In re Contested Election of Barber

Mr. Justice Woodward delivered the opinion of the court, Proceedings to contest the election of Barber as prothonotary of [397] the Court of Common Pleas of the county of Luzerne, were begun on the 6th of December 1876, twenty-nine days after the date of the election. On the 7th of December notice of those proceedings was given to the governor, who issued a commission to Barber the same day. . The question of the effect of the commission is presented by this record. S. W. Trimmer, in pursuance of a previous election, had been commissioned as prothonotary until the first Monday of January 1877, and until his successor should be duly qualified. In a case stated in the nature of a quo warranto, beT tween Barber as plaintiff and Trimmer as defendant, the Common Pleas decided that Barber was entitled to hold and exercise the office pending the contest, and entered judgment of ouster against Trimmer. In the determination of this question the construction of the provisions relating to contested elections of the Act of the 2d of July 1889, of the constitution of 1873, and of the Act of the 19th of May 1874, is necessarily and directly involved. ' The 3d section of the Act of 1839 prescribed the manner in which returns of the election of county officers should be made out, filed in the prothonotary’s office, transmitted to the secretary of the Commonwealth, and delivered to the successful candidate. Thereupon, commissions by the governor were required to be issued. The proviso to the section contained this explicit direction: “ No commission shall issue within the lapse of thirty days after the election, and shall commence and take effect from the 1st day of December next after such election, unless when the same is suspended by reason of a contest under the .oth section of this act, in which case the commission shall take effect from the time of the legal qualification of the officer under the same, and expire on the 1st day of December, as in other cases.” This direction "was repeated in the concluding .clause of the 5th section of the act, which regulated the mode in which election contests should be heard and determined! The language was: “ In such case no commission shall be issued until the court shall have determined and adjudged on such complaint as aforesaid.” By the 3d section of the sixth article of the constitution of 1838, it was made the duty of the governor to commission the prothonotaries and clerks of the courts elected in the several counties and districts of the Commonwealth. No such provision is contained in the constitution of 1873. Whether the omission was casual or designed, direct authority is given to issue commissions to no officers except justices of the peace and aldermen, by the 11th section of the 5th article ; judges of the Supreme Court, when two or more shall be elected at the same time, by the 17th section of the same article; the president judge of the court of criminal jurisdiction for.the counties of Schuylkill, Lebanon and Dauphin, as a judge of the Court of Common Pleas of Schuylkill county, by the 15th section of the schedule ; and associate judges not learned [398] in the law, by the 16th section of the schedule. The duty to commission judges of the Supreme Court would seem to he implied, however, from the provision of the 2d section of the 5th article, that “each judge whose commission shall first expire, shall in turn be chief justice.” The directions contained in the 16th, 18th and 19th sections of the schedule, that of the law judges of the several Courts of Common Pleas of Philadelphia and Allegheny, and throughout the state, the oldest in commission shall be president judge, also indicate an intention on the part of the convention to make no change in the mode by which the title of these officers had immemorially been authenticated. The constitution made no provisions whatever for commissions to the judges of the separate Orphans’ Courts, the police magistrates of Philadelphia, or county officers of any grade. The omission in the case of the judges, however, has been supplied by the Act of the 19th of May 1874, relating to the organization and jurisdiction of Orphans’ Courts; and commissions to the Philadelphia magistrates have been authorized by the 6th section of the Magistrates’ Courts Act of the 5th of February 1875. The 2d section of the schedule maintains in force all laws not inconsistent with the constitution. For granting commissions to prothonotaries and other county officers there is sufficient warrant to the governor in the Act of 1839, which, for this purpose, the constitution and the legislation under it have left entirely unimpaired. Upon this subject the Act of the 19th of May 1874 is equally silent with the constitution. It transfers the jurisdiction to hear and determine contested elections from the Common Pleas to the Quarter Sessions; it authorizes a petition by twenty-five qualified electors instead of the thirty required by the Act of 1839; it requires the verification of the petition by the oaths of five instead of two qualified electors; it extends the time allowed for filing the petition to thirty days instead of ten; it omits the direction to transmit a certified copy to the governor; and it makes no provision that, pending the contest, the commission shall be withheld. It was insisted at the argument on behalf of Barber that this statute supplied and replaced the fifth section and the proviso to the third section of the Act of 1839 ; that the commission to him was regularly and providently issued; and that it gave him the right to be installed in the office of prothonotary. The Act of the 19th of May 1874 was limited to a single subject-matter. It was enacted to carry into effect the requirements of'the 17th section of the eighth article of the constitution, that “the trial and determination of contested elections of electors of president and vice-president, members of the General Assembly, and of all public officers, whether state, judicial, municipal or local, shall be by the courts of law, or by one or more of the Jaw judges thereof.” The object in view was to replace a mass of incongruous and [399] uncertain legislation by a speedy, symmetrical and uniform plan for the settlement of peculiarly difficult, exciting and angry controversies. The title of the act described it as “ designating the several classes of contested elections in this Commonwealth, and providing for the trial thereof.” It did not profess to regulate elections, or to define the duties of public officers, or to impose any duty or confer any power on the governor to interpose between the candidate shown by the face of the returns to be elected, and the candidate shown by the face of the returns to be defeated. A right so to interpose could only be derived from a legislative intention somewhere Or in some way expressed. It has been settled that a proceeding instituted to contest an election cannot be frustrated by a commission issued afterwards: Ewing v. Filley, 7 Wright 384. The legal provisions made necessary by the general requirements of the eighth article of the constitution, were embodied in an act entitled “ A further supplement to the act regulating elections in this Commonwealth,” passed on the 30th of January 1874. By the 13th section of that supplement, the duty ivas imposed on the judges of the Courts of Common Pleas, of opening and computing the returns made by the election officers. But nothing in that section, or in the residue of the act, demanded any action of the court that could affect the rights of the parties in such a contest as this. Indeed, those rights were expressly preserved. The 13th section directed that, “ if palpable mistake or fraud shall be discovered, it shall, upon such hearing as may be deemed necessary to enlighten the court, be corrected by the court, and so certified; but all allegations of palpable fraud or mistake shall be decided by the said court within three days after the day the returns are brought into court for computation; and the said inquiry shall be directed only to palpable fraud or mistake, and shall not be deemed a judicial adjudication to conclude any contest now or hereafter to be provided by law.” No provision was made for transmitting to the governor, or the secretary of the Commonwealth, the result of the computation of votes, under the Act of the 30th of January, and none for certifying the judgment of the court in a contest in a case of the fourth class, under the Act of the 19th of May 1874. All steps ulterior to the specification prescribed by the two statutes were left to be governed by the provisions of existing laws, with which the legislature of 1874 decided wisely not to interfere. It was by force of the Act of 1839, that Barber was entitled to his commission. The terms which «authorized its issue were not more direct and clear than the terms of the proviso to the third section, which forbade it to go out Avhile a contest Avas undetermined. If, under the constitution of 1873, and the Act of the 19th of May 1874, -the proviso should be held to be repealed, it is not readily seen hoAV that part of the enactment AA'hich authorized the commission could be held to survive. Both clauses stand on the same ground. Both fall, if the Act of 1874 Avas designed to establish [400] a complete system in place of the system established by the Act of 1839. Both are unimpaired, if the Act of 1874 was passed simply to regulate the mode of trying and deciding election contests. Without repealing or negativing words in the new law, without a reference to the subject-matter of the proviso to the third section, and without any provision to stand in its place, there is nothing on which an implication of an intention to repeal it can be based. The proviso, and the several sections of the Act of 1874 relating to contested elections of the fourth class, may well stand together. To adopt the theory of a repeal by implication, would be to.disregard the broad equities of the question under review, as well as authoritatively-settled rules of law. “Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former act in the very matter (Poster’s Case, 11 Rep. 63), and the repugnancy such that the t-wo cannot be reconciled Regina v. Inhabitants of St. Edmunds, 2 Q. B. Rep. 84. To repeal a statute by implication, there must be a repugnancy between the provisions of the new law and the old so positive as to be irreconcilable: Potter’s Dwarris on Statutes 154, n. 4, and the cases there collected. Where a late statute is absolutely repugnant to a former one only in part, it repeals the former one only so far as the repugnancy extends, and leaves all the remainder in force: Van Rensselaer v. Snyder, 9 Barb. 308. In many material respects, the Act of 1839 has undoubtedly been modified by the new constitution and the Acts of 1874. Even the proviso to the third section has been affected by the provisions that have fixed the first Monday of January, in lieu of the first day of December succeeding an election, as the date from which commissions shall respectively have force. ' So far as it has remained unchanged, however, the Act of 1839 has all the controlling efficacy it would have if the constitution of 1873 had not been adopted, and the Acts of 1874 had not been passed. This cause was decided at the opening of the May term in 1877, mainly on grounds that have been stated in this opinion. Under the order made shortly after the judgment was entered, it has been re-argued at the present term. The appeal from the decree of the Quarter Sessions in favor of Barber, the candidate returned as elected, involving the merits of the contest, has been heard also, and the decree has been this day affirmed. Without looking forward to any eventual effect which that decision may or may not have on the rights of these parties that are involved in this litigation, the present duty of the court simply consists in affirming the judgment they regarded it their duty to enter a year ago. The judgment of ouster is reversed, and it is ordered and adjudged that judgment be entered in favor of S. W. Trimmer, the defendant in the case stated, with costs.