(Right of interested parties to vote.)

Thus, in Dechert's case, in the Pennsylvania senate, a special committee having reported that the petition contesting the election of the sitting member was insufficient to put the case upon a trial, he was allowed to vote upon the adoption of the report. January 1871. But this case went to the very verge of the law, if, indeed, it did not overstep the line. Political precedents, in modern times, are of but little authority; the decision of a contested election, in our legislative bodies, has become simply a question of power, not of right.

The only opposing authorities to this well-considered principle of natural equity are to be found in the case of Commonwealth v. Woelper, 3 S. & R. 29, where the supreme court of Pennsylvania (Gibson, J., dissenting) decided, that an inspector of elections might be voted for as a candidate; but this was so abhorrent to every feeling of natural justice, that the legislature rendered election officers incompetent by the act of 2d July 1839, § 13. The other is the case of the impeachment of the President, in which senator Wade, the president pro tempore of the senate, who would, under the provisions of the constitution, have succeeded to the presidency, in the event of the conviction and removal of the incumbent, was not only allowed to be sworn in as a member of the court, but actually voted for the conviction of the accused, in which he had so deep a personal interest. 2 Johnson's Trial 486-7, 496; 3 Ibid. 360.

CHASE V. MILLER.

In the Supreme Court of Pennsylvania.

JANUARY TERM 1862.

(REPORTED 41 PENNSYLVANIA STATE REPORTS 403.)

[Place of voting.]

The legislature have no power, under the constitution, to authorize electors in the military service, to cast their votes at any place outside the district in which they have a legal residence.

An act of assembly professing to confer such authority, is unconstitutional and void.

Certiorari to the Quarter Sessions of Luzerne county. This was a case of contested election, founded on the complaint of the requisite number of qualified electors, alleging an undue election and false return of Ezra B. Chase to the office of district attorney. Chase received a majority of the votes polled within the county; but Jerome G. Miller received a sufficient number of votes from volunteers in the military service of the United States, if legal, to give him a majority of all the votes polled. The legality of the army vote was the question before the court. The court below (Conyngham, J.) sustained the constitutionality of this vote, and decreed that Jerome G. Miller was duly elected; which was assigned for error.

L. Hakes and S. Woodward, for appellant.

S. P. Longstreet and G. M. Wharton, for appellee.

WOODWARD, J., delivered the opinion of the court. This is a case of contested election; it comes up to us by certiorari; a motion was made and fully argued, to quash the

*The opinion of the court below will be found in 2 Luzerne Leg. Observer 74.

(Place of voting.)

writ, on the ground, that the decree of the court below is final and conclusive, and that we have no jurisdiction to review it. The first point to be considered, therefore, is our jurisdiction; for if there be any doubt on that head, we shall be more than willing to escape the constitutional question upon the record. (The learned judge here entered into an elaborate and exhaustive examination of the question of jurisdiction, which was fully sustained.)

Under the act of assembly above referred to (3d May 1850, Purd. Dig. 333) an election for district attorney was held in Luzerne county, last October, at which Ezra B. Chase and Jerome G. Miller were the candidates. After counting what the return judges considered legal votes, they gave their certificate of election to Chase; but twenty qualified electors filed their complaint in writing, setting forth an undue election and false return of Chase, and thus this contest was inaugurated. Besides complaining of a large number of fraudulent votes cast within the county, the petitioners set forth that "on the day of election, certain citizens of the commonwealth, being qualified electors of the county of Luzerne, and then in the actual military service, in certain detachments or companies of volunteers, under a requisition from the president of the United States, and by the authority of the governor of the commonwealth, did, agreeable to law, hold an election for the purpose of electing county officers of Luzerne;" and then followed a detailed statement of the votes cast by different companies for the office of district attorney, and a complaint that the return judges excluded the vote of the volunteers, and issued their certificate in disregard of it.

The petitioners did not give the names of the military voters, nor tell the court where they voted. Exceptions were filed to the complaint, one of which was, that the place of voting was not disclosed; but the court overruled the exceptions, and refused to quash the complaint, or compel it to be amended in this particular. Pending the

(Place of voting.)

proceedings upon this petition, the parties, on the 24th of December 1861, entered into, and with the leave of the court, filed of record, a written agreement, in these words:

"It is agreed, the following facts be submitted, as a case stated, for the court's decision. Admitted that of the votes polled within the county of Luzerne, Ezra B. Chase received 5811 votes, and that Jerome G. Miller received 5646; and that the said number of votes by each received, be counted by the court as legal votes. That of the votes polled by the volunteers in the army, Ezra B. Chase received 48 votes, Jerome G. Miller received 362 votes; but the legality of the votes polled by the volunteers in the army not being admitted, the question as to the legal effect thereof is submitted as a matter of law for the court. If the court should be of opinion, that the army vote is constitutional and legal, the same to be allowed by the court, and added to the vote cast in the county for the party or parties in whose favor they may be, and then the court to decree in favor of the party having the greatest number of votes. If no part of the army vote is received, the decree to be in favor of Mr. Chase; the army vote being taken as above stated, the objections to it being all waived, except as to its constitutionality."

On the 6th of January, the court made their decree "upon the written statement of facts agreed to by the parties, and filed upon the 24th December ultimo, no other evidence being offered," which was to the effect that the army vote was legal, that it should be counted, and that it gave a majority to Miller, to whom the office was awarded.

It has been seen already, that the inability of the court to review a decree of the court of quarter sessions on its merits, springs not from any organic defect of jurisdiction, but from the want of a bill of exceptions to certify us of the facts; but no bill of exceptions is needed when the parties agree upon the facts, and the court make their

(Place of voting.)

agreement a part of the record, and then "thereupon judging," base their decree exclusively on such agreement. A bill of exceptions compels the facts upon the record; neither the court nor the party can resist it; but the parties cannot be compelled to agree, nor the court to admit their agreement to record; still, both may be done, and thus the purpose of a bill of exceptions fully attained. The agreed facts become, in such case, as real a part of the record, as if a special verdict had been received and recorded. The court to whom the legislature committed this contested election, is provided with a jury which might be used to ascertain facts, and a special verdict is as much legal ground for judgment in the quarter sessions as in the common pleas. The parties have come to what is substantially a special verdict, by their agreement, and it is wholly immaterial, that they did not reserve to themselves a right of review, for not waiving it, the law gave them that. Had the court possessed itself of the facts per testes, whether in the form of oral evidence, or by depositions, we could not notice them, simply because there is no mode of certifying to us what the facts were; but, placing them upon the record by the concurrent consent of court, counsel and parties, and then basing their decree most distinctly and exclusively upon the facts so ascertained, it would be hypercriticism run mad so to construe the statutes under which we sit, as to deny a citizen the right of review.

If we should limit ourselves strictly to the agreement of 24th December, as the court below did, we should be obliged to say, it was wholly insufficient to support the decree that was built upon it, for it does not tell us that the volunteers, who cast, what it calls, the army vote, were qualified electors of Luzerne county; that they were serving in any detachment or company, in pursuance of public authority; who they were, nor where they voted, whether within ten miles of their usual place of voting, or in Virginia or Kentucky; on all these points the agree