(Limitation.)

irrespective of the question of who might be the successful candidate. It is true, the court could not issue process to inquire into the matter, until it was legally ascertained that establishing the truth of the complaint would vary the result, nor until a successful candidate was returned upon whom the process could be served; yet this would not prevent the commencement of the proceeding, by the filing of the complaint, which is not required to be done in court, but only in the prothonotary's office.

We repeat, that in no part of the act, relating to an office such as the present, is the defeated candidate looked upon as a party, or as liable, in any event, to costs, unless voluntarily assumed; the petitioners or complaining voters, acting in the pursuit of their own rights, for the honest purpose of purifying the ballot-box from fraud, are alone looked to as contestants, and in one event alone liable to costs. It is not regarded as the complaint of the candidate; he cannot be permitted to withdraw or in any way control it. If the alleged fraud, upon being proved, would apparently change the result of the election, unless the people represented by the petitioners agree to it, an arrangement made between the different candidates, could not be used to defeat the contest; it may be abandoned and withdrawn, if no one will come forward to prosecute it, but the candidate cannot so control it. It is not the right of the individual alone who may be interested in the office, to defeat or set aside a fraudulent election; in him there may be a personal or pecuniary interest, but with the people there remains a public or moral right to

act.

To sustain the present proceedings, we must say, in effect, that in all cases of contest under the act of 2d July 1839, the words "within ten days after the election," are to be construed "within thirteen days after the election," or, within ten days after the judges shall have made their final and united count. This, it seems to us, where there is no positive necessity for such a construction, in order

(Limitation.)

to protect the rights either of the public or of an individual. would be an alteration or evasion of the statute, which courts ought not to countenance. We have, in this case, sought to take cognisance of the complaint, if, in our opinion, the law would permit it. The allegations of irregularity and fraud are of such a character, that they deserve investigation, if, under the statute, it can be given; but if the court has not jurisdiction, we cannot assume it, even to attempt to redress an alleged wrong. If, as we think, the legislature has not given us the power to act upon a complaint made and filed five weeks after the election, we cannot exercise it. In the words of Mr. Justice King, in Clark's Case, 2 Pars. 524, "we have no authority as a court over the subject, except what is derived from statute; if the question is not presented to us in the form prescribed, we are without jurisdiction."

We have thus endeavored to give our own views, with the reasons upon which they rest; we may be wrong, and other judges may arrive at a different conclusion, and therefore, we hope that, in this matter of form, the supreme court, if desired, may be induced to review our action. We are aware of the decision in Carpenter's Case, 14 Penn. St. R. 486, but the point there was different from the one presented now. Though the judgment of the common pleas, upon a contested election, may be final, when made upon the merits, or even the mode of setting forth the complaint, yet, a refusal to receive a complaint against an election, is different, and we believe, can be reached by the supervisory process of the supreme court; we refer to Scheetz's Case, mentioned in the note to Purd. Dig. 818; and the expression of Mr. Justice Lewis, in Commonwealth v. Garrigues, 28 Penn. St. R. 11, "that the regularity of such proceedings may be called in question on a certiorari.”

We refuse, then, to receive this complaint, because not filed in time to give the court jurisdiction; and direct, therefore, that it be quashed or dismissed, simply for the

(Limitation.)

reason that the petition was filed out of time. Holding this opinion, we prefer to put it in this shape, as most likely to be reviewed; if we should take cognisance of the case, and then dispose of it, even on the present ground, our judgment would clearly be final, and could not be re-examined; if, however, we refuse to hear the case, as we do, the supreme court may examine it on a certiorari, or may, by a mandamus, order us to proceed and give the party contesting, a hearing.

Complaint dismissed.

A more equitable and just conclusion was reached by the court of quarter sessions of Philadelphia, in the case of Thompson ♥. Ewing, where it was ruled by Thompson, P. J., that the ten days within which a petition contesting an election, must be filed, count from the day the return judges make out their certificate, and not from the day on which the polls close. 1 Brewst. 67. The same point was decided, in Stevenson v. Lawrence, 1 Brewst. 126, when Judge Thompson said: "It is to be observed, that the present question has no relation to a case in which the votes given within the county and a return of the same, made within ten days from the day of election, are the subject of complaint set out in the petition filed, in which case, the restriction to the time mentioned may well have a practicable and sensible application, but that this complaint is made against an undue election and return of votes cast by persons not within the limits of this county, who were in the military service, and authorized to vote under the provisions of the election law, the returns of whose votes could not be legally enumerated until the second Tuesday of November next after the election. It is admitted that the vote cast within this county gave a majority to the contestant, W. C. Stevenson; that no return of any vote was made by the return judges, until after the second Tuesday in November 1861, more than a month after the day of the election; that the returns of the military vote were not open to inspection, until more than ten days after the day of the election. It thus appears, that at the expiration of ten days after the day of the election, the only votes of which actual knowledge could be had, viz: the county votes, showed that the contestant had then no cause to make any complaint, no petitioners could

(Limitation.)

then take the oath required to give validity to a petition contesting the returns. If the right of a party to complain of an undue election or return, be absolutely fixed, on the tenth day after the election, so as to require him then to contest the return, and not afterwards, the entire proceeding as to him must be considered as terminated, and no other return of votes can be received to affect his rights. It would be absurd to suppose, that the legislature intentionally passed, on the same day, two laws, one of which allowed votes to be taken, but not enumerated by the return judges until November, and which votes are to affect the candidates voted for, while the other law obliges the parties complaining of the undue election or return of any officer, to file their objections to the entire returns of such election, within ten days from the election day." It will be seen, that these cases are not absolutely at variance with the decision of Judge Conyngham in Collings's Case, but the reasoning of Judge Thompson must satisfy any one that if the exact case had come before him he would not have followed that decision. See 1 Pechwell xxvii. But, in Louisiana, the very point has been decided, that a notice of contest is in time, if given within ten days after proclamation of the result. Davis v. Maxwell, 22 La. An. 66. See

Bowen . Hixon, 45 Mo. 340.

517

PENN DISTRICT ELECTION CASE.

In the Court of Quarter Sessions of Philadelphia.

SEPTEMBER SESSIONS 1848.

(UNREPORTED.)

[Division of election district.]

Upon the division of an election district, the functions of the election officers are destroyed, and cannot be exercised in either of the new election districts into which the old one is divided; the official functions of local officers fall with the political annihilation of the locality for which they were chosen or appointed.

Where an act of assembly, dividing an election district, appointed election officers for the ensuing general state election, it was held, that they were invested with all the powers of officers chosen by the people, and consequently, were competent to conduct the presidential election in the same year.

The petition in this case set forth that at the preceding March election, there were two election polls opened in the district of Penn, and votes polled at each, of which regular returns were made; that by the aggregate vote of the two polls it appeared that John L. Kucher had the highest number of votes for judge of election, and Henry Walters and Conrad Carpenter for inspectors; that the said election had never been set aside; that on the 7th of April 1848, an act was passed empowering the court to appoint officers in certain events; and that on the 10th of April 1848, another act was passed appointing Thomas Davis, Conrad Carpenter and William Wentzell, officers for the October election, but no provision was made by said act for the presidential election; the petitioners, therefore, further setting forth that they were in great doubt as to who were the proper officers to conduct this election, prayed the direction of the court in the premises.

KING, P. J., delivered the opinion of the court. The prayer of the petition asks for no precise relief; it merely