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possible to ascertain the exact result. The other theory, that for gross disregard of the provision, of the election law on the part of the officers, a poll may be rejected, though legal votes may have been polled, which the parties are prepared to prove, is at variance with the principles on which our institutions are founded, and vests a most dangerous discretionary power in the hands of an elective judiciary, the last body upon which a lover of popular freedom would desire to see such a power conferred. If a partisan decision be made by a legislative body, bad though it be, the public sentiment is not so much shocked; the people look upon it as a question of power; but when the courts fall into the same error, it lessens that respect for their decisions, which is essential to a preservation, in its purity, of our republican form of government.
In the Common Pleas of Luzerne County, Pennsylvania.
DECEMBER TERM 1861.
(REPORTED 2 LUZERNE LEGAL OBSERVER 57.)
A petition to contest an election, which is not filed within the time prescribed by law, will be quashed, on motion.
In Pennsylvania, the time for contesting an election, runs from the day of election, not from that of the meeting of the return judges.
This was a petition contesting the election of E. B. Collings to the office of clerk of the courts of Luzerne county, to which he had been returned as duly elected at the general election held on the 8th October 1861. The petition was filed on the 16th November; and the respondent moved to quash, on the ground that the petition had not been filed within ten days after the election, as required by law.
CONYNGHAM, P. J., delivered the opinion of the court. A petition or complaint of thirty qualified electors, duly
attested by two of the petitioners, has been filed, contesting the election of E. B. Collings, who has the certificate of the return judges, showing his election to the office of clerk of the courts of Luzerne county. A motion has been made, on the part of Mr. Collings, to quash this complaint, on the ground that it was not filed in the prothonotary's office in due time, that is, within ten days after the election. The question now before us is upon this motion.
The 5th section of the act of 2d July 1839 (Purd. Dig. 817), regulates our action in such a case; it is therein directed how the petition shall be filed, containing, among other provisions, this clause: "and such complaint shall not be valid, or regarded by the court, unless the same shall have been filed in the prothonotary's office, within ten days after the election." The late election was held on the 8th of October, and this petition was filed on the 16th day of November of the same year. Was it filed too late to be considered by the court? It is not claimed that it was not filed more than ten days after the election, but it is contended, that it is still within time, because the return judges, to count what is called the soldiers' or army vote, did not meet until the first Tuesday of November (the 5th day of the month), and that, until that time, there was no decision or return of any particular candidate, whose election could be contested. From the examination of the complaint, and the other matters agreed upon here, in the argument, by the counsel, the army vote makes no difference in the case, Mr. Collings having received a majority of the votes of the people, at the county-polls, and the army vote not reducing his number to a minority.* The complaint, in its specifications, makes no objection to the army vote, or any proceedings under it, but it is founded on frauds and irregularities alleged to have been com
* But suppose, the county-poll had shown a majority of 1000 for the incumbent, and the army vote had reduced that majority to one, where would have been the equity or justice of this decision?
mitted at several district polls within the county, and not at all in the manner of conducting the election of the volunteers. The validity or invalidity of the election, and all questions in relation to it, raised by the complaint, are exclusive entirely of the soldiers' vote, except in the circumstances connected with the time of the final count by the judges, and their giving a certificate.
There appears to be, under the words of the act we have quoted, a limit fixed by the statute to the time of filing a petition "within ten days after the election;" here a question arises in the outset, what is meant by the words, "the election." It is argued, that these words are intended to comprise the whole machinery connected with the day of election, the meeting of the judges, and their final count and certificate, and that, if filed within ten days after the completion of all these duties, the petition is still within the statutory time and limit.
In order to ascertain the true meaning of these words, it is our duty, in the first place, to refer to the statute itself and to kindred acts, and endeavor to discover the sense in which the same expression is used in other places. These words are repeated several times in the act, and under such circumstances that the context can leave no doubt of their true meaning; we refer to a number of instances, taken from the act of July 1839, regulating elections generally. Purd. Dig. 372, et infra. The sheriff is to give notice of the general election, twenty days before the election (pl. 19); inspectors and judges are to meet at the place of holding the election (pl. 22); at elections as aforesaid, tickets are to be delivered, &c. (pl. 32); the judges are termed, judges of the election (pl. 34 and 38); time of opening the election (pl. 35); persons offering to vote at any election (pl. 37); and so, qualifications of persons to vote at an election (pl. 43); duty of the judges when the poll is closed (pl. 53); and when this is done, the election is said to be finished (pl. 55); the return judges are to meet the third day after the day of election. These are some
of the many instances in which the word "election" is used in the acts regulating the election of officers, including the clerks of the courts, and in them there is no room left for doubt, but that all the cases refer to that which is to be done, and is then final and complete, on the regular election day; that is to say, the doings on the election day, without reference to what is to be performed afterwards, are regarded as the election. There are other matters to be carried out, such as the meeting of the judges, the execution of returns, and the proper delivery and filing of certificates, which are all proper, in order to ascertain and legally make known the results of the election, but which, in fact, form no part of the election itself or election proper. The election in each district, the effect of which is to be ascertained by a subsequent gathering together of all the districts, is said to be finished, in the words of the 74th section, when the count of each district, after the closing of the polls, is completed.
We find also the same evident meaning, belonging to the expression "the election," in the third article of our state. constitution. In speaking of the qualification of voters, residence and assessment, ten days "before the election," that is, the day of voting, are prerequisites of the right to vote. It would be a novel reading of the constitution, to hold that, because the return judges do not meet until the third day after the day of voting, the time of their meeting and count or certificate of votes, is the period to which the residence and assessment refer, and that one becoming a resident, and being assessed, seven days before the election day, would be authorized to vote. Now, if the term "election" be held, in reference to matters preceding the day, to apply to election day, why shall we, under the constitution and statutes referring to the same general subject, give a different meaning to the same words, when applicable to subsequent matters? In examining the acts of assembly relating to elections, and the constitution also, we find that the words "the election," invariably bear
but one meaning; in no place are they used in a more enlarged sense, than if taken in their common and popular meaning; in so judging, we but follow the rule laid down. in Dwarris on Statutes 702, that "the words of a statute are to be taken in their ordinary signification and import, and regard is to be had to their general and popular use; and the meaning of words, spoken or written, ought to be allowed to be, as it has constantly been taken to be." If then, as we think, the term "election" refers to the requirements and duties of the election day, the complaint in this case, according to the words of the statute, was not filed within ten days thereafter.
It is contended, however, that the words in the act are merely directory, and that, therefore, in order to carry out the spirit of the act, and permit an examination of the alleged frauds, we can comprehend all the subsequent proceedings, including the last meeting of the return judges, under the general term "election," and consider the complaint, because filed within ten days after that period. Under the rules for construing statutes, we do not see how we can hold the words of the act directory merely, because, as used, they are imperative and peremptory in their requirements. The act provides, as we have seen, that the complaint shall not be valid or regarded by the court, unless filed within a required period, readily, from the words, to be ascertained; there seems no latitude for discretion; the order is positive, that it shall not be considered by the courts or regarded as valid; the delay has closed the whole matter, and the courts are forbidden judicially to look at it, for the purpose of investigating the charges. In no reported case that we have seen, has such language been held directory; there are decisions in the books, in which affirmative words, such as shall or may, according to the intent of a statute, and to carry out its evident purport, have, in the discretion of a court, been regarded as directory and not absolutely imperative; but when there are negative words declaring that, unless such