Melvin's Case

The opinion of the court was delivered, by Thompson, C. J. We think the court below committed a clear error in quashing the complaint of the requisite number of citizens 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 respondent over the contestant by an aggregate of 32 votes in the county. The complaint is for 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, was 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, respondent, 47 votes, and for the contestant, John R. Chadwick, 4 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 Tunangwant creek, at which place there were cast, returned and counted 183 votes for the respondent, and 114 votes for the contestant. In Hamlin township the election it is alleged was not held at the Aldrich school-house, the [337] 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 20 votes, and for the contestant 4 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, 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. The learned court quashed the petition on motion, because it was not alleged in it that these irregularities were committed for the purpose of advancing the election of the respondent and defeating the complainant. This was not material, we think, or necessary; had it been, the petition might have been amended; it was merely formal. The complaint is of an undue election, and that the respondent was illegally and wrongfully elected, and the contestant duly elected and entitled to the return; this was sufficient to give jurisdiction. Another reason for quashing the petition was that it did not allege that illegal votes were given at these districts enough to change the result of the election. A third was, insufficiency of the complaint in specifying the irregularities complained of in Corydon and Liberty townships. A fourth was, that if all the allegations in the petition were true they are insufficient to change the result of the election; and lastly, that no decree or order has been prayed for in the petition, or time or place fixed for a hearing. The second and fourth reasons for quashing the appeal seem entirely to ignore, as of no consequence, a compliance with the law fixing the places for holding the election in these districts by acts of the legislature and court, to wit, by the Act of 5th of March 1841, in Bradford township, at the school-house in Little-ville; by the Act of 4th of February 1859, at the Aldrich schoolhouse, and in the township of Wetmore by the Court of Quarter Sessions of McKean county, at the house of William Toby. The complaint shows that the election for 1870 was not held at either of the above-mentioned places,, but at other and entirely different places, neither fixed by law nor by the action of the court. The places for holding the general elections in this Commonwealth have always been fixed either directly by the legislature or by the courts under authority given by the legislature, or by a vote of the people under the Act of 20th of April 1854. Hundreds of acts in our statute books fully attest this legislative supervision of the appointment of places for holding gen [338] eral elections, and it is extended to all possible contingencies which may occur; for instance, where a particular building is designated as the place for bolding the elections in a township or district, and is destroyed, changed or altered, so as to be unsuited for the purpose, another place must be assigned by the proper court, subject to the action of the electors under the Act of 1854: see Act of 17th April 1866. Even in case of the existence of a contagious disease’s rendering a change necessary, the place for holding the election must in that case be designated by the governor, and notice thereof given by the sheriff at least seven days before the day of the election: see 9.4th section of the Act 2d July 1839. Can it therefore be maintained, in view of these provisions of law, that the places fixed for holding elections are merely directory, and may be disregarded by the election officers without any other effect on the poll than that which takes place in all regularly defined districts? We assuredly think not. What is the meaning of the requirement in the Act of 1839, of the notice to be given by the sheriff by proclamation of the time and place of holding the general elections, if not to notify voters where they are to assemble for the purpose of voting? This duty is mandatory upon the sheriff. A fixed place, it seems to me, is as absolutely a requisite according to the election laws as is the time of voting. The holding of elections at the places fixed by law is not directory; it is mandatory and cannot be omitted without error. I will not say that in case of the destruction of a designated building on the eve of an election the election might not be held on the same or contiguous ground as a matter of necessity — neeessitas non hdbet legem. But then the necessity must be absolute; discarding all mere ideas of convenience. It is, however, not necessary to adjudicate authoritatively as to this. To move the place of election three miles from that designated by law, or from a village and across a considerable stream a half a mile or more distant from the village, where it ought to have been held, or from a designated school-house to a vacant house more than a half a mile distant therefrom, without authority or any absolutely controlling circumstances, must render the election therein void, and if the votes taken be counted, constitute an undue election. This was decided by a committee of the House of Representatives of this state, in setting aside an election return from Potter county, which gave the seat to the contesting member, Mr. Beck, against the sitting member, Mr. McGhee. The sole ground was that the election had been held at a place not fixed by law in one of the townships in that county, but at another place: House Journal 1856, page 204. This was not a decision by the House in its political character, as suggested, but by a committee in a judicial character. There were one or more distinguished lawyers upon it. Indeed, the election laws are [339] generally as well understood by laymen in tbe country, as by lawyers, and it is no argument against that decision that laymen were of the committee. By the 15th section of the Act. of July 1839, the inspectors and judges are required “ to meet at their respective places appointed for holding the election in the district to which they respectively belong, before 9 o’clock in the morning of the second Tuesday of October of each and every year,” &c. Where is there any authority for meeting elsewhere ? I find none. But this was disregarded as to the places fixed in the case in hand, without even an attempt to show an overruling necessity justifying it, if we might concede that that might justify it. It seems to us that if the judges could carry and hold the election in districts half a mile distant from the appointed places, they might carry and hold them throe miles, as they did in one district complained of; and if they might go three miles distant, as they did in one district, they might without altering the principle of action in the least, go ten. It would assuredly inaugurate a fruitful source of fraud, and furnish a most fertile field of litigation. We cannot give our assent to any such practice. In Juker v. Commonwealth, 8 Harris 484, it is said that where the law prescribes a time and place for holding a corporation election the officers may not hold the election at another time and place. Without elaborating this point further, we regard the elections held in the districts named as void, for the reasons suggested, and hold that the returns should have been stricken out by the return judges if the facts be as alleged, and so far they are not disputed. That a whole election district may be stricken out, on showing an entire disregard of conformity to law in holding it, either by design or ignorance, is now well settled: 8 Harris, supra. In the minority opinion of this court in the cases of the contested elections of 1868 (2 Brews. 108), referred to in the argument of respondents’ counsel for a contrary doctrine from that claimed here misquotes that opinion. It is there said, “ I maintain that there is nothing which will justify the striking out of an entire division but an inability to decipher the return, or by showing that not a single legal vote was polled, or that no election was legally held per Thompson, C. J. The last we hold is what occurred here, to wit, that no election was legally held in the districts mentioned in the complaint of the petitioners. The doctrine of striking out entire divisions was held by the Common Pleas in that case and in Batturs v. Megary, 1 Brews. 162, in which we are referred to a decision in 1859 by Judge Taylor in Blair county to the same effect. In my opinion, however, this ought never to be done where a legal election as to time and plaee is held, although fraudulent votes shall have been received. The remedy in such [340] a case is to purge the polls by striking out the fraudulent votes if possible. We need not notice the suggestion that the county treasurer is not within the general election laws requiring time and place to be fixed for the election, as is the case with other offices. This is so obviously erroneous we will not spend time with it. We think that if the facts be as stated in the petition in regard to Cory don township, viz., that the election was not opened till 2 o’clock P. M. of said day, instead of between 6 and 7 A. M., as required, the return should have been rejected; but I think this complaint is not sufficiently averred, as it is conjoined in its injurious effect to the contestant with Liberty township. It should have been set forth 'separately. If necessary, this being formal, perhaps might be amended by stating the loss of votes occurring to the contestant in each of these districts. Rut it is likely that this will not be necessary if the other complaints in the petition be made out. It seems that amendments are allowable in cases of this kind: Contested Election Cases 1868, 2 Brews. 89; opinion of the majority of this court, per Agnew, Justice. In conclusion, we think the learned court erred in quashing the petition in this case, and that the order to that effect be reversed; and it is now ordered that the same be reinstated on the record, and that the Court of Quarter Sessions of McKean county do proceed to hear, consider and decide this case in accordance with law and the views herein expressed. Proceedings reversed and ordered to be remitted.