(Failure to elect.)

should receive a liberal construction; and if there is a failure to elect, for any cause whatever, the power to appoint (for without it the public would be deprived of these important officers) devolves upon the commissioners. On the ground that there had been no election, the commissioners appointed the respondents assessors of the ward, and in this we conceive they exercised a duty imposed upon them by the act.

3. But the counsel for the relators contend, that the commissioners were bound to receive and file the constable's return, and that it was their duty to issue their precept to the persons returned by him as duly elected. Without adverting particularly to the form of the return, it must be observed, that two returns were made, and it was for them to decide which return was correct, or whether either of them should be received; as it is made the duty of the commissioners, in a certain event, to appoint, that seems necessarily to imply the power to inquire whether the event had taken place, on the happening of which, it became their duty to act. It is a startling doctrine that in case of a notorious fraud or a palpable violation of the law, a constable can palm an officer on the public by the force of his return; that by merely omitting to state the place where the election was held, he can control the election, when it is admitted that it was not, in fact, held at the place appointed by the act. If this be the law, it is useless to go through the mockery of an election; the constable may return whom he pleases, always taking care that his return be correct upon its face; it would be better to give the appointment to the constable, at once, without the useless ceremony of an election. The act admits of the construction which we have given to it; nor do we perceive any danger in committing to the commissioners the power to examine into the illegality of elections conducted as this has been. The election is local, but the commissioners represent the whole county; they may be fairly supposed as, in some measure, exempt

(Failure to elect.)

from the feelings which act on the electors of the ward or township, and therefore, a reasonable hope may be entertained of something like impartiality. If, however, this hope should fail, the aggrieved party may resort to an information, when the whole case will be examined, and right and justice done.

In the course of the argument, reference was made to the act of the 19th March 1824 (P. L. 53), but that act only gives jurisdiction to the quarter sessions, in the case of a contest with respect to the election of county commissioners, auditors and other county officers. An assessor is not a county, but a township officer, a distinction plainly marked in the various acts of assembly, and particularly in the act of the 15th April 1834, entitled "an act relating to counties and townships, and county and township officers."

Rule discharged.

In Alabama, it was decided in the case of State v. Adams, that a failure to elect by the people, by reason of the opposing candidates having an equal number of votes, created a vacancy in the office, which it was competent for the executive to fill by appointment. 2 Stew. 231 (ante 286).

SALTER V. COUNTY OF PHILADELPHIA.

In the Court of Common Pleas of Philadelphia.

SEPTEMBER TERM 1851.

(REPORTED 1 PHILADELPHIA 255.)

[Compensation of election officers.]

The courts have no power to allow compensation to election officers, for extra services, beyond the amount prescribed by statute.

Case Stated. The plaintiff was a clerk of the election held in the second precinct of the 5th ward, Kensington, on the second Tuesday of October 1851, and as such attended the polls and discharged the duties of his office, on the day of election, and in preparing the necessary papers and returns; he was afterwards employed for two days in perfecting such papers. The defendants paid the plaintiff the sum of $2, for his services as clerk, for the day on which the election was held, and contended that he was not entitled to any other or greater sum for his services under the act of 28th April 1851. The plaintiff, however, contended that he was entitled to extra pay, for services rendered after the closing of the polls; and that the county-board having made an appropriation for the payment of such services, the county commissioners were bound to disburse the money. It was agreed that, if the court should be of opinion that the plaintiff was entitled to recover for such extra services, judgment should be entered in his favor for $4; otherwise, judgment to be entered for the defendant.

That

KING, P. J., delivered the opinion of the court. the compensation allowed to the officers of the general election, under the act of the 28th of April 1851, is inadequate to the labors required to be performed by them, I am prepared to admit; but that, certainly, affords no suf

(Compensation of election officers.)

ficient reason for allowing them a greater compensation for their services than is expressly ascertained by law.

When the city and county of Philadelphia was divided into small election precincts, for the purpose of facilitating the reception of votes, it was seen, that the expenses of such multiplied polls would heavily increase the public expenditures, if that contingency was not carefully guarded against. It was to meet this manifest result, that a precise sum was designated by law as a full compensation for the services of the officers, in conducting such elections. To conduct an election, means to execute all the duties connected with it, required by law; these duties form a whole; and when a precise sum is allowed for an entire public service, such public service cannot be subdivided into parts, and separate compensations allowed for each. It is for the service that the compensation is allowed, not for the quantity of time employed in its execution. The law is express, its intention is clear, and this intention is best consummated by permitting it to speak for itself; if there were room for allowing a construction sufficiently liberal to embrace the plaintiff's claim, I should feel disposed to adopt it; but this I cannot find either in the terms, the spirit or the policy of the act.

The appropriation made by the county-board cannot change the question, which is one of the legality of the plaintiff's demand, not of its abstract merits. The appropriation I consider as the expression of the favorable opinion of that respectable body in reference to the claim, and as such, it is entitled to, and must be received with, every consideration; but before this court, the claim of the plaintiff must be regarded and determined as a question of positive law. Although I agree with the countyboard, that the plaintiff's claim is a reasonable one, yet, finding no warrant for its allowance, in the law, but the contrary, I cannot pronounce a judgment directing its payment out of the public treasury. The result is, that there must be judgment for the county on the case stated. Judgment for defendant.

UNITED STATES v. QUINN.

In the Circuit Court of the United States for the Southern District of New York.

NOVEMBER 1870.

(REPORTED 3 AMERICAN LAW TIMES REPORTS 180.)

[Congressional legislation.]

The 20th section of the act of congress of the 31st May 1870 (16 Stat. 140), punishing a fraudulent registration, for the purpose of voting for a member of congress, is a constitutional enactment.

WOODRUFF, J. (BLATCHFORD, J., concurring), delivered the opinion of the court. The demurrer to the indietment now before the court, which was the subject of discussion at our yesterday's session, presents two questions. The first is, whether the law of the United States under which the indictment is found, is constitutional, or, in a more general form, whether it is a valid enactment; it is assailed, however, only upon the ground that it is an infraction of the constitution of the United States: secondly, whether the indictment sufficiently charges an offence under the law. The court will not endeavor to discuss, with great minuteness or particularity, these two questions; the shortness of the interval which has elapsed since the argument closed, has precluded the elaboration of an opinion upon the points which are raised. Had the court entertained serious doubt of the correctness of the conclusions which they have reached, they would have taken time for greater deliberation, and if it seemed to them fit, have endeavored to throw light upon the subject by an extended discussion. But entertaining no doubt, and deeming it unnecessary and unprofitable that the progress of the public business should be delayed for the purpose of indulging in an elaborate exposition of constitutional