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(Irregularities will not vitiate the poll.)
parties so voting were actually duly qualified electors. And see Myers . Moffet, 1 Brewst. 230. But this appears to be an erroneous view of the law; if the election officers receive a vote without that preliminary proof which the law makes an essential prerequisite to its reception, such vote is as much an illegal one as if the voter had none of the qualifications required by law. The voter might not be able, on the election day, to produce the legal preliminary proof, and it would not appear to be just to the candidates to permit a vote to be made legal by evidence subsequently procured, which was absolutely illegal when received by the officers. It has been held in Wisconsin, that where there was no registry of the voters of a town, and none of the persons who voted therein, at the election, furnished the affidavit required by law to entitle the vote of an unregistered elector to be received, the whole vote of the town must be rejected. State v. Hilmantel, 21 Wis.· 566; State v. Stumpf, 23 Wis. 630. This we deem the only just view to be taken of the election law, and the only one which will remedy the evil of constantly recurring contested elections. (See People v. Kopplekom, 16 Mich. 342.) The rule here indicated was enforced in Gibbons v. Sheppard, 2 Brewst. 129, where the court refused credit for every vote primâ facie illegal, in which the testimony did not show that, at the time of voting, the offer was supported by the proof which the law demands.
But the duties imposed on the election officers, on the receipt of a vote, whether from a registered or unregistered elector, are plainly directory, and the omission of them cannot, and ought not, to affect the validity of a vote which was legally given and received; thus, the omission of the inspectors, as required by law, to call aloud the respective names of all the electors upon receiving their tickets; the omission of the clerks to report the names of such electors, and to inscribe the letter V on the margin of the lists opposite the names of such electors; and the omission of the inspectors, to note the fact of the production of certificates of naturalization, are clearly mere irregularities which do not vitiate; Skerrett's Case, 2 Pars. 515-16 (ante 320); Kneass's Case, Ibid. 583; Thompson v. Ewing, 1 Brewst. 109. So is the omission of the inspectors, in counting the votes, to take out the ballots deliberately from the boxes, and read aloud the name or names printed thereon; Skerrett's Case, 2 Pars. 515 (ante 320); the omission to deposit the ballot-boxes with the nearest magistrate, within one day after the election; Kneass's Case, 2 Pars. 559 (and see People v. Cicott, 16 Mich. 284); and the omis
(Irregularities will not vitiate the poll.)
sion to file the tally-papers within the time required by law; Mann ʊ. Cassidy, 1 Brewst. 31; Ewing v. Filley, 43 Penn. St. R. 388; Howard v. Shields, 16 Ohio St. R. 191 (ante 378). It is not ground for setting aside an election, that some of the return judges refused to meet on the day prescribed by law, nor that those who did meet, met at an unusual place, where it was shown that their duties were so interfered with by a disorderly crowd, that they could not be performed at the usual place. Hulseman v. Rems, 41 Penn. St. R. 396. And see Ex parte Heath, 3 Hill 42; McCraw v. Harralson, 4 Cold. 34.
It is, of course, no valid objection to an election, that illegal votes were received, or legal votes rejected, if they did not change the majority. Sudbury v. Strauss, 21 Pick. 148; Blandford v. Gibbs, 2 Cush. 39; Christ Church v. Pope, 8 Gray 140; Ex parte Murphy, 7 Cow. 153; State v. Lehre, 7 Rich. 234; McNeely v. Woodruff, 1 Green 352; People v. Cicott, 16 Mich. 295; People v. Tuthill, 31 N. Y. 550; Matter of Chenango Mutual Insurance Co., 19 Wend. 635.
SCRANTON BOROUGH ELECTION.
In the Quarter Sessions of Luzerne County, Pennsylvania.
NOVEMBER SESSIONS 1860.
(REPORTED 1 LUZERNE LEGAL OBSERVER 12.)
[Powers of the courts.]
The court has power to set aside an election, as undue, if the election officers adopted an erroneous rule as to the qualifications of voters, which prevented certain legal voters from giving their votes, and being made known as their decision, prevented other legal voters, similarly situated, from offering their votes ; especially, if it appear, that such votes, if offered and received, would have changed the result or have left it in doubt.
The provisions of a borough charter requiring six months' residence and payment of a borough tax, as a qualification for a voter at an election for borough officers, do not apply to electors of township officers and officers of a similar character within the borough; the qualifications of such electors are governed by the constitution and general laws.
If the election officers applied such special provisions to voters for township officers, &c., it is sufficient ground for setting aside the election.
The courts have no jurisdiction to try a contested election of officers to conduct an election.
The right to a strictly charter-office can only be determined in a quo warranto.
In case of a vacancy in a charter-office, it is to be filled by a new election, held under the act of 1834; otherwise, as to overseers and constables.
CONYNGHAM, P. J., delivered the opinion of the court. The evidence shows great irregularities in conducting the election in contest, the effect of which it is not necessary for us, in our view of the case, to consider; so far as the court, under the present complaint, can investigate the matter, it seems to be our duty, for other reasons, to set aside the election. In so doing, however, we are not called upon to attribute any fraud or intentional wrong to the officers forming the election board, but simply an error of judgment; this, indeed, was the only course of argument adopted by the counsel for the contestants. If
(Powers of the courts.)
they were mistaken, though honest in their own opinions, in establishing a rule which prevented legal voters from voting, and which might, if the votes had been received, have varied the returns, the court must now interfere. The acts of assembly give to this court a direct supervision over the conduct of the officers who conducted the election, as it operated upon voters, by giving jurisdiction over cases "of undue elections and false returns," when, in legal and statutory form, brought under our cognisance. Act 2d July 1839, § 151, Purd. Dig. 300. If it appear that an erroneous rule was adopted, which did improperly keep otherwise legal voters, tendering their votes, from voting, or which, when made known as the decision of the board, prevented other voters, similarly situated, from offering their votes, it would be an undue election; more clearly, however, to be set aside by the court, if, under the evidence, it be rendered reasonably probable, that if such votes had been offered and received, the result of the election would have been different, or have been left in doubt.
We now find, upon considering the evidence, that such an erroneous rule was adopted and promulgated, and that the reverse of the rule, or rather the true rule, if allowed, might have produced a different state of the polls. In this respect, then, the election was undue, and the returns false, as an election of the citizens, though not intentionally so upon the part of the officers. The rule thus wrongfully adopted, was upon an alleged principle operating upon a large number of voters; in such a case, it cannot be considered necessary to prove that each individual so affected tendered his vote to the board and was refused, or how they would have voted, if admitted. If they were legal voters, they had the right, without the supervision of this court, or any other persons, to vote by ballot, and not to make their votes known to any one, unless they chose so to do. As a general rule, it affected a class, and it was not required that each one of that class should have his
(Powers of the courts.)
vote formally rejected; virtually, it was so, in all cases of the same kind, by the special decisions made.*
A borough election is of a double character; at such an election the proper charter-officers are elected, and other officers of a more general nature, similar to the township officers found in other municipal divisions. This double election is sometimes held at two different times, when so required by the charter; but more generally, it is believed, as in the present one at Scranton, at the same time, and under the controlling direction of the same persons. Both these elections, or the double election, are public, and voted at by residents of the borough; but the charter-officers (otherwise the corporation officers) are to be elected by residents or corporators, who are qualified voters under the limitations of the charter; while the other more public officers, similar to township officers, are to be voted for by residents and voters qualified under the several laws relating to elections. For the qualifications of the former, the charter is to be looked to, for those of the latter class, the constitution and general laws of the state. Even an alien inhabitant, under some of the old charters, had the right to vote at a charter election, though he never could be a voter at the other election. Stewart v. Foster, 2 Binn. 120. (See also, as to the construction of the act relating to boroughs, the case of the Borough of West Philadelphia, 5 W. & S. 281.)
Borough elections, by the 14th and 15th sections of the
* This so equitable a rule of election law, the court of common pleas of Philadelphia utterly ignored, on the trial of the contested elections of 1868; at that election, Mr. Justice Read having published, on the eve of the election, an extra-judicial opinion, that all the naturalizations in the court of nisi prius were illegal, under the acts of congress, the republican election officers made it a pretext for rejecting the votes of all naturalized citizens holding certificates of naturalization from that court, and the result was, that thousands of legal voters were disfranchised by this erroneous rule adopted by the election officers, and the result was entirely changed. The illegality of this ruling was subsequently established by the decision of that very court; and yet, they sustained their own party friends, who held the returns under it.