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(Issue and recounting of ballots.)

preferred against each; and that we could not, on a general allegation of errors believed to exist in all, authorize the perilous experiment of testing every election return, by the count of the ballot-boxes of every district in the county. We then refused to Mr. Deal a recount of all the ballot-boxes of the city and county, because, although he complained of general errors in the count of all, he designated particulars in none. We refused this apparently reasonable request, from a deep sense of the danger that would follow, if we should too readily accede to such plausible requisitions; we saw that if we once acquiesced, on general allegations of error in the count, we would be bound by the result of such a count, and that thus we might be made the instruments of defeating the popular will, by affording convenient means of accomplishing it. We knew we were bound to order an examination of the boxes, and a recount of the ballots, whenever the return of a particular election district was assailed, for causes stated with sufficient precision to induce us to entertain a complaint preferred against it; we felt that further than this it would be unwise to go, and on that ground our foot was placed, from which it never since has been, nor ever will be moved.

The contestant, in his original petition, demanded such a recount, for supposed error, stated in the same way as has been done by the respondent; this was refused by the court, although accompanied with precise allegations affecting particular districts, judged by us to be adequately stated to authorize an inquiry into them; surely, we cannot now accord to one party, that which, from great public considerations, we refused to the other, though asked at the outset of this investigation. But, as in the instance of a demand for a trial by jury, I am of opinion, that this demand for a recount was not made at the appropriate time.

CAMPBELL, J., dissented.*

* See 1 Phila. 169-70.

(Issue and recounting of ballots.)

That the parties have no right to claim an issue, in a contested election case, was decided by the supreme court of Pennsylvania, in Ewing v. Filley, 43 Penn. St. R. 389; it was there said, by Lowrie, C. J., delivering the opinion of the court: "It is objected that the act of 1839, instituting this form of proceeding, is unconstitutional, in so far as it deprives a party, claiming a right to a public office, by a popular election, of a trial by jury of all disputed facts. If this objection is well founded, then every step in the official organization of the state, or in the perpetuation of its organization, might stand in need of the sanction of a jury, and is potentially subject to the delays and expense of a jury trial, except in the election of governor and members of the legislature, in relation to which the constitution makes special provision. Then all the laws providing for contested elections of councilmen in every city and borough of the state, are unconstitutional; then all the numerous laws regulating the manner of contesting election returns of judges, prothonotaries, registers, district-attorneys, justices of the peace, constables, military officers, and all state, county, town and township officers, except governor and members of the legislature, are unconstitutional and void; and contrary to the practice of the people and their officers in all departments, the state cannot organize itself without the aid of juries; then also the act of 1799, which made the governor the judge of contested elections of sheriffs and coroners, was unconstitutional. This objection, therefore, has a fearful sweep, if it has any force, and we should stand appalled before it, if we should feel its force to be equal to its pretensions. We do not feel it so. It is not in the act of organization of the state, nor in the perpetuation of its organic succession, but in the administration of rights under the organization, that the constitution secures the trial by jury. The jury is the popular element in the determination of rights which need enforcement by means of the state organization; but there is a much larger popular element in our elections, the votes of all the people; and all our political practice shows that we have not considered a jury an essential means of deciding contested elections of public officers. We see nothing but inexpediency, to prevent the legislature from declaring that the process of election should end with the general return, and that that should be conclusive evidence of title to office or commission; but they have wisely chosen not to do so, and have appointed the court to finish the process, if the general return be contested, by a proper review of the

(Issue and recounting of ballots.)

return of the election officers; and as they have not required that the court should have the aid of a jury for this part of the process, any more than for any previous part, no such aid can be demanded, of right, by either party, nor is it allowable." A jury trial was likewise refused in Thompson v. Ewing, 1 Brewst. 67, 96.

It has been determined, in Alabama, that the ballots themselves are higher evidence of the number of votes cast, than the certified lists of the election officers, and that the lists may be corrected by them. State v. The Judge, 13 Ala. 805. But the decision in Kneass's Case was adhered to, in Pennsylvania, in Thompson v. Ewing, 1 Brewst. 67, 97, where it was said, that in no case will the court order a recount of the ballot-boxes, except on a specific allegation of fraud. "The sworn return of the officers," said Judge Thompson, "should not be swept away in this manner.” Nor, it seems, will a recount be ordered merely on an allegation of fraud, until some evidence be adduced to sustain it. Ibid. 98; Kline v. Myers, 2 Cong. Elect. Cas. 574.

REED v. KNEASS.

In the Court of Quarter Sessions of Philadelphia.

DECEMBER SESSIONS 1850.

(REPORTED 2 PARSONS 584.)

[Competency of witnesses.]

An elector is not bound to disclose for whom he voted.

But this is the privilege of the voter, and one that he may waive; if he voluntarily testify for whom he voted, he is a competent witness to do so. The petitioners in a contested election case are competent to prove for whom they voted.

KING, P. J., delivered the opinion of the court. To prove the undueness and falsity of the returns in two of these districts, the election district of Penn, and the Second ward, Moyamensing, 230 witnesses have been examined, to show that they actually voted for W. B. Reed, for the office of district-attorney, whereas, according to the official returns, he received but 120 votes in both. Of these witnesses, ten were among the petitioners complaining against the return of Mr. Kneass as undue and fraudulent. In regard to this testimony, two questions have been raised: 1. It has been contended that, according to the constitution of Pennsylvania, the testimony of a citizen is not admissible, in any case, to show for whom he gave his ballot, at an election: 2. That a petitioner, contesting an election as undue and fraudulent, is not a competent witness, because of supposed interest, resulting from his liability under certain circumstances, to the payment of the costs of proceeding.

I. The first question arises under that clause of the constitution which declares that "all elections shall be by ballot, except those by persons in their representative capacity, who shall vote viva voce." The respondent con

(Competency of witnesses.)

tends, in order to exclude the testimony of these witnesses, that this provision was not simply intended as a security to the elector for the free and independent exercise of the right of suffrage, but, from considerations of public policy, it operates to prevent the voter, under any circumstances, from disclosing, before a judicial or other tribunal, how he voted.

If a voter be excluded from proving the contents of his ballot, from considerations of public policy, which require that such ballot should ever remain secret, the fact as to how he voted cannot be proved in any way; because the policy which excludes proof by himself, equally applies when it is proposed to be given by a third person. It, therefore, would follow, from the position assumed, that, under no circumstances and in no manner, can the contents of a ballot, given by an elector, be proved, in Pennsylvania, even though the elector himself be willing and anxious to make such proof, in order to show that his true ballot has been suppressed or changed by those whom the law authorizes to receive and requires faithfully to report it. This is a startling proposition; and it is not the less so, from being now, for the first time, asserted in this state; in which the vote by ballot, in forms variously modified, has prevailed from the earliest periods of our political history. No statesman, no legislator, no judge has ever suggested it; and the universally received public opinion. always has been, that the vote by secret ballot was a means devised to secure to all citizens, poor or rich, humble or lofty, the free and independent exercise of their own judgment, in the choice of public agents, and in the expression of their opinion of public men and public measures. So understood, the vote by secret ballot is an efficient means of maintaining the great republican principle, that all governments derive their legitimate authority from the consent of the governed; expressed without restraint, coercion or intimidation. But like all other personal privileges, the seal of secrecy may be taken

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