inadmissible in principle; and even if admissible, not to have been made in a suitable stage of the proceedings. In the case of the contested election of sheriff Lelar, we held, after full argument and deliberation, that to induce us to order a recount of all the ballotboxes of a county election, something definite must be |