Frederick C. (Frederick Charles) Brightly.

A Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities online

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134 Commonwealth v. Shaver,

(Disqualifications for office.)
L. & Eq. 861, the court of queen's bench determined that, where the
law required the election to be by a majority of the guardians present,
and the meeting at which the elecdon of a clerk was held, conasted of
the chairman and twenty-one members of the board, an election by the
YOtes of eleven members (the chairman not voting) was invalid. Lord
Campbell saying, that the judges were all of opinion that the chairman
must be considered present at the election, and consequently, the person
declared elected had not a majority of the twenty-two guardians present.

Commonwealth v. Shaveb.

In the Supreme Court of Pennsylvania.

MAY TERM 1842.
(Rbported 3 Watts & Sbrobant 338.)

^Disqualifications for officeJ]

The trial and conviction of a sheriff, of the offence of bribing a voter,
previously to bis election to the office, does not constitutionally disqualify
him from exercising the duties thereof; it is not a ''conviction of misbe-
havior in office, or of any infamous crime," within the meaning of the

This was a quo warranto issued on the relation of Jacob
Africa against John Shaver, to inquire by what authority
the defendant exercised the oflBce of sheriff of the county
of Huntingdon.

In October 1841, the defendant was elected sheriff of the
county of Huntingdon, and was commissioned on the 8d
November 1841. At the January sessions 1842, he was
tried and convicted of the offence of bribing one Chris-
tian Couts, prior to his election, to vote for and support
him for the office of sheriff; and at the April sessions
following, he was sentenced to pay a fine of $100, and to
undergo an imprisonment for one month in the county
jaiL The governor, thereupon, on the 18th April 1842,

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Commonwealth v. Shaybr. 135

(Disqtialiflcalioiis for office.)

issued a supersedeas revoking his commission ; but as he
still continued to exercise the duties of the of&ce, and to
take and receive its emoluments, this writ of quo warranto
was sued out by the attorney-general,

Johnson^ Attomey-Gteneral, with whom was Ayres^ for
the relator.

Miles and Bell^ for the defendant.

EIennbby, J., delivered the opinion of the court. The
point to be decided in this case arises out of the ninth
section of the sixth article of the constitution of the state,
which is in the following words: "All officers for term of
years shall hold their offices for the terms respectively
specified, only on the condition, that they shall so long
behave themselves well ; and shall be removed on convic-
tion of misbehavior in office^ or of any infamous crim£j^ It is
very clear, that sheriffs, as well as all other officers holding
their respective offices for a term of years only, are em-
braced within this provision of the constitution, so tliat
the respondent, though duly elected and commissioned to
the office of sheriff*, cannot claim to hold it, after he has
been convicted of misbehavior in it, or of any infamous
crime. But has he been convicted of either the one or the
other of these offences? is the question which remains to
be solved.

As to misbehavior in office, it is perfectly manifest,
that he has not even been charged with, much less, con-
victed of it. But it has been urged, and indeed, strenu-
ously too, on behalf of the commonwealth, that he has
been convicted of an infamxms crirn^. That he has been
convicted of an offence of great public concern cannot be
denied ; for, it unquestionably is of vital importance to
the best interests of the republic, that the purity and
freedom of the election of all its officers should be pre-
served, and kept free from every species of improper bias
or corruption. In order, however, to determine whether

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(DisqnalificfttioiiB for office.)

the crime of which the respondent has been convicted, be
infamous within the meaning of the constitution, or not,
it becomes necessary to examine and ascertain first, what
the framers and makers of it meant bj the words '^ inffunous
crime." For, although we may think, that the offence of
which the defendant has been convicted, is such as ought to
disqualify him for holding the office, yet we are not to let
our private feelings or sentiments influence or govern us
in deciding this point. Instead of submitting to such an
influence, it is our bounden duty, after a careful examina-
tion of the question, to determine it according to what we
believe was intended by the makers of the constitution,
which must be regarded as the law on the subject. Before
proceeding, however, to ascertain this, it may be proper
to observe, that we have no act of assembly which goes
to render the commission of the respondent void, for or
on account of the offence committed by him; whether,
therefore, his commission can be considered void, or he
removed from his office, by reason of his having committed
and been convicted of the offence of bribery in canvassing
for it, depends entirely upon the true meaning and import
of the words of the constitution in respect to the same.

K, upon examination, it shall be found, that the words
^4n£Eimous crime" have received, in law, a fixed and
definite meaning, it will certainly furnish strong, if not
conclusive ground, for holding that such must have been
the meaning which the makers of the constitution in-
tended should be affixed and given to them; and more
especially ought we to come to this conclusion, if it shall
be found impracticable to discover and lay down any other
rule by which crimes may be determined, with reasonable
certainty, to be infamous or otherwise. For, although an
officer may, in a popular sense, be said to have rendered
himself infamous^ by the general tenor of his immoral
conduct, without having rendered himself liable to a
criminal prosecution and punishment, at law, yet, it
is very clear, that the makers of the constitution did
not intend that the word "infamous" should be applied to

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Commonwealth v. Shavbr. 187

(Disqualifications for office.)

any ofBcer, so as to cause him to be removed from office,
however immoral his conduct may have been, unless he
has been guilty of some offence that is made punishable
by law; because, by the express terms of the provision,
he is not to be removed from office, without a previous
eanvictiony which can only be, when the offence committed
by him is such as is made punishable by law. He may,
therefore, have become infamous in the general estimation
of the world, by having rendered himself odious and
detestable (which is one of the meanings given by Mr.
Webster, in his Dictionary, to the word " infamous"), with
out having made himself liable to a prosecution and con-
viction at law for his misconduct. Indeed, he may be so
notoriously and entirely destitute of truth, as to be alto-
gether unworthy of credit, even when called to testify on
oath, and yet never have been guilty of perjury or any
other indictable offence. In short, there are also many
evil practices of which a man may be guilty, beside that
of lying (which may be said to lie at the root of almost
all moral obliquity), for which he cannot be indicted or
punished by law, and yet they are sufficient to render him
infamous in the estimation of the more intelligent and
virtuous portion of the community. They are so nume-
rous, it would be difficult to enumerate them all ; and at
the same time, so various, that there might probably be
some diversity of opinion whether they ought to be re-
garded as attaching infamy to the person.

But since, according to the express terms of the provi-
sion in the constitution, it is only on conviction of the
officer, either of misbehavior in his office, or of some infa-
mous crim^j that it is declared he shall be removed from
his office, it would, therefore, seem as if the makers of the
constitution intended that the law in force for the time
being, should determine whether the crime was infamous
or not. If this had not been intended, it is reasonable to
conclude, that they would have given some explanation of
what they meant by the term " infamous ;" but not having

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138 Commonwealth v. Shaver.

(Disqualifications for office.)

done this, we are left to infer, very fairly, that they in-
tended to use it in its legal acceptation, which was settled
and known, and therefore, rendered all explanation un-
necessary. Besides, the words " infEimous crime" are pro-
perly a legal phrase, and are, therefore, to be taken in their
legal sense, unless, from the context, it appear that such
was not the intention, which cannot even be pretended to
be the case here; but the contrary would seem to be most
clearly indicated, by the use of the word "conviction."

It becomes necessary, now, to ascertain the legal import
of this phrase. Mr. Webster, who, in his Dictionary,
adopts the meaning given by the Encyclopedia to the
word "infemy," says, "in law," it means "that loss of
character or public disgrace which a convict incurs, and by
which he is rendered incapable of being a witness or juror ^^^
and accordingly, in Tomlin's Law Dictionary, in explain-
ing the same term, it is laid down, that infamy extends to
forgery, perjury, gross cheats, &c., and disables a man to
be a witness or juror. It has unquestionably been clearly
settled, that the conviction of a person of an infamous
crime^ renders him incompetent to be a witness thereafter;
but the conviction of a crime, considered not infamous at
common law, has never been held, unless by statute, suffi-
cient to disable him from being a witness. See Co. Lit.
6 b; Com. Dig., tit. Testimony, A, 3, 4; Clancey's Case,
Portescue 208; Baring v. Shippen, 2 Binn. 165; 1 Phil.
Ev. 24-6; Bushel v. Barrett, Ry. & Mood. 434; s. c. 21
Eng. C. L. Rep. 483. The offences which disqualify a
person to give evidence, when convicted of the same, are
treason, felony, and every species of the crimen falsi^ such
as forgery, peijury, subornation of perjury, attaint of false
verdict, and other offences of the like description, which
involve the charge oi falsehood^ and affect the public ad-
ministration of justice. 2 Hale, P. C. 277; Com. Dig., tit.
Testimony, A, 3, 4; Co. Lit. 6 b; 1 PhiL Ev. 20-2; 2
Russell on Crimes 602-3.*

* And see Barker «. People, 20 Johns. 457.

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Commonwealth v. Shaver, 189

(DisqaslificatioiiB for office J

So bribery, taken in a somewhat restricted sense, may
be regarded as an infamous offence, and for that reason,
renders the party convicted of the same, an incompetent
witness; as, for instance, in the case of receiving or offer-
ing any nndue reward by or to any person whatsoever,
whose ordinary prof ession or business relates to the admin-
istration of jpyhlic justice^ in order to influence his behavior in
office^ and incline him to act contrary to the known rules of
honor and hxmesty. 1 Hawk. P. C. ch. 67, § 2 ; 8 Inst. 146 ;
4 Bl. Com. 189; 1 Russell on Crimes 156. Though, in
Clancey's Case, Portescue 208, where, after great delibera-
tion, a conviction of bribing a witness to absent himself
and not give evidence, was held to be an infamous offence
by seven of the judges, and for that reason, rendered the
party incapable of giving evidence, that great and dis-
tinguished judge. Lord Holt, then chief justice of the
king's bench, doubted the propriety of the decision. The
ground of the decision in Clancey's Case, was, that the
purpose of the bribery was tojjbstruet and pervert the ad-
ministration of public justice J by preventing the truth from
being made known. The same ground was adopted in a
late case of Bushel v. Barrett, Ry. & Mood. 434 ; in this
latter case, the objection to the witness was, that he had
been convicted of a conspiracy to bribe a person, summoned
as a witness (on an information for an offence against the
revenue laws), not to appear before the justices of the
peace, who were to investigate the matter and decide on it ;
and it was held by the court, according to the principles
of Clancey's Case, that he was rendered incompetent by the
conviction. And it is perfectly clear, from what the court
say in this latter case, as also in the case of Clancey, that
it was not because the party had been convicted of bribery
6r a conspiracy to bribe, that he was rendered infamous,
and therefore, incompetent to give evidence ; but because
he had become so, on account of the object that was in-
tended to be effected by means of the bribery, which was
that of obstructing and perverting the administration of public

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(DisqualificationB for office.)

But corrupt and illegal practices in giving rewards or
making promises, in order to procure votes in the elections
of members to serve in parliament, although in a more ex-
tended sense denominated bribery, and punishable at com-
mon law (Rex v. Pitt, 8 Burr. 1885, per Lord Mansfield),
have never been held to render persons convicted thereof,
infamous, or incapable of giving evidence, or serving as
jurors. Indeed, I think I may say, it has never occurred
to any one, to make the objection as founded upon the
principles pf the common law; which, of itself alone, is
very powerful, if not conclusive evidence, to show that
such corrupt and illegal practices were never considered
infamous crimes. Statutes, however, have been passed in
England, as also in some of the United States, rendering
persons convicted of bribery at elections, incapable of
holding thereafter any office or franchise, or of voting at
the same. See 1 Russell on Crimes 156 and note a. The
passage of these statutes also furnishes strong evidence
that a conviction at common law did not work any dis-
qualification to hold office or give evidence; otherwise,
the passage of them would have been unnecessary.

But it has been said by the counsel for the common-
wealth, that it properly belongs to the governor to settle
and decide the question that is presented here; that he
has already determined that the defendant, by reason of
his conviction, is no longer entitled to hold the office of
sheriff; and that the decision of the governor, thus made,
is binding and conclusive upon this court. It would seem,
that the governor did entertain the opinion that the de-
fendant had become incapable of holding the office ; but
whether for the same cause that is now assigned on the
part of the commonwealth, may be questionable, because
we have before us a copy of what is called a supersedeas^
issued by him, bearing date the 18th April 1842, directed
to the defendant, wherein, after reciting that the defendant
had been duly commissioned sheriff of the county of Hun-
tingdon, and that he afterwards had been convicted, at

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Commonwealth v. Shaver. 141

(Disqualifications for office.)

January fleseions 1842 of the court of quarter sessions
of said county, of a misdemeanor, and sentenced by the
said court, on the 16th April 1842, only two days anterior
to the issuing of the supersedeas, to pay a fine of $100, and
to undergo an imprisonment for one month in the jail of
said county, the governor declares, that for the cause thus
stated, it fully appears to him, that the defendant had not
behaved himself well in the said office, and therefore, ought
not any longer to exercise the said office of sheriff con-
ferred upon him ; and then he, the governor, thereby re-
vokes, annuls and supersedes the defendant's commission
of sheriffalty. Now, it is very apparent, from the face of
the supersedeas, that the governor had been given to un-
derstand, in some way or other, that the defendant had
been convicted of misbehavior in office; for he says expressly,
that it appeared fully to him, from the conviction, which
he recites as being of a misdemeanor, that the defendant
had not behaved himself well in his said office of sheriff;
whereas, it appears plainly, from the exemplification of the
record, produced here, of the only conviction that is alleged
to have taken place against the defendant, that it was not
for misbehavior in office, or anything of the sort, but for
bribing an elector to vote for him as a candidate for the
sheriff's office, before he obtained it. Hence, I am inclined
to believe, that the governor could not have derived his
information of the conviction upon which he acted from
a regularly certified copy of the record thereof, which
ought to have been furnished to him, or otherwise he
would not have fallen into such an error, it being one of
fact simply, which required no legal knowledge or acumen
in order to guard against it. Then, supposing it was a
matter upon which he was authorized to pass conclusively,
it would appear that he decided upon a case altogether
different from that which is presented to us ; and it would
seem to have been one, too, which never existed; and
therefore, cannot be considered as having any effect upon
the present.

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(Disqoalifications for office.)

But the governor's action in this case cannot be said to
partake, properly speaking, of a judicial character; for,
it was expartCj without any previous notice whatever to
the defendant; and it would, therefore, be unreasonable
, in the extreme, to regard it as conclusively binding upon
the rights of the defendant. Besides, I am not satisfied,
that the governor has any power to issue any other species
of supersedeas, when a vacancy takes place in the sheriff's
office, than that of a new commission to fill it until the
next general election, which he is authorized to do by
the first section of the sixth article of the constitution ;
this, at least, I think, may be considered as the only super-
sedeas which he is eayr^^^/'y authorized to issue. by the

The argument that the defendant's confinement, under
the sentence of the court, rendered it impracticable for
him to execute the duties of his office in person, and there-
fore, he ought to be considered as virtually removed from
it, does not seem to merit notice; for, as well might the
same effect be said to have been produced, if his confine-
ment had been caused by sickness ; in either case, all the
duties that could not be performed by him personally, he
would have discharged by his deputy. Nor is the argu-
ment that the defendant could not have the charge of the
jail of the county, while he himself was a prisoner in it,
seeing this would have been leaving it to his own will to
have his sentence carried into effect, or not, as he pleased,
entitled to any greater respect ; because it was altogether
feasible for the coroner, who had the defendant in charge,
to have an exclusive control over part of the jail, for that
purpose; or, if the building used as a jail, in the county,
would not admit of that, he could, as it would have been
his duty, have procured an apartment in another building,
or the whole of another building, if requisite, for the pur-
pose of confining the defendant in it ; for, the jail in a
county, does not, of necessity, consist of one entire build-
ing alone ; two or more may be obtained and occupied for

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Commonwealth V Shavbr. 143

(DiBqtialiflcation8 for office.)

that purpose, whenever the exigency of circumstances,

whether accidental or otherwise, shall render it necessary.

Judgment is, therefore, rendered for the defendant;

and that he recover his costs of Jacob Africa, the relator.

Judgment for defendant.

Where the law confers upon a municipal legislative body the power
of judging of the qualifications of its own members, it has been held,
that they haye exdusiye jurisdiction to determine whether one of their
members has or has not vacated his seat by accepting a disqualifying
office; and that the courts have no jurisdiction in the premises. Com-
monwealth V. Loughlin, 20 Leg. Int. 100 ; Commonwealth v, Barger,
Ibid. 101. It seems, that where a city charter requires one of its offi-
cers, in the execution of his official duties, to reside without the territo-
rial limits of the corporation, he does not thereby lose his qualification
for another office which requires a two years* residence previous to the
election; the doctrine seems to be, that if the office be irrevocably con-
ferred for life, the law fixes the domidl at the place where the functions
are to performed; but that, if it be temporary or revocable, the presump-
tion is against a change. Commonwealth «. Jones, 12 Penn. 8t. R.
865, per Gibson, C. J. It has been decided that, under a statute which
disqualifies persons ** holding an office under the government of the
United States, *' from serving in a municipal office, a deputy-marshal is
incompetent ; he is a recognised officer of the United States. Common-
wealth V. Ford, 6 Penn. St. R. 67. *^ There is no state in the union,''
said Mr. Justice Bumside, in that case, *^ whose people and government
bave been more jealous of state rights than the people and government
of Pennsylvania." The word ** eligible" relates to the capacity of
holding as well as the capacity of being elected to an office. Carson v
McPhetridge, 15 Ind. 827. See CusWng's Lex Pari. Am. § 78.

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Commonwealth v. Clulbt.
In the Supreme C!ourt of Pennsylvania.

(Repobtbd 66 Pennsylvania State Reports 270.)

[^Majority for disqualified person.']

Where, at an election for sheriff, a majority of the votes are cast for a
disqualified person, the next in vote is not to be retomed as elected.

Rule to show cause why a quo warranto should not issue,
on the suggestion of J. T. McLaughlin, against Samuel B.
Cluley, to show by what warrant he held and exercised
the office of sheriff of Allegheny county.

The suggestion set forth that at the general election
held on the 9th of October 1866, Cluley received 19,915
votes for the office of sheriff, and McLaughlin received
12,925 votes for the same office; that Cluley was com-
missioned on the 12th of November 1866, notwithstanding
he had been commissioned for the same office on the 28th
of August 1863, and had discharged its duties until the
first Monday of December 1866, and could not lawfully be
commissioned as sheriff of the same county twice in six
years, under the 1st section of the 6th article of the con-
stitution of Pennsylvania.

J. K. Kerr J JR. B. Roberts and W. H. Lowrie^ for the

T. M. Marshall and J. Veechj for the respondent.

Strong, J., delivered the opinion of the court. A writ
of quo warranto is not a writ of right. Even our act of
assembly of June 14th, 1836, recognises this; it enacts
that such writ may be issued by the supreme court in all
cases in which the writ of qtw vxirranto at common law

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Commonwealth v. Clulby. 145

(ICi^oritj for disqualifled penon.)

may have been issued, and in which the court had, before
the passage of the act, the power of granting informations
in the nature of such writ. The British statute of 9 Ann.
ch. 20, was not, at first, adopted in this state; it was not
reported in force by the judges; but its provisions were
incorporated into our revised code.

Under the British statute, it was always held to be
within the discretion of the court, whether to grant or
withhold an information in the nature of a quo warranto^
and the court acknowledged themselves bound to exercise
a sound discretion upon consideration of the particular
circumstances of each case. This was said by Lord Mans-
field in Rex v. Wardroper, 4 Burr. 1964; and the same
rule was recognised in Rex v. Dawes, 4 Burr. 2022, and in
Rex V. Sargent, 5 T. R. 466 ; and there are cases in which
courts have refused leave to file an information, at the
suggestion of a private relator, even when a valid objec-
tion to the defendant's title has been shown. Rex v. Parry,
6 Ad. A Ellis 810; 2 N. A P. 414. Nor has this court,
since the act of 1836, adopted any other rule. In Ck)m-
monwealth v. Jones, 12 Penn. St. R. 865, the British
practice was recognised as the rule with us ; and though
it has since been decided, that it is not indispensable that
a rule to show cause should be obtained, before the writ
can issue, no decision has been made that this court is
obliged to entertain such writ, if, in their opinion, it was
improvidently issued. The issue of the writ does not end
the discretion of the court.

Before the act of 1836, informations in the nature of

Online LibraryFrederick C. (Frederick Charles) BrightlyA Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities → online text (page 16 of 71)