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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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 44 of 71)
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456 SCBANTON BOEOUQH ELECTION.

(Powers of the courts.)

they were mistaken, though honest in their own opinions,
in estahlishing 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 elec-
tion, as it operated upon voters, by giving jurisdiction
over cases "of undue elections and felse returns," when,
in legal and statutory form, brought under our cognisance.
Act 2d July 1839, § 151, Purd. Dig. 800. K 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 undueyemd the returns /o/^e,
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 con-
sidered necessary to prove that each individual so affectea
tendered his vote to the board and was refused, or how
they would have voted, if admitted. K 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



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ScRANTON Borough Election. 457

(Powers of the courts.)

vote formally rejected; virtually, it was bo, 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 per-
sons. 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 con-
struction of the act relating to boroughs, the case of the
Borough of West Philadelphia, 6 W. & S. 281.)

Borough elections, by the 14th and 15th sections of the

• This 80 equitable a role 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 haying 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 erro-
neous 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.



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458 ScRANTON Borough Election.

(PoweiB of the courts.)

act of 1851 (Purd. Dig. 119), are (unless otherwise ordered
by the charter, which is not the case in Scranton) to be
held at the time and place appointed by law for the elec-
tion of inspectors, and in accordance with and subject to
all the provisions of the law regulating township elections,
80 far as applicable; again, by the 8d section of the act of
1889 (Purd. Dig. 870), the time and place for electing in-
spectors, is fixed at the time, &c., for electing constables,
which is at the same time, Ac, with other township officers.
The time and place, then, of holding the Scranton election,
was right, for the officers of both characters. How far are
the laws regulating township elections further applicable
to such a borough election? Just so far, in our opinion,
as, by law, officers similar to township officers and known
by name to be such, are to be elected. Township electors
are to elect township officers, and the law directing such
an election applies to themj and in the case of a borough,
it applies to similar officers. Though the term "borough
election" is used in the statute, yet, regarding it as of a
double character, as we have heretofore explained, there
is no difficulty in recognising the distinction we now take.
Who then are tovmship officers, within the meaning of
the statute? They are named in the 117th and following
sections of the act of 15th April 1884 (Purd. Dig. 962-6),
together with, so far as Luzerne county is concerned, the
act of 1842 (Pamph. Laws 47), allowing the election of
overseers of the poor. Who are the similar officers of a
borough? They are found (called by the same names), in
the borough act of 1851, § 14 (Purd. Dig. 119), to wit,
assessors and assistants, auditors, constables and overseers
of the poor; the office of a supervisor is not known in a
borough. We now, then, find certain officers both in
townships and boroughs, bearing the same names, and
fulfilling similar duties, and similar in all respects, whose
elections are to be regulated by the same laws, and neces-
sarily, therefore, subject to the same incidents. As to
charter-officers, however, the case is difierent; there are



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ScRANTON Borough Elbctiok. 459

(P^nreFB of tlie oourto.)
no similar officers in townships, and the election law is no
further applicable to them, than as to time and place, and
the official holding of the election. Neither are the in-
spectors and judge of an election, township officers, nor
subject to any incidents connected with tl^ir election,
other than those applicable to borough charter-officers ; a
township officer, as the law now stands, being a well-known
and definite term, applicable to particular named officers
and no others. See Leib v. Commonwealth, 9 "Watts
219-20. The subject is somewhat confused, and to be
understood only by comparing together the several acts of
assembly; while we do not profess to give in this opinion
all our reasons for the conclusion at which we arrive, or,
in detail, a comparison of the acts, we more briefly state
the result which has been reached on consideration of the
whole question. "We think it simplifies the proceedings
connected with this two-faced or double election, and se-
cures to every one the rights promised to him by the con-
stitution and general laws of the state, in connection with
all other citizens; while at the same time it makes him
subject to borough regulations and limitations, which he
agreed to assume and submit to, by voluntarily becoming
a corporator and citizen of a particular borough. It
may be, perhaps, proper to assume, that the decision of
the supreme court in Brunott v. McKee, 6 "W. k S. 514,
that a constable is not, for certain purposes, to be regarded
as strictly a township officer alone, does not affect the
present argument.

One general system of public elections is established by
the act of 2d July 1839, modified in some few particulars
by later statutes. It is enough for us now to say, that this
act covers and controls, so far as material to any question
here, all public officers, state, county and township; the
general class of electors for all such officers is named,
their qualifications being the same. The 68d section of
the same act, adopting the words of the constitution, fixes
the qualifications of a voter, and refers, by express words.



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460 ScRANTON Borough Election.

(Powers of the courts.)

"any election as aforesaid," to the previously-appointed
elections for any and all such officers, including inspectors,
&c., and township officers. The system is uniform, is
based on the constitution, and no new act of the legisla-
ture can change such a provision, so as to affect the con-
stitutional qualification, either by diminishing or adding
to it any prerequisite. The right to enjoy and exercise
the privilege of voting for public officers, upon certain
stipulated terms, is secured to the people by the constitu-
tion, and it cannot be supposed, that the legislature ever
intended, if they could so legally have done, to make the
qualification for voters, for similar public officers, different
in different places. We cannot, then, come to any other
conclusion, but that, as to inspectors, &c., and officers who,
under the act of 1884 and its supplements, are called
"township officers," and also are to be voted. for by citi-
zens of a borough, as public officers, under the same gene-
ral regulations and authority, the true qualifications of a
voter are the constitutional and statutory provisions of the
act of 1889, before referred to; and that the further pre-
requisite of residence for six months, and payment of a
borough tax, under the act of 1851, cannot be required in
a voter, offering to vote for such officers. Such a limita-
tion, however, is entirely proper and lawful, in deciding
upon the qualification of a voter, offering to vote for
charter or corporate officers of a borough.

The qualification of electors for school directors, under
the original act of 1st April 1884, P. L. 170 (and never
since, in this particular, changed), evidently refers to the
same prerequisites, as those of electors for constables and
township officers. Such an election is regarded as a public
election by the people throughout the state, voting in their
several districts, for a common purpose and object, and
therefore, to be governed by similar rules. Indeed, a
borough may now, under certain circumstances, be con-
nected with a township, as one school-district, and in such
a case, it would be a strange anomaly, if, in voting for the



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ScBANTON Borough Election. 461

(Powers of the courts.)

same candidates for the same, or but one office, there could
be a diflferent rule of qualification for the voters living
within or without the bounds of the borough.

This court has nothing to do with the election of "Trus-
tees of Proprietors' School Fund ;" their election cannot
be tested in this mode, and we know nothing of the quali-
fication of electors.

We think, then, that under the 14th and 15th sections
of the act of 1861, above cited, the provisions with regard
to township elections, so far apply to those of similar
officers under a borough, that as a necessary incident issu-
ing therefrom, this court has a right to inquire as to the
validity of the election of borough officers, similar to town-
ship officers, as we have already referred to them. As,
then, under the evidence in the case, it is clear, that the
qualification of the prepayment of a borough tax was
required from any admitted voters for such officers, others
being rejected for want of this qualification, such rule
being wrongly laid down by the board, there is reasonable
probability that it may have affected the result of the
election; and we feel called upon, therefore, to pronounce
the election, for this reason, if for no other, an undue elec-
tion; and as to assessors and assistants, constable (hereto-
fore disposed of), overseers of the poor and school directors,
such election is set aside.

We do not find that any jurisdiction is, by law, given
to this court, to decide upon the elections of inspectors
and judges. The 158d section of the act of 1839 (Purd.
Dig. 392) gives jurisdiction to the court to hear and deter-
mine, not all cases of contests of elections in townships,
but only those in which the election of county or town-
ship officers is contested. As clearly appears, from what
we have heretofore stated, inspectors and judges are not
such officers within the meaning of the statute, as the per-
sons intended are specially named in the act of 1834, before
cited. The election of inspectors is required to be at the
same time and place with that of constables, but no pro-



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462 ScRANTON Borough Election.

(Powers of the courts.)

vision is made for a contest. By the act of 2l8t June
1839 (Purd. Dig. 589), elections of justices of the peace are
directed to be held at the same time and place as elections
for constables; yet, here the legislature felt that, in order
to give a court supervision over the election, it was neces-
sary expressly to provide for a contest by the 3d section
of the same act. So, with regard to school directors,
though the election is held at the same time and place,
special authority to contest the election was given by the
5th section of the act of 1849 (P. L. 442); and again re-
peated, upon a change of the law, by the 6th section of the
act of 1854.* Purd. Dig. 168. We consider, then, that we
have nothing to do with the inspectors and judges returned
as elected. It follows, too, from the conclusions we have
heretofore reached and stated, that the mere charter-offi-
cers, the burgess and council, are not within the scope of
the present complaint in the quarter sessions;! their right
to hold office can only be investigated upon a quo warranto
in the common pleas. It should be remembered, too, that
the ground of objection to the election of officers, which
is now sustained, would be, or rather is, no objection to
the election of charter-officers.

The question is raised before us, whether the whole of
the 6th section of the act of 1884, relating to borough
elections, published, as in force, in Purd. Dig. 118, is not,
in fact, repealed by the 34th section of the act of 3d April
1851. The words of this section are, "that all general
laws of the commonwealth, inconsistent herewith, are
hereby repealed." The section thus claimed to be abro-
gated is a very comprehensive one, and as to the' greater
part of its provisions, is certainly repealed by other acts,

* Under this act, the court has Jurisdiction on the petition of parties
contesting the election of a school director ; but where there is an election
to fill a supposed vacancy, it has no jurisdiction to decide upon the validity
of such election. Collins's Case, 2 Grant 214.

t The Jurisdiction was extended to contested elections of borough and
ward officers, and of judges and inspectors of elections, in Northampton
and Lehigh counties, by act of 9th March 1871. P. L. 201.



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ScRANTON Borough Election. 468

(Powers of the courts.)
inconsistent with it and changing it in such particulars;
still, we believe it is partially in force, and that, in case
of a vacancy in charter-offices named in the section, a new
election should be held under and in conformity with it.

Our reasons for this conclusion are, briefly, that in
case of any such vacancy, there is no other authority
given in the act of 1861 or elsewhere, to supply it; the
court certainly cannot do it, and the people, without this
authority or some other more specially provided in the
charter, will be equally without power. We do not con-
sider it the fair intent and legitimate meaning of the 19th
section of the act of 1851 (Purd. Dig. 119), that "officers
are to serve until others are duly elected and qualified,"
that, in case of difficulty or fatal irregularity in an elec-
tion, it contemplates the necessary continuance of the old
charter-officers, for one whole year, or until the next an-
nual election ; the true meaning would seem to be, that
they should continue in office until an apparent vacancy
be supplied; looking for a speedy filling of that vacancy,
as in other elective offices generally. If this be not cor-
rect, then, if the officers of a charter-election, or the con-
stable, whose duty it is to give notice of an election
according to law, choose to misconduct themselves for the
very purpose of keeping an existing council in office, there
would be no way of preventing this result, for one year
at any rate, and perhaps longer. It is contrary to the
spirit of our institutions, that officers, elected for a limited
time, should be enabled, by the misconduct, perhaps, of
some of their own friends, to retain office for a double
period, contrary to the clear and manifest will of the
people; yet such may be the result, if there be no mode
of filling a vacancy, either by appointment or new elec-
tion. Other cases of difficulty may arise, where there
is misconduct in no one, and yet a vacancy. Suppose
the full number of councilmen are not elected, or, if
elected, that one or more of them die, after the election
and return, but before being qualified, there will then be



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464 ScRANTON BoBOuaH Electioic.

(Powers of the courts.)

a vacancy; what particular members of the old council
will continue in office to supply the want? all have an
equal right to claim it, and who will decide between them?
The absolute necessity of providing for such cases, would
induce us to hesitate in pronouncing this section of the
act of 1834 entirely repealed, even if the alleged repeal-
ing clause of the late act were more broad in its terms
than it is shown to be; on the other hand, when, as this
repealing clause is really worded, we find nothing relating
to this point in the new act, inconsistent with the provi-
sions of the older one, but in entire harmony with it, from
the feet that the new act provides for no such cases, why
should we consider it repealed? The argument of the
court, in their opinion in Street v. Commonwealth, 6 W.
& 8. 212, is referred to, though not analogous strictly in
everything, except its general spirit.

We should not have deemed it necessary to give this
opinion, in reference to vacancies in charter-offices, though
we were earnestly asked by one of the counsel, in his ar-
gument of this case, to do so, were it not that, so far as
this same section applies to constables and overseers, we do
think it is changed by the act of 1851; it became necessary,
therefore, so fer to qualify our opinion, as to show how fer
alone, we think it is repealed. The section of the act,
heretofore cited, placing the election of the constables and
overseers under the same rules as similar township officers,
is inconsistent with the provision of the earlier borough
act of 1834, if they refer to the same kind of constable.
It may also be observed, that when this act of 1st April
1834, was passed, the bill, which subsequently, on the 15th
April of the same year, became a law, abolishing the office
of overseer in the townships, had been reported by the
commissioners, printed, and its passage fully anticipated.
It being thereby intended, afterwards, to dispense with
the township office of overseer, it may have induced the
legislature, as there were no supervisors in boroughs to
take upon them their duties and the charge of the poor,



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SCBANTON BOBOUGH ELECTION. 465

(Powers of the courts.)

to name overseers as borough officers, special in their
character, and their vacancy to be supplied in the manner
then provided. When, however, the office was renewed
in the townships, and the old general system of the con-
trol of the poor and the pauper districts resumed, before
the act of 1851, it seemed but reasonable to put similar
officers upon the same footing, both in boroughs and town-
ships, giving to the courts, in case of a vacanqr, the inci-
dental right, in both cases, of appointment.

The constable named in the act of 1884, called in the
6th section "town constable," and in the 6th section,
"high constable," seems to be a different officer from the
one mentioned in the act of 1861, by name; the appoint-
ment of high constable depends upon the provisions in
the charter.

The testimony of those who are not petitioners, is
sufficient to establish the facts upon which this opinion is
founded ; still, I am inclined to think, for the reasons given
in Kneass's Case, 2 Pars. 590 (ante 373), and 1 Phila. 159,
that their interest, if any, was so indirect, remote and un-
certain, that it should go to credit rather than competency.

The judgment of the court is, as follows : The evidence
having established an undue election for the following
named officers of the borough of Scranton, the election
for assessor and assistant-assessor is set aside, and the
county commissioners will fill the vacancies; the election
of auditors and overseers of the poor is set aside, and the
court will make appointments to fill the vacancies ; the
election for school directors is set aside, and a new election
ordered under the provisions of the sixth section of the
act of 1834, of which the proper officer will give two
weeks' notice, according to law; the complaint against
the returned election of burgess, five councilmen, one
judge and two inspectors of election, and three Trustees of
Proprietors' School Fund, is dismissed, this court having
no jurisdiction in the premises ; costs to be paid out of
the borough treasury.
30



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466 SCRAKTON BOROTTGH ElBCTIOK.

(Powers of ^e oourts.)
The conrto, in deciding cases of contested elections, act in a judidal
capacity ; they are not like a board of canvassers, but their dnties are
to examine into the existence of such specified frauds and irregularities
as would nullify the result arrived at by the rejtom Judges. Eneass's
Case, 2 Pars. 658. In Mann «. Gassidy, 1 Brewsl. d5, Thompson, P. J.,
said, **the act of assembly which devolves on ti^e court this most un-
pleasant Jurisdiction, in addition to the authority vested in it as a Judi-
cial tribunal, clothes it with powers whidi, by the same act, are con-
ferred on committees of the legislature. These indude the power 'to
decide not only on the vali4ity of the contested elefction,' but also
* which of the candidates had the greatest number of legal votes.'
This grant of power was necessary, to enable the court to act in the
premises, as, without it, it would be difficult, in a proceeding where the
investigation is to be made upon the repres^itation merely of twenty
citizens, with a dmple notice of the time of hearing to the persons re-
turned (which notice may be entirely disregarded), to proceed, by the
exercise of any of the well-defined powers of a court of law, to decide
upon the rights of the several parties interested as candidates. In this
proceeding, there is no provision for bringing any oj^site party into
court ; or, in case of neglect or refusal to appear, for taking a decree
by default or confession. There is no answer re<}uired from any one to
the petition presented; nor any rule or regulation to produce an issue.
The simple process is, the presentation of the petition, on which the
couri is required to fix a time of hearing, with ten days' notice thereof
to the 'person returned.' As it would be inconsistent with the other
duties of the court, to inquire into every vague allegation which might
be made as to the fiEdmess of an election, it was early seen, that the
court must, of necessity, adopt some rules to regulate election cases, as
they do other cases, and that to bring such cases, as far as possible, within



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 44 of 71)