In re Contested Election of McNeill

Chief Justice Mercur delivered the opinion of the court, January 4th, 1886. The Constitution of Pennsylvania in force before that of 1874 went into effect, declared, “ Each house shall judge of the qualification of its members.” It further provided that contested elections should be determined by a committee to be selected, formed and regulated'in such a manner as should be regulated by law. Art. II., sec. 9, of the Constitution of 1874 declares, “Each house shall judge of the election and qualification of its members.” Art. VIII., sec. 17, provides that the trial and determination of contested elections of members of the General Assembly, and other officers therein named, shall be by the courts of law, or by one or more of the law judges thereof, and that the General Assembly should by general law designate the courts and judges by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto. A careful reading of this sec. 17 shows that its purpose is not to take from each house the power to judge of the election and qualifications of its members, given by sec. 9 cited. [241] Its purpose is merely to pi’ovide á method'for procuring and presenting to the respective house the evidence and information necessary for an intelligent decision, and to secure early action. It will be observed that the earlier Constitution authorized each house to judge of the “ qualifications ” of its members. The present Constitution changes the language, and authorizes it to judge of “ the election and qualifications ” of its members. While the addition of the word “ election ” ma]'not give to the house any power which it might not have exercised under authority to judge of the “ qualifications ” of its members, it clearly shows an intention not to restrict the legislative power. In furtherance of the view we have expressed, and to give due effect to both provisions of the Constitution cited, the Act of 19th May, 1874, was passed. Sec. 11 thereof provides that contested elections of senators and members of the House of Representatives shall be tried and determined by the Court of Common Pleas of the county where the person returned as such shall reside. Sec. 12 prescribes the time and the manner in which proceedings shall be commenced for contesting the election. Sec. 13 authorizes the court to compel the attendance of witnesses, and the production of all written, printed and documentary evidence required’ at the hearing. Sec. 14 declares that, after the hearing, the court shall, without unnecessary delay, decide which of the candidates voted for received the greatest number of legal votes, and is entitled to the certificate of election. After the reception of the certificate by the proper house,' sec. 15 provides the form and manner in which any claimant to a seat therein, who is aggrieved by the decision of the court in his case, may present his petition to said house. It further provides that the petition shall be referred to the standing committee on elections, which shall proceed to hear the claims' of the contestant and the respondent, and report the facts and a resolution expressing the decision of the committee “for. the consideration of the house, and the vote of the proper house on the claims of the-contestant and respondent shall be final.” This Act does not authorize the Common Pleas to enter any judgment or make any decree declaring which claimant is entitled to the office, but merely that it shall decide which candidate received the greatest number of legal votes and is entitled to the certificate of election.' This language appears to have been purposely used so as not to impinge on the power of the respective house to ultimately judge and determine. The same Act provides for the trial before the courts [242] of contested elections of divers other officers, and declares that the person who by the decision of the court shall appear to have received the largest number of votes “ shall be entitled to the office,” and be commissioned accordingly. In contested elections of senators and members the Act does not give any such power to the court, nor any such effect to its decision. Neither the facts found by the court, nor its opinion as to who is entitled to the certificate of election, are to control the judgment of the respective house. The legal effect thereof on the house is no greater than the report of one of its own committees. If the correctness of the finding be questioned, the house sends the whole case to its standing committee on elections, which must hear the claims of the contestant and respondent, and report the facts as it finds them to be, and a resolution expressing the decision of the committee. The Act imposes no restriction on the committee as to what evidence it shall hear and consider, nor from what source it shall be obtained. Whatever it reports is only “ for the consideration of the house.” Every fact and every conclusion of law found by the court and by the committee may be disregarded by the house, and its decision, expressed by its vote, as to which is entitled to the office, is final and conclusive. There is nothing in the Act of 1874 indicating that the legislature intended to authorize the correctness of the conclusion at which the Common Pleas arrived as to senators and members to be reviewed on certiorari by a superior court. On the contrary, the whole scope and purpose of the Act negatives such idea. Were we to assume jurisdiction to review this advisory action of the Common Pleas, whether we agreed or disagreed with it, our conclusion would be of no binding obligation on the house. Any presumption that the legislature intended to impose so useless a duty on this court cannot for one moment be entertained. Nothing less than clear and specific authority would justify us in taking jurisdiction to review the action of the Common Pleas in this class of cases. Such authority is neither expressed nor implied. Writ of certiorari quashed.