The Alleghanian. [volume] (Ebensburg, Pa.) 1859-1865, 1864-12-08
Legality of the Soldiers Vote.

1
delivered the following opinion with respect
to the case growing out of the contested
election in the XVIth judicial District,
Pennsylvania
The election OF Judges is provided for
by the act of the 10Th April, 1851. The
sixth section of that act provides that in
| case of the election of President Judge Of
any Judicial District composed of two or
more counties, the clerks of the return
judges of each county shall make out a
fair statement Of AL the votes which shall
have been given at such election within
the county for every person voted for,
which shall be signed by said judges and
attested by the clerks. This statement is
required to be produced at meeting of
the return judges Of the district. The
duty Of the return judges of the district is
set forth in the seventh section, which
provides that they shall cast up the sever
al county returns, and make sufficient
number of copies of a general return OF all
the votes given for such Office in said dis
trict, all of which they shall certify, and
one of which they shall transmit to the
Secretary of the Commonwealth in the
manner provided in the act. The tenth
section of the act requires the Governor
to grant commissions to the persons
elected.
The district return judges of tie 10th
Judicial District, composed of the counties
of Franklin, Bedford, Somerset, and Full
ton, have transmitted to the Secretary Of
the Commonwealth return in which they
state that they have not included the
Bedford county return of the soldiers
votes. copy Of which TREY annex, and
they assign as the reason for not including
it, that said return was not certified to by
nine Of tie return judges of Bedford
county. The return in question is signed
by thirteen Of the county return judges,
forming, therefore, a majority of the whole
number. The reason assigned for not IN
Guiding this return is palpably insufficient.
AS the authority of the return judges
concerns matters of public nature, ma
jority may act at a meeting lawfully
assembled, and their meeting is presumed
to be lawful in the absence of proof to the
contrary.
The clause in the seventy-ninth section
of the act of 1889, providing that the re-
turns sEall be signed by all the judges
present, does not govern the present case,
and, if it did, it would be construed, 1st,
as directing, merely; and, I'd, it would be
presumed that the return was signed by
all the judges then present, In the absence
of proof to the contrary.
If the said soldiers vote of Bedford
county be included, Alexander King has a
majority of all the votes 10 the district, and
is elected President Judge.
The question on which the Governor
requests my opinion is, whether it i, the
duty Of the Governor to include the said
soldiers vote in ascertaining to whom the
commission should be granted.
The district return judges have stated
in their return that Francis NJ. Kimmell,
having received the highest number OF
votes, is duly elected.
This statement is of no effect whatever
The law gives them no authority to de-
clare who is elected Their duty is sim
! ply to cast up the county returns, and
make a general return of all the votes
| given for the office. In this respect the
act of 1851, regulating the election of
| Judges, differs from the act of 1889, the
| 82d section Of which, relating to the cleo
| tion of members of Congress, and Of the
State Senate and House, provides that the
district return judges shall also return the
name of the person or persons elected, and
the S3d section provides that the return
judges shall In every case transmit to each
| of the persons elected to serve in Con-
| greas, or the State Legislature, a certificate
of his election. 1t would not be difficult
to suggest reasons for this difference, but
it is enough to say that the Legislature
has thought fit to make it, and that tho
present case must be governed By the act
of 1861.
The Governor then has before him the
return of the district return judges, from
which he is to ascertain who is the person
entitled to receive the commission. This
| is to be done by counting the votes given
for the several candidates, and of course
the candidate having majority of the
votes is legally elected and should be com
missioned.
In counting the votes, | am of opinion
that the Governor has no more right to
throw our the soldiers vote for Bedford
county than he would have to throw out
the whole vote of any one of the counties
! in the district. It is true that the dis
trict judges state that they have not iu-
cluded il, but they return copy of the
county return of it, and the Governor, by
refusing under such circumstances to
count it, would be acting as illegally as
! the district return Judges themselves.