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and landed from the ship Preble, in Boston, the latter part of August last; that he had been absent ten years and nine months, and had a wife and children residing in the Sixth ward of the Northern Liberties. He said, he had paid no tax but an hospital tax of twenty cents per month, retained out of his wages by the government; and on that evidence, he was permitted to vote; he said, that he voted five tickets, but whom he voted for, for assessor, he did not know, but that he voted the ticket headed by John Apple for alderman; that it was called the "Apple ticket."
It is conceded, that this was an illegal vote, and that the officers of the election had no right to receive it; and as an illegal vote was polled, we are asked to take it from the majority, according to a rule which, it is said, has been acted upon by committees of the legislature. I think it would be difficult to produce any case where a committee, in deciding upon a contested election, have taken the illegal votes from him who had the majority, if it would change the result of the election (unless those votes had been cast for him), and given the office to the minority candidate. Whatever may have been the practice of committees of that body, I will not pretend to say; but we are called upon to lay down a rule of law for ourselves, and this we think is a correct one; that if a man have given a vote who did not possess the legal qualifications of a voter, he is bound to disclose, on oath, for whom he voted, or that fact may be established by any other legal proof, and when it is ascertained for whom he voted, that vote must be taken from the candidate for whom it was given. I know it is said, you cannot compel an elector to disclose for whom he voted; but this does not apply to one who is not an elector. When once the fact is made clear, that an individual has been suffered to vote, who had no legal right to vote, the veil of secrecy does not protect him, because he is not an elector-he is a stranger, an intruder, and therefore, is entitled to none of the privileges which
appertain to legal voters; hence, he may be compelled to testify.
But if the individual do not know for whom he voted, and the fact cannot be established by other evidence, then the complaint must fail for want of proof, like any · other cause which is lost for want of sufficient evidence to sustain it; for, it is difficult to see, upon what principle of justice, we should take this vote from Jacobs, who has but one majority, thereby change the result, thwart the will of the people, and give the appointment of assessor to the county commissioners, when it is quite as probable the vote was given for McDaniels. Perhaps, committees of the legislature, in deciding upon contested elections, have taken illegal votes which had been polled, from the candidate who had the majority, even where it would change the result, when it was not disclosed for which candidate they were cast; but, I think, in every such case, it will be found, that a new election was ordered and the matter referred back to the people. But according to a late decision of the supreme court, the court of quarter sessions, in judging of the validity of a township election, have not the power to order another, and therefore, cannot exercise that discretion which is used by committees of the legislature; and a rule which influences a tribunal clothed with great discretionary powers, might be a very unsafe and unjust one to be adopted by those who must decide upon principles more confined and restricted, and who cannot give to the people the opportunity of correcting an error into which their officers may have fallen. Hence, we are led to believe, the rule above stated is better calculated to do justice to the candidates and electors, than any other we can take for our guide.
No election should be set aside on slight or trivial grounds, where the will of the people has been fairly and legitimately expressed, nor without clear and satisfactory proof of illegality or impropriety. When once it is
* See Commonwealth v. McCloskey, ante 211.
proved that any candidate has received the vote of one who had no right to give it, we will take it from him, no matter what may be the effect; but we think it unjust to deprive him of his election, when, in all human probability, the illegal vote was cast for his opponent, who is in the minority. It would be unjust to adopt a principle which, in its application, might produce such a result. McDonald testified that he did not know for whom he voted as assessor; but if we were to weigh the evidence and take circumstances for our guide, the inference might be fairly drawn, that he voted for McDaniels. It was admitted by counsel in the argument, that he ran on the "Apple ticket;" the witness said he voted five tickets, that they were given to him in a bundle, that he could not read or write, but that he asked for a ticket headed by John Apple for alderman, and they gave him one. From the zeal with which closely-contested elections are generally conducted in this state, and the nice manner in which entire tickets are arranged, it would not be a strained inference to presume that the witness voted for McDaniels. If so, then it should be taken from his votes, and that would increase the majority for the candidate who has the
We do not, however, place our decision upon that ground, but upon the rules of law which we have already laid down. We are of opinion, from the evidence before us, that the candidate who has the return was duly elected assessor of the Sixth ward, and therefore, order this complaint to be dismissed, and the election of Jacobs confirmed; we likewise order and direct that the county pay the costs of these proceedings.
McDaniels' case is a leading one upon the several points decided, all of which are fully sustained by subsequent decisions, and may be accepted as the undoubted law upon the questions involved. In Chase v. Miller, 41 Penn. St. R. 420, it was said by the supreme court, that "from 1799 down to the present hour, election districts, within the meaning of
(Place of holding elections.)
our statutes, have denoted subdivisions of Pennsylvania territory, marked out by known boundaries, pre-arranged and declared by public authority" (ante 223). On the 26th April 1844, the legislature attempted to overrule the decision in McDaniels' case, by providing that any qualified elector who might have removed from one election district to another, in the same county, within ten days preceding any general election, should be entitled to vote in the district from which he had so removed; but this was declared to be unconstitutional, in Thompson v. Ewing, 1 Brewst. 68, 103.
CHADWICK v. MELVIN.
In the Supreme Court of Pennsylvania.
MARCH TERM 1871.
[Place of holding elections.]
If an election be held, without necessity, at a different place from that designated by law, the entire poll must be rejected.
And so also, it seems, if the polls be opened at a much later hour than the time prescribed by law.
Certiorari to the court of Quarter Sessions of McKean county. This was a petition contesting the election of Charles C. Melvin to the office of treasurer of McKean county, at a general election held on the second Tuesday of October 1870. The court below, on motion of the respondent's counsel, for the reasons stated in the opinion of the court, quashed the petition, and dismissed the proceedings; whereupon the cause was removed to this court, and the quashing of the petition was here assigned for
THOMPSON, C. J., delivered the opinion of the court. We think the court below committed a clear error, in quashing the complaint of the requisite number of citizens
(Place of holding elections.)
of McKean county, complaining of an undue election of the respondent as county treasurer, at the general election of 1870. It sets forth what is claimed as material violations of the election laws, in three districts or townships, giving sufficient majorities to elect the respondent over the contestant by an aggregate of thirty-two votes in the county. The complaint is, in holding the elections in these three districts, at different places from those established by law, and designated in the sheriff's proclamation; to wit, in Wetmore township, the place of holding the annual elections, as fixed by law, is at the house of William Toby, in said township; whereas, it is alleged, it was held at the school-house, at Wetmore station, three miles distant, without authority of law, and at which were cast, returned and counted for Charles C. Melvin, the respondent, forty-seven votes, and for the contestant, John R. Chadwick, four votes: in Bradford township, the place fixed by law for holding the election, and designated by the sheriff's proclamation, was the school-house in the village of Littleville; whereas, the election was not held there, but at a school-house more than half a mile distant, across Tunungwant creek, at which place there were cast, returned and counted one hundred and eighty-three votes for the respondent, and one hundred and fourteen votes for the contestant: in Hamlin township, the election, it is alleged, was not held at the Aldrich school-house, the place fixed by law and the sheriff's proclamation, but at a vacant house, more than half a mile distant, at which were cast, returned and counted for the respondent twenty votes, and for the contestant four votes. The complainants allege that these township returns were illegal, and should not have been counted in the return of the election for treasurer, and which, if not counted, would leave the aggregate vote of the county (if not otherwise changed by uncounted votes, if any, in favor of the respondent, or by deductions from the contestant), to stand, 358 votes in favor of the former, and 575 for the contestant, giving the latter a majority of 271 in the county.