(Powers of the courts.)

inconsistent with it and changing it in such particulars; still, we believe it is partially in force, and that, in case of a vacancy in charter-offices named in the section, a new election should be held under and in conformity with it.

Our reasons for this conclusion are, briefly, that in case of any such vacancy, there is no other authority. given in the act of 1851 or elsewhere, to supply it; the court certainly cannot do it, and the people, without this authority or some other more specially provided in the charter, will be equally without power. We do not consider it the fair intent and legitimate meaning of the 19th section of the act of 1851 (Purd. Dig. 119), that "officers are to serve until others are duly elected and qualified," that, in case of difficulty or fatal irregularity in an election, it contemplates the necessary continuance of the old charter-officers, for one whole year, or until the next annual election; the true meaning would seem to be, that they should continue in office until an apparent vacancy be supplied; looking for a speedy filling of that vacancy, as in other elective offices generally. If this be not correct, then, if the officers of a charter-election, or the constable, whose duty it is to give notice of an election according to law, choose to misconduct themselves for the very purpose of keeping an existing council in office, there would be no way of preventing this result, for one year at any rate, and perhaps longer. It is contrary to the spirit of our institutions, that officers, elected for a limited time, should be enabled, by the misconduct, perhaps, of some of their own friends, to retain office for a double period, contrary to the clear and manifest will of the people; yet such may be the result, if there be no mode of filling a vacancy, either by appointment or new election. Other cases of difficulty may arise, where there is misconduct in no one, and yet a vacancy. Suppose the full number of councilmen are not elected, or, if elected, that one or more of them die, after the election and return, but before being qualified, there will then be

(Powers of the courts.)

a vacancy; what particular members of the old council will continue in office to supply the want? all have an equal right to claim it, and who will decide between them? The absolute necessity of providing for such cases, would induce us to hesitate in pronouncing this section of the act of 1834 entirely repealed, even if the alleged repealing clause of the late act were more broad in its terms than it is shown to be; on the other hand, when, as this repealing clause is really worded, we find nothing relating to this point in the new act, inconsistent with the provisions of the older one, but in entire harmony with it, from the fact that the new act provides for no such cases, why should we consider it repealed? The argument of the court, in their opinion in Street v. Commonwealth, 6 W. & S. 212, is referred to, though not analogous strictly in everything, except its general spirit.

We should not have deemed it necessary to give this opinion, in reference to vacancies in charter-offices, though we were earnestly asked by one of the counsel, in his argument of this case, to do so, were it not that, so far as this same section applies to constables and overseers, we do think it is changed by the act of 1851; it became necessary, therefore, so far to qualify our opinion, as to show how far alone, we think it is repealed. The section of the act, heretofore cited, placing the election of the constables and overseers under the same rules as similar township officers, is inconsistent with the provision of the earlier borough act of 1834, if they refer to the same kind of constable. It may also be observed, that when this act of 1st April 1834, was passed, the bill, which subsequently, on the 15th April of the same year, became a law, abolishing the office of overseer in the townships, had been reported by the commissioners, printed, and its passage fully anticipated. It being thereby intended, afterwards, to dispense with the township office of overseer, it may have induced the legislature, as there were no supervisors in boroughs to take upon them their duties and the charge of the poor,

(Powers of the courts.)

to name overseers as borough officers, special in their character, and their vacancy to be supplied in the manner then provided. When, however, the office was renewed in the townships, and the old general system of the control of the poor and the pauper districts resumed, before the act of 1851, it seemed but reasonable to put similar officers upon the same footing, both in boroughs and townships, giving to the courts, in case of a vacancy, the incidental right, in both cases, of appointment.

The constable named in the act of 1834, called in the 5th section "town constable," and in the 6th section, "high constable," seems to be a different officer from the one mentioned in the act of 1851, by name; the appointment of high constable depends upon the provisions in the charter.

The testimony of those who are not petitioners, is sufficient to establish the facts upon which this opinion is founded; still, I am inclined to think, for the reasons given in Kneass's Case, 2 Pars. 590 (ante 373), and 1 Phila. 159, that their interest, if any, was so indirect, remote and uncertain, that it should go to credit rather than competency.

The judgment of the court is, as follows: The evidence having established an undue election for the following named officers of the borough of Scranton, the election for assessor and assistant-assessor is set aside, and the county commissioners will fill the vacancies; the election of auditors and overseers of the poor is set aside, and the court will make appointments to fill the vacancies; the election for school directors is set aside, and a new election ordered under the provisions of the sixth section of the act of 1834, of which the proper officer will give two weeks' notice, according to law; the complaint against the returned election of burgess, five councilmen, one judge and two inspectors of election, and three Trustees of Proprietors' School Fund, is dismissed, this court having no jurisdiction in the premises; costs to be paid out of the borough treasury.

(Powers of the courts.)

The courts, in deciding cases of contested elections, act in a judicial capacity; they are not like a board of canvassers, but their duties are to examine into the existence of such specified frauds and irregularities as would nullify the result arrived at by the return judges. Kneass's Case, 2 Pars. 553. In Mann v. Cassidy, 1 Brewst. 25, Thompson, P. J., said, "the act of assembly which devolves on the court this most unpleasant jurisdiction, in addition to the authority vested in it as a judicial tribunal, clothes it with powers which, by the same act, are conferred on committees of the legislature. These include the power 'to decide not only on the validity of the contested election,' but also 'which of the candidates had the greatest number of legal votes.' This grant of power was necessary, to enable the court to act in the premises, as, without it, it would be difficult, in a proceeding where the investigation is to be made upon the representation merely of twenty citizens, with a simple notice of the time of hearing to the persons returned (which notice may be entirely disregarded), to proceed, by the exercise of any of the well-defined powers of a court of law, to decide upon the rights of the several parties interested as candidates. In this proceeding, there is no provision for bringing any opposite party into court; or, in case of neglect or refusal to appear, for taking a decree by default or confession. There is no answer required from any one to the petition presented; nor any rule or regulation to produce an issue. The simple process is, the presentation of the petition, on which the court is required to fix a time of hearing, with ten days' notice thereof to the 'person returned.' As it would be inconsistent with the other duties of the court, to inquire into every vague allegation which might be made as to the fairness of an election, it was early seen, that the court must, of necessity, adopt some rules to regulate election cases, as they do other cases, and that to bring such cases, as far as possible, within the ordinary rules of practice, would be most consistent with the duties required by law. Under these rules, the appearance of a party to oppose, constitutes him a litigant party; he is entitled to take every objection to the proceedings of the contestants, both as to matters of form and of substance, which may secure to him a fair and legal hearing; he has the right to require the court to decide, as a preliminary question, whether the petition filed presents such a case, as would, if established by evidence, affect his rights, and if it be found deficient in

(Powers of the courts.)

substance, to order it to be quashed; or, if defective in parts, to direct such parts to be stricken out.”

In the same case, the court ruled, that the powers conferred upon them, in contested elections, are to be exercised judicially; and in such cases, proceedings are to be regulated, as far as practicable, by the established rules of judicial procedure. That the petition must set forth, plainly and distinctly, facts which, if sustained by proof, would render it the duty of the court, to entirely vacate the election, or to declare that another person, and not the person returned, was duly elected to the office in question. That the court would strike from the petition all irrelevant or general allegations, which could not affect the merits of the case or the general result. And that a petition to set aside an election might be amended, and especially, where leave to amend was applied for, before any progress was made in the hearing of the cause.

An amendment to the petition must be verified in the same manner as the original petition; but it need not be sworn to by the same identical petitioners. Mann v. Cassidy, 1 Brewst. 11. It may be allowed to be filed nunc pro tunc. Gibbons v. Sheppard, 65 Penn. St. R. 35. But it must not introduce new matter. Thompson v. Ewing, 1 Brewst. 68, 97, 101. The court will not permit an amendment of the answer, during the progress of the hearing. Mann v. Cassidy (Report 386). Nor will they seal a bill of exceptions to a question of evidence. Ibid. 1 Brewst. 12; People v. Smith, 51 Ill. 177.

On a contested election, the court has no power to inquire into the legality of a previous election for election officers. Mann v. Cassidy, 1 Brewst. 11; Commonwealth v. Smith, 45 Penn. St. R. 59. And a court of quarter sessions, in judging of the validity of a township election, has no power to order another. McDaniels' Case, 3 Penn. L. J. 310.