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a thing be done or be done in a particular manner, a court shall not have jurisdiction, there is not a case to be found, in which the court has not considered such express prohibition as imperative and positive in requirement. We refer to Robins v. Bellas, 4 Watts 255; Woods v. Ingersoll, 1 Binn. 146; Gearhart v. Dixon, 1 Penn. St. R. 224; Steiner v. Coxe, 4 Ibid. 13; McElhiney v. Commonwealth, 22 Ibid. 365; Trustees of Erie v. Erie, 31 Ibid. 515; and the older case of Davison v. Gill, 1 East 64; these decisions show the distinction with regard to the discretionary construction of statutes; discretionary being merely another word for directory. In a compulsory or imperative statute, there is no room left for discretion, on a question whether a court is obliged to obey its requirements. The rule we have referred to, is thus laid down in Dwarris on Statutes 715: "negative words will make a statute imperative; and it is apprehended, affirmative may, if they are absolute, explicit and peremptory, and show that no discretion is intended to be given." Now, can negative words be used more emphatically and imperatively, than in the particular case before us? is there anything from which an intention to give a discretion can be gathered?
It is argued, however, that at an election like the present, where there may be a vote of soldiers at a distance, unless such a discretion be exercised, there may be a great failure of justice. This may be; but it does not follow, that the court can rightly assume a jurisdiction which is expressly denied them by statute. It does not come within the general jurisdiction of the court of common pleas, but by virtue of a special and limited authority to act in a certain case; if the case be not within the provision of the statute, the court cannot take the authority; that would be assuming legislation. "A casus omissus can, in no case, be supplied by a court of law, for that would be to make laws; judges are bound to take the act of parliament as the legislature has made it." Dwarris on Statutes 711. "A failure of justice will not be sufficient ground for constru
ing a statute against its clear meaning, so as to give a court jurisdiction." Pitman v. Flint, 10 Pick. 506. But even if there be plausibility in the argument with regard to the soldiers' vote, that question does not arise here; because there is no complaint as to anything arising out of this vote; the objections are all to the votes in the home districts, and under this complaint, if received, these are the only matters asked to be the subject of inquiry. The mere allusion to the army vote is not sufficient; any reference in the complaint, not the subject of inquiry by the court, would, on motion, be stricken out as irrelevant; see Carpenter's Case, 2 Pars. 537; Kneass's Case, Ibid. 553; it will hardly be contended, that subjects which do not affect the election, can be used merely to give the court jurisdiction.
It is also pressed upon the consideration of the court, that there can be no contest till after the return of the judges, showing that some one is elected. But this is a mistake; it is not required that a defeated candidate or his friends shall contest an election; in no part of the act, except that relating to a governor, or to a member of the senate or house of representatives, are the contesting or disputing candidates called parties; in these cases, it becomes necessary to name them as such, for they have a part to perform in organizing the tribunal to judge of their rights. But it is not so in the case of the clerk of the courts; it is the people who complain of an undue election or return of an officer, and where, as in the present case, objections are founded on alleged frauds in particular districts, all of them to be, by law, ascertained and known within ten days after the election proper, and not later, shall they not be held to complain within the statutory time? The people in each district know of the result there, as soon as the count is completed, and declaration made of the result by their judge, under the 75th section (Purd. Dig. 377, pl. 56); again, a list of the voters and one of the tally-papers are forwarded to the prothonotary's
office, within three days, to be open to the inspection of all; indeed, the prothonotary is bound, by the 85th section (pl. 68), to give copies of all such papers to any person applying for the same; so that there can be no difficulty in ascertaining all facts and charges of the character now advanced, within the required period.* Would it be in accordance with the purport of the statute to say, that objectors may postpone the inquiry, until they find whether they want to object or not; or, if they do ascertain frauds, keep them secret until after the judges make a return?
Whatever may be the fact, that ordinarily, only a defeated candidate or his friends do contest an election, and therefore, that until a return be made, they cannot know the necessity of so doing, such, as we have already said, is not the theory of the law; any qualified voters may initiate the complaint, and make known to the court, that in any particular district or districts, there has been fraudulent voting, specifying in what the fraud consists, and how it would vary the particular return of a district. When the result of the whole election becomes known, and the full return is made by the judges, the court can see if the alleged frauds in particular districts, will vary the several returns of the election, and if found to affect it, then "the returns of elections will be subject to their inquiry, determination and judgment." The law presumes that, at any rate, some of the people, without regard to
The fallacy of this reasoning will be seen at a glance, by putting a very supposable case; the incumbent might be returned by a considerable majority, say 500, there might be full proof that he received 50 illegal votes, but this would not change the result, and therefore, no petition could be filed, that the court would sustain; but if, on the counting of the soldiers' vote, the majority for the incumbent were reduced below 50, it is evident, that the position of affairs would be entirely changed, and that there would be now a good case, which could not have been presented before. This is no argument in favor of the position, that the limitation of ten days is directory merely, but to show that, on the equity of the statute, it should not be held to commence running until the final count of the soldiers' vote.
individual friendship, or party feelings, or the defeat of any candidate, will act without delay.*
There is an object, too, in requiring speedy action in such cases. On the one hand, the complainants have the declaration of the judge of the count at the poll of each district, the returned list of voters and tally-papers, and ten days after the election to inquire and ascertain facts; such is the time limited to the complainants, because the greater the delay, the more difficulty is there, not only in ferreting out a fraud, but also in looking up the evidence to answer the charges, when made, by those who desire to support the election. In the present case, too, where the claim for delay is made only in consequence of waiting for the count of the army vote (which does not affect the question), we may add, as a fact understood and informally made public through the papers, within the ten days, that the return judges did meet on the third day after the election, and add up the votes of the several county districts; the result, so far as at this time, under the present case, important, was as fully, though not as formally declared, as since the final meeting of the judges; it is to be presumed, that the complaining parties knew, or might have known, by early and due inquiry, the frauds which they now allege. Why, then, should the clear, plain and direct language of the act of assembly be violated, when it was entirely within their power to raise the question in due season? If the frauds alleged had been in the army vote, or the result were in any way affected by a refusal to count it, there would be, as we have said, plausibility in the argument, that the necessity would justify an extension of the time. Even then, however, it might be questionable, whether, rather than
* A more fallacious argument was never penned; it only shows how the judgment of an estimable, honest and learned judge can be warped by his party feelings, in a contested election case; and how unfit a depository of this delicate jurisdiction, is the judicial department, as organized in the United States.
directly disregard the words of the act, it should not be considered an oversight in the legislature, in not providing for a contest in such an election or return, in the manner provided with regard to other elections. Perhaps, if not reached by this statutory proceeding, there might be another remedy by proceeding in a quo warranto.
We do not now undertake to decide what our opinion would be, if the contest depended upon facts connected with the final return of the judges, or the count or rejection of the army vote, or any fraud or irregularity therein, as in the Philadelphia case to which our attention has been called through the papers; there would still be difficulty in reaching the case. Yet, so great would be the inconsistency of tendering to the people a remedy for fraud, which, by no zeal or promptness, they could be able to use, from inability to procure a return of the votes, or learn their character, within ten days after the election, that necessity, if this were the only resort, might induce the court to take cognisance of the proceeding. But the rule of action in such case, cannot apply to another wholly different, where the reason for such action entirely fails, and the foundation upon which the claim for the jurisdiction is erected, does not exist. In the one case, the people cannot act; in the other, they have had the opportunity, in due season, to initiate the remedy, but, through misapprehension or other reason, have neglected to avail themselves of it.
Here, the only question raised, which can affect the result, is, whether the election on the 8th day of October last, was conducted fairly and legally at certain election districts within the county of Luzerne; the mere fact, that there was a vote of soldiers, not varying the election as decided by the vote within the county, cannot be brought in to authorize a contest which should have been initiated at an earlier day. The complaining voters might have ascertained, and were bound to have ascertained, the matters alleged, within the allowed ten days after the election,